PACE. A measure of length containing two feet and a half;  the
geometrical pace is five feet long. The common pace is the length
of a  step;   the geometrical  is the length of two steps, or the
whole space  passed over  by the  same  foot  from  one  step  to

   PACIFICATION. The  act of  making peace  between two countries
which have teen at war;  the restoration of public tranquillity.

   TO PACK.  To deceive by false appearance;  to counterfeit;  to
delude;  as packing a jury. (q. v.) Bac. Ab. Juries, M;  12 Conn.
R. 262.

   PACT, civil  law. An  agreement made by two or more persons on
the same subject in order to form some engagement, or to dissolve
or modify,  one  already  made,  conventio  est  duorum  in  idem
placitum  consensus   de  re   solvenda,  id.  est  facienda  vel
praestanda. Dig.  2, 14;   Clef  des Lois Rom. h. t.;  Ayl. Pand.
558;  Merl, Rep. Pacte, h. t.

  PACTIONS, International law. When contracts between nations are
to be performed by a single act, and their execution is at an end
at  once,   they  are   not  called   treaties,  but  agreements,
conventions or pactions. 1 Bouv. Inst. n. 100.

  PACTUM CONSTITUTAE PECUNIAE, civil law. An agreement by which a
person appointed  to his  creditor, a  certain day,  or a certain
time, at which he pro-mised to pay;  or it maybe defined, simply.
an agreement by which a person promises a creditor to pay him.

   2. When a person by this pact promises his own creditor to pay
him, there  arises a  new obligation  which does  not destroy the
former by  which he  was already bound, but which is accessory to
it;   and by  this multiplicity  of obligations  the right of the
creditor is strengthened. Poth. Ob. Pt. 2, c. 6, s. 9.

     3.  There  is  a  striking  conformity  between  the  pactum
constitutae pecuniae,  as  above  defined,  and  our  indebitatus
assumpsit. The pactum constitutae pecuniae was a promise to pay a
subsisting debt  whether natural or civil;  made in such a manner
as not  to extinguish  the preceding  debt, and introduced by the
praetor to  obviate  some  formal  difficulties.  The  action  of
indebitalus assumpsit  was brought upon a promise for the payment
of a  debt, it  was not  subject to  the wager  of law  and other
technical difficulties  of the  regular action  of debt;   but by
such  promise,   the  right   to  the  action  of  debt  was  not
extinguished nor  varied. 4  Rep. 91  to 95;  see 1 H. Bl. 550 to
655;   Doug. 6,  7;   3 Wood.  168, 169,  n. c;  1 Vin. Abr. 270;
Bro. Abr. Action sur le case, pl. 7, 69, 72;  Fitzh. N. B. 94, A,
n. a,  145 G;   1  New Rep.  295;  Bl. Rep. 850;  1 Chit. Pl. 89;
Toull. Dr. Civ. Fr. liv. 3, t. 3, c. 4, u. 388, 396.

   PACTUM DE NON PETANDO, civil law. An agreement made, between a
creditor and his debtor that the former will not demand, from the

         Bouvier's Law Dictionary : P1 : Page 1 of 100

latter the  debt due.  By this agreement the debtor is freed from
his obligation.  This is  not unlike the covenant not to sue, (q.
v.) of the common law. Wolff, Dr. de la Nat. §755.

   PACTUM DE  QUOTA LITIS.  An agreement by which a creditor of a
sum difficult  to  recover,  promises  a  portion,  for  example,
one-third, to  the person  who will  undertake to  recover it. In
general, attorneys will abstain from, making such a contract, yet
it is not unlawful.

   PAGODA, comm.  law. A  denomination of money in Bengal. In the
computation of  ad valorem duties, it is valued at one dollar and
ninety-four cent's.  Act of March 2, 1799, s. 61, 1 Story's L. U.
S. 626. Vide Foreign Coins.

  PAIS, or PAYS. A French word signifying country. In law, matter
in pais  is matter  of fact in opposition to matter of record:  a
trial per pais, is a trial by the country, that is, by a jury.

   PALFRIDUS, A  palfrey;  a horse to travel on. 1 Tho. Co. Litt.
471;  F. N. B. 93.

   PANDECTS, civil  law. The name of an abridgment or compilation
of the  civil law, made by order of the emperor Justinian, and to
which he  gave the  force of law. It is also known by the name of
Digest. (q. v.)

   PANEL, practice.  A schedule  or roll  containing the names of
jurors, summoned  by virtue  of a  writ  of  venire  facias,  and
annexed to  the writ.  It is  returned into  the court whence the
venire issued. Co. Litt. 158, b.

   PANNEL, Scotch  law. A  person,  accused  of  a  crime;    one

  PAPER-BOOK, practice. A book or paper containing an abstract of
all the  facts and pleadings necessary, to the full understanding
of a case.

  2. Courts of error and other courts, on arguments, require that
the judges  shall each be furnished with such a paper-book in the
court of  king's bench, in England, the transcript containing the
whole of the proceedings, filed or delivered between the parties,
when the  issue joined,  in an  issue  in  fact,  is  called  the
paper-book. Steph.  on Pl. 95;  3 Bl. Com. 317;  3 Chit. Pr. 521;
2 Str.  1131, 1266;   1  Chit. R.  277 2 Wils, R. 243;  Tidd, Px.

   PAPER DAYS,  Eng. law.  Days on which special arguments are to
take place.  Tuesdays and  Fridays in  term time  are paper  days
appointed by the court. Lee's Dict. of Pr. h. t.;  Arch. Pr. 101.

   PAPER MONEY.  By paper  money is understood the engagements to
pay money  which are  issued by  governments and banks, and which
pass as  money. Pardes.  Dr. Com.  n. 9. Bank notes are generally
considered as cash, and win answer, all the purposes of currency;
but paper  money is  not a  legal tender if objected to. See Bank
note, Specie, Tender.

         Bouvier's Law Dictionary : P1 : Page 2 of 100

  PAR, comm. law. Equal. It is used to denote a state of equality
or equal  value. Bills  of exchange, stocks, and the like, are at
par when  they sell for their nominal value;  above par, or below
par, when they sell for more or less.

   PARAGE. Equality of name or blood, but more especially of land
in the  partition of  an inheritance  among co-heirs, hence comes
disparage and disparagement. Co. Litt. 166.

   PARAGIUM. A Latin term which signifies equality. It is derived
from the  adjective par,  equal, and  made a  substantive by  the
addition of agium;  1 Tho. Co. Litt. 681.

   2. In  the ecclesiastical  law, by  paragium is understood the
portion which a woman gets on her marriage. Ayl. Par. 336.

  PARAMOUNT. That which is superior.

   2. It  is usually  applied to  the highest lord of the fee, of
lands, tenements,  or hereditaments.  F. N.  B. 135. Where A lets
lands to  B, and  he underlets  them to  C, in this case A is the
paramount, and  B is  the mesne  landlord. Vide  Mesne, and 2 Bl.
Com. 91;  1 Tho. Co. Litt. 484, n. 79;  Id. 485, n. 81.

  PARAPHERNALIA. The name given to all such things as a woman has
a right to retain as her own property, after her hushand's death;
they consist  generally of  her clothing,  jewels, and  ornaments
suitable to  her condition,  which she used personally during his

   2. These, when not extravagant, she has a right to retain even
against creditors;   and,  although in  his lifetime  the hushand
might have given them away, he cannot bequeath such ornaments and
jewels by  his will. 2 Bl. Com. 430;  2 Supp. to Ves. jr. 376;  5
Com. Dig. 230;  2 Com. Dig. 212;  11 Vin. Ab. 176;  4 Bouv. Inst.
n. 8996-7.

  PARATITLA, civil law. An abbreviated explanation of some titles
or books of the Code or Digest.

   PARATUM HABEO.  A return  made by  the sheriff  to a capias ad
respondendum, which  signified that he had the defendant ready to
bring into  court. This  was a fiction where the defendant was at
large. Afterwards  be was  required by  statute to take bail from
the defendant,  and he  returned cepi  corpus and  bail bond. But
still he  might be  ruled to  bring in the body. 7 Penn. St. Rep.

   PARAVAIL. Tenant  paravail is the lowest tenant of the fee, or
he who is the immediate tenant to one who holds of another. He is
called tenant  paravail, because it is presumed he has the avails
or profits of the land. F. N. B. 135;  2 Inst, 296.

   PARCEL, estates. Apart of the estate. 1 Com. Dig. Abatement, H
511 p.  133;   5 Com.  Dig. Grant,  E 10, p. 545. To parcel is to
divide an estate. Bac, Ab. Conditions, 0.

         Bouvier's Law Dictionary : P1 : Page 3 of 100

   PARCENARY. The  state or  condition of  holding title to lands
jointly by  parceners, before  the common  inheritance  has  been
divided. Litt.  sec. 56.  Vide 2  Bl.  Com.  187;    Coparcenary;
Estate In coparcenary.

  PARCENERS, Engl. law. The daughters of a man or woman seised of
lands and tenements in fee simple or fee tail, on whom, after the
death of  such ancestor,  such lands  and tenements  descend, and
they enter. Litt. s. 243;  Co. Litt. 164 2 Bouv. Inst. n. 1871-2.
Vide Coparceners.

   PARCO FRACITO,  Engl. law.  The name of a writ against one who
violently breaks a pound, and takes from thence beasts which, for
some trespass  done, or  some other  just  cause,  were  lawfully

   PARDON, crim.  law, pleading.  A pardon  is an  act of  grace,
proceeding from  the power  entrusted with  the execution  of the
laws, which  exempts the  individual on whom it is bestowed, from
the punishment  the law  inflicts for a crime he has committed. 7
Pet. S. C. Rep. 160.

   2. Every  pardon granted to the guilty is in derogation of the
law;   if the  pardon be  equitable, the  law is, bad;  for where
legislation and  the  administration  of  the  law  are  perfect,
pardons must  be a violation of the law, But as human actions are
necessarily  imperfect,   the  pardoning  power  must  be  vested
somewhere in  order to  prevent injustice, when it is ascertained
that an error has been committed.

   3. The subject will be considered with regard, 1. To the kinds
of pardons.  2. By  whom they  are to  be granted.  3.  For  what
offences. 4. How to be taken advantage of 5. Their effect.

   4. -  §1, Pardons  are general  or special.  1. The former are
express, when  an  act  ofthe  legislature  is  passed  expressly
directing that  offences of  a certain class;  shall be pardoned,
as in  the case  of an  act of  amnesty. See  Amnesty. A  general
pardon is  implied by  the repeal  of a  penal statute,  because,
unless otherwise provided by law, an offence against such statute
while it  was in  force cannot be punished, and the offender goes
free. 2  Overt. 423.  2. Special  pardons  are  those  which  are
granted by the pardoning power for particular cases.

   5. Pardons are also divided into absolute and conditional. The
former are  those which  free the  criminal without any condition
whatever;  the. fatter are those to which a condition is annexed,
which must  be performed  before the  pardon can have any effect.
Bac. Ab.  Pardon, E;   2 Caines, R. 57;  1 Bailey, 283;  2 Bailey
516. But see 4 Call, R. 85.

   6. -  §2. The  constitution of the United States gives to the,
president in  general terms,  "the power  to grant  reprieves and
pardons for  offences against  the United States." The same power
is given  generally to  the governors  of the  several states  to

         Bouvier's Law Dictionary : P1 : Page 4 of 100

grant pardons  for  crimes  committed  against  their  respective
states, but in some of them the consent of the legislature or one
of its branches is required.

   7. - §3. Except in the case of impeachment, for which a pardon
cannot be  granted, the pardoning power may grant a pardon of all
offences  against   the  government,  and  for  any  sentence  or
judgment. But  such a  pardon does  not operate  to discharge the
interest which  third persons  may have acquired in the judgment;
as, where  a penalty  was incurred  in violation  of the  embargo
laws, and  the custom  house officers became entitled to one-half
of the penalty, the pardon did not discharge that. 4 Wash. C. C
R. 64. See 2 Bay, 565;  2 Whart. 440;  7 J. J. Marsh. 131.

         Bouvier's Law Dictionary : P1 : Page 5 of 100

   8. -  §4. When  the pardon  is general,  either by  an act  of
amnesty, or  by the repeal of a penal law, it is not necessary to
plead it,  because the court is bound, ex officio, to take notice
of it. And the criminal cannot even waive such pardon, because by
his admittance,  no one  can give  the court power to punish him,
when it judicially appears there is no law to do it. But when the
pardon is  special, to  avail the  criminal  it  must  judicially
appear that  it has been accepted, and for this reason it must be
specially pleaded. 7 Pet. R. 150, 162.

   9. -  §5. The effect of a pardon is to protect from punishment
the criminal  for the  offence pardoned,  but  for  no  other.  1
Porter, 475.  It seems that the pardon of an assault and battery,
which afterwards  becomes murder  by  the  death  of  the  person
beaten, would  not operate  as a  pardon of  the murder. 12 Pick.
496. In  general, the  effect of  a full pardon is to restore the
convict to all his rights. But to this there are some exceptions:
1st. When  the criminal has been guilty of perjury, a pardon will
not qualify  him to be a witness at any time afterwards. 2d. When
one was  convicted of an offence by which he became civilly dead,
a pardon did not affect or annul the second marriage of his wife,
nor the  sale of  his property by persons appointed to administer
on his  estate, nor  divest his heirs of the interest acquired in
his estate  in consequence  of his civil death. 10 Johns. R. 232,

   10. -  §6. All  contracts, made  for the buying or procuring a
pardon for  a convict,  are void.  And  such  contracts  will  be
declared null  by a  court of equity, on the ground that they are
opposed to public policy. 4 Bouv. Inst. n. 3857. Vide, generally,
Bac. Ab.  h. t.;  Com. Dig. h. t.;  Nels. Ab. h. t.;  Vin. Ab. h.
t.;   13 Petersd.  Ab. h.  t.;  Dane's Ab. h. t.;  3 lust. 233 to
240;   Hawk. b. 2, c. 37;  1 Chit. Cr. L. 762 to 778;  2 Russ. on
Cr. 595 Arch. Cr. Pl. 92;  Stark. Cr. Pl. 368, 380.

 PARENTAGE. Kindred. Vide 2 Bouv. Inst. n. 1955;  Branch;  Line.

 PARENTS.  The lawful father and mother of the party spoken of. 1
Murph. R. 336;  11 S. & R. 93.

 2.  The term  parent differs  from that  of ancestor, the latter
embracing not only the father and mother, but every per ascending
line. It  differs also  from predecessor,  which  is  applied  to
corporators. Wood's  Inst. 68;   7  Ves. 522;   1  Murph. 336;  6
Binn. 255. See Father;  Mother.

 3.  By the  civil law  grandfathers and  grandmothers, and other
ascendants, were,  in certain cases, considered parents. Dict. de
Jurisp. Parente.  Vide 1 Ashm. R. 55;  2 Kent, Com. 159;  5 East,
R. 223;  Bouv. Inst. Index, h. t.

 PARES. A man's equals;  his peers. (q. v.) 3 Bl. Com. 349.

 PARES  CURIE, feudal law, Those vassals who were bound to attend
the lord's court were so called. Ersk. Inst. B. 2, tit. 3, s. 17.

         Bouvier's Law Dictionary : P1 : Page 6 of 100

 PARI DELICTO crim. law. In a similar offence or crime;  equal in
guilt. A person who is in pari delicto with another, differs from
a particeps criminis in this, that the former always includes the
latter but the latter does not always include the former. 8 East,
381, 2.

   PARI MATERIA.  Of the  same matter;  on the same subject;  as,
laws pari materia must be construed with reference to each other.
Bac. Ab. Stat. I. 3.

  PARI PASSU. By the same gradation.

   PARISH. A  district of  country of  different extents.  In the
ecclesiastical law  it signified  the territory  committed to the
charge of  a parson,  vicar, or other minister. Ayl. Parerg. 404;
2 Bl. Com. 112. In Louisiana, the state is divided into parishes.

   PARIUM JUDICIUM.  The trial  by jury , or by a man's peers, or
equals, is so called.

   PARK, Eng. law. An enclosed chase (q.v.) extending only over a
man's own  grounds. The  term park  signifies an enclosure. 2 Bl.
Com. 38.

   PARLIAMENT. This  word, derived  from the French parlement, in
the English  law, is  used to designate the legislative branch of
the government  of Great Britain, composed of the house of lords,
and the house of commons.

   2. It  is an  error to  regard the  king of  Great Britain  as
forming a  part of parliament. The connexion between the king and
the Iords  spiritual, the lords temporal, and the commons, which,
when assembled  in parliament,  form the,  three  states  of  the
realm, is  the same  as that  which subsists between the king and
those states - the people at large - out of parliament;  Colton's
Records, 710;   the  king not  being, in  either case,  a member,
branch, or  coestate, but   standing  solely in  the relation  of
sovereign or  head. Rot.  Par. vol.  iii,. 623 a.;  2 Mann. & Gr.
457 n.

   PAROL. More  properly  parole.  A  French  word,  which  means
literally, word  or speech.  It is  used to distinguish contracts
which are  made verbally  or in writing not under seal, which are
called, parol.  contracts, from  those which are under seal which
bear the  name of  deeds or specialties (q. v.) 1 Chit. Contr. 1;
7 Term. R. 3 0 351, n.;  3 Johns. Cas. 60;  1 Chit. Pl. 88. It is
proper to  remark that  when a  contract is  made under seal, and
afterwards it  is   modified verbally,  it becomes wholly a parol
contract. 2 Watts, 451;  9 Pick. 298;  13 Wend. 71.

   2. Pleadings  are frequently  denominated the  parol. In  some
instances the  term parol  is used to denote the entire pleadings
in a  cause as  when in an action brought against an infant heir,
on an  obligation of  his ancestors,  he prays that the parol may
demur, i.  e., the  pleadings may be stayed, till he shall attain
full age.  3 Bl.  Com. 300;   4  East, 485 1 Hoffm. R. 178. See a

         Bouvier's Law Dictionary : P1 : Page 7 of 100

form of a plea in abatement, praying that the parol may demur, in
1 Wentw.  Pl. 43;  and 2 Chit. Pl. 520. But a devisee cannot pray
the parol to demur. 4 East, 485.

   3. Parol evidence is evidence verbally delivered by a witness.
As to  the cases when such evidence will be received or rejected,
vide Stark,  Ev. pt.  4, p. 995 to 1055;  1 Phil. Ev. 466, c. 10,
s. 1;  Sugd. Vend. 97.

   PAROL LEASES.  An agreement  made verbally,  not  in  writing,
between the  parties, by  which one of them leases to the other a
certain estate.

  2. By the English statute of frauds of 29 Car. III, c. 3, s. 1,
2, and  3, it is declared, that "all leases, estates, or terms of
years, or  any uncertain  interest in  lands, created  by  livery
only, or  by parol,  And not  put in  writing, and  signed by the
party, should  have the  force and effect of leases or estates at
will only,  except leases  not exceeding the term of three years,
whereupon the  rent reserved  during the term shall amount to two
third parts  of the  full improved  value of  the thing demised."
"And that  no lease  or estate,  either of  freehold or  term  of
years, should  be assigned,  granted, or  surrendered, unless  in
writing." The  principles of  this statute have been adopted with
some modifications,  in nearly  all the  states of  the Union.  4
Kent, Com. 95;  1 Hill. Ab. 130

   PAROLE, international  law. The  agreement of persons who have
been taken  by an  enemy that  they will  not again  take up arms
against those  who captured  them, either  for a limited time, or
during the continuance of the war. Vattel, liv. 3, c. 8, §151.

   PARRICIDE, civil  law. One  who murders  his father;    it  is
applied, by  extension,  to  one  who  murders  his  mother,  his
brother, his sister, or his children. The crime committed by such
person is  also called parricide. Merl. Rep. mot Parricide;  Dig.
48, 9, 1, 1. 3, 1. 4.

   2. This  offence is  defined almost  in the  same words in the
penal code of China. Penal Laws of China, B. 1, s. 2, §4.

   3. The criminal was punished by being scourged, and afterwards
sewed in a sort of sack, with a dog, a cock, a viper, and an ape,
and then  thrown into the sea, or into a river;  or if there were
no water,  he was  thrown in this manner to wild beasts. Dig. 48,
9, 9;   C. 9, 17, 1, 1. 4, 18, 6;  Bro. Civ;  . Law, 423;  Wood's
Civ. Law, B. 3, c. 10, s. 9.

   4. By  the laws  of France  parricide is  the crime of him who
murders his  father or  mother, whether  they, be the legitimate,
natural or  adopted parents  of the  individual, or the murder of
any other  legitimate ascendant. Code Penal, art. 297. This crime
is there  punished by  the criminal's being taken to the place of
execution without  any other  garment than his shirt, barefooted,
and with  his head  covered with a black veil. He is then exposed
on the  scaffold while an officer of the court reads his sentence
to the  spectators;   his right  hand is  then cut off, and he is
immediately put to death. Id. art. 13.

         Bouvier's Law Dictionary : P1 : Page 8 of 100

   5. The  common law  does not  define this  crime, and makes no
difference between  its punishment, and the punishment of murder.
1 Hale's P. C. 380;  Prin. Penal Law, c. 18, §8, p. 243;  Dalloz,
Dict. mot Homicide.

   PARSON, eccles.  law. One  who has  full possession of all the
rights of a parochial church.

   2. He  is so called because by his person the church, which is
an invisible  body, is  represented:   in England he is himself a
body corporate  it order  to protect and defend the church (which
he personates)  by a  the minority, if required to bring Story on
Partn. §489. 1 Bouv. Inst. n. 1217. 398;  5 Com. Dig. 346.

   PARTICEPS FRAUDIS.  fraud. Both  parties be in pari delicto is
not allowed  to allege  his own  turpitude in  such  cases,  when
defendant at  law, or  prevented from alleging it, when plaintiff
in equity,  whenever the  refusal to execute the contract at law,
or the refusal to relieve against it in equity, would give effect
to the  original purpose,  and encourage  the parties engaged, in
such transactions.  4 Rand.  R. 372;   1 Black. R. 363;  2 Freem.

   PARTICULAR AVERAGE.  This term,  partipular average,  has been
condemned as  not  being  exact.  See  Average.  It  denotes,  in
general, every  kind of  expense or  damage, short  of total loss
which regards  a particular  concern, and which is to be borne by
the proprietor  of that  concern alone.  Between the  insurer and
insured, the  term includes losses of this description, as far as
the  underwriter  is  liable.  Particular  average  must  not  be
understood as  a total  loss of  a part;   for these two kinds of
losses are  perfectly distinct from each other. A total loss of a
part may  be recovered,  where a  particular average would not be
recoverable. See Stev. on Av. 77.

  PARTICULAR AVFRMENT, pleading. Vide Avermzent.

   PARTICULAR CUSTOM.  A particular  custom  is  one  which  only
affects the  inhabitants of some particular district. To be good,
a particular  custom must  possess these  requisites:  1. It must
have been  used so long that the memory of man runneth not to the
contrary. 2.  It must  have been  continued. 3. It must have been
peaceable. 4. It must be reasonable. 5. It must be certain. 6. It
must be  consistent with  itself. 7.  lt must  be consistent with
other customs. 1 Bl. Com. 74, 79.

   PARTICULAR ESTATE.  An estate  which is carved out of a larger
and which  precedes a  remainder;   as, an estate for years to A,
remainder to B for life;  or, an estate, for life to A, remainder
to' B  in tail:   this  precedent estate is called the particular
estate. 2  Bl. Com. 165;  4 Kent, Com. 226;  16 Vin. Abr. 216;  4
Com. Dig. 32;  5 Com. Dig. 346.

   PARTTICULAR, LIEN,  contracts. A  right which  a person has to
retain property  in respect  of money  or labor  expended on such

         Bouvier's Law Dictionary : P1 : Page 9 of 100

particular property. For example, when a tailor has made garments
out of cloth delivered to him for the purpose, he is not bound to
part with  the clothes  until his  employer, has paid him for his
services;   nor a  ship  carpenter  with  a  ship  which  he  has
repaired;   nor can  an engraver be compelled to deliver the seal
which he  has engraved  for another,  until his  compensation has
been paid.  2 Roll.  Ab. 92;   3  M. &  S. 167;  14 Pick. 332;  3
Bouv. Inst. n. 2514. Vide Lien.

   PARTICULARS, practice.  The items of which the accounts of one
of the parties is composed, and which are frequently furnished to
the opposite party in a bill of particulars. (q. v.)

   PARTIES, contracts. Those persons who engage themselves to do,
or not to do the matters and things contained in an agreement.

   2. All  persons generally  can be parties to contracts, unless
they labor under some disability.

   3. Consent  being essential to all valid contracts, it follows
that persons  who  want,  first,  understanding;    or  secondly,
freedom to  exercise their  will, cannot be parties to contracts.
Thirdly, persons  who  in  consequence  of  their  situation  are
incapable to  enter into  some particular contract. These will be
separately considered.

   4. -  §1. Those persons who want understanding, are idiots and
lunatics;  drunkards and infants,

  5. - 1. The contracts of idiots and lunatics, are riot binding;
as they  are unable  from mental  infirmity, to form any accurate
judgment of  their actions;   and  consequently,  cannot  give  a
serious and  sufficient  consideration  to  any  engagement.  And
although it was formerly a rule that the party could not stultify
himself;   39 H.  VI. 42;   Newl. on Contr. 19 1 Fonb. Eq. 46, 7;
yet this rule has been so relaxed, that the defendant may now set
up this  defence. 3  Camp. 128;   2 Atk. 412;  1 Fonb. Eq. n. d.;
and see  Highm. on  Lun. 111,  112;   Long on Sales, 14;  3 Day's
Rep. 90 Chit. on Contr. 29, 257, 8;  2 Str. 1104.

   6. -  2. A  person in  a state of complete intoxication has no
agreeing mind;   Bull.  N. P. 172;  3 Campb. 33;  Sugd. Vend. 154
Stark.  Rep.   126;    and  his  contracts  are  therefore  void,
particularly if  he has been made intoxicated by the other party.
1 Hen.  & Munf. 69;  1 South. Rep. 361;  2 Hayw. 394;  see Louis.
Code, art. 1781;  1 Clarke's R. 408.

   7. - 3. In general the contract of an infant, however fair and
conducive to  his interest  it may  be, is  not binding  on  him,
unless the  supply of  necessaries to  him be  the object  of the
agreement;   Newl. Contr. 2;  1 Eq. Cas. Ab. 286;  l Atk. 489;  3
Atk. 613;   or  unless he confirm the agreement after he shall be
of full  age. Bac.  Abr. Infancy;  I 3. But he may take advantage
of contracts  made with  him,  although  the  consideration  were
merely the  infant's promise,  as in an action on mutual promises
to marry. Bull. N. P. 155;  2 Str. 907;  1 Marsh. (Ken.) Rep. 76;
2 M. & S. 205. See Stark. Ev. pt. iv. page 724;  1 Nott & McCord,

         Bouvier's Law Dictionary : P1 : Page 10 of 100

197;   6 Cranch,  226;   Com. Dig. Infant;  Bac. Abr. Infancy and
Age;   9 Vin.  Ab. 393, 4;  Fonbl. Eq. b. 1 c. 2;  §4, note b;  3
Burr. 1794;  1 Mod. 25;  Stra. 937;  Louis. Code, article 1778.

   8. - §2. Persons who have understanding, who, in law, have not
freedom to  exercise their  will, are married women;  and persons
under duress.

   9. -  1. A married woman has, in general, no power or capacity
to contract  during the  coverture. Com.  Dig. Baron  & Feme,  W;
Pleader, 2  A 1.  She has  in  legal  contemplation  no  separate
existence, her  hushand and  herself being in law but one person.
Litt. section  28;   see Chitty  on Cont.  39, 40. But a contract
made with  a married woman, and for her benefit, where she is the
meritorious cause  of action,  as in  the instance  of an express
promise to  the wife,  in consideration of her personal labor, as
that she would cure a wound;  Cro. Jac. 77;  2 Sid. 128;  2 Wils.
424;   or of  a bond  or promissory  note, payable  on  the  face
thereof to her, or to herself and hushand, may be enforced by the
hushand and  wife, though  made during  the coverture.  2 M. & S.
396, n.  b.;   2 Bl. Rep. 1236;  1 H. Black. 108. A married woman
has no  original power or Authority by virtue of the marital tie,
to bind  her bushand  by any of her contracts. The liability of a
bushand on  his wife's  engagements rests  on the  idea that they
were formed by his authority;  and if his assent do not appear by
express evidence  or by  proof of circumstances from which it may
reasonably, be inferred, he is not liable. 1 Mod. 125;  3 B. & C.
631;  see Chitty on Cont. 39 to 50.

   10. -  2. Contracts  may be  avoided on account of duress. See
that word, and also Poth. Obl. P. 1, c. 1, s. 1, art. 3, §2.

   11. -  §3. Trustees, executors, administrators, guardians, and
all other,  persons who  make a  contract for  and on  behalf  of
others, cannot  become, parties  to such  contract on  their own.
account;   nor are they allowed in any case to purchase the trust
estate for  themselves. 1  Vern. 465;   2 Atk. 59;  10 Ves. 3;  9
Ves. 234;   12 Ves. 372, 3 Mer. Rep. 200;  6 Ves. 627;  8 Bro. P.
C. 42  10 Ves.  381;   5 Ves. 707;  13 Ves. 156;  1 Pet. C. C. R.
373;   3 Binn.  54;  2 Whart. 53;  7 Watts, 387;  13 S. & R, 210;
5 Watts,  304;  2 Bro. C. C. 400;  White's L. C. in Eq. *104-117;
9 Paige,  238, 241, 650, 663;  1 Sandf. R. 251, 256;  3 Sandf. R.
61;  2 John. Ch. R. 252;  4 How. S. C. 503;  2 Whart. 53, 63;  l5
Pick. 24, 31. As to the transactions between attorneys and others
in relation  to client's  property, see  2 Ves. jr. 201;  1 Madd.
Ch. 114;   15 Ves. 42;  1 Ves. 379;  2 Ves. 259. The contracts of
alien enemies  may in, general be avoided, except when made under
the license of the government, either express or implied. 1 Kent,
Com. 104. See 15 John. 6;  Dougl. 641. As to the persons who make
contracts in equity, see Newl. Cont. c. 1, pp. l to 33.

  PARTIES TO ACTIONS. Those persons who institute actions for the
recovery of their rights, and those persons against whom they are
instituted, are  the parties  to the  actions;   the  former  are
called plaintiffs,  and the  latter, defendants. The term parties
is understood  to include all persons who are directly interested
in the  subject-matter in  issue, who have right to make defence,

         Bouvier's Law Dictionary : P1 : Page 11 of 100

control the  proceeding, or appeal from the judgment. Persons not
having these  rights are  regarded as  strangers to the cause. 20
How. St. Tr. 538, n.;  Greenl. Ev. §523

   2. It  is of the utmost importance in bringing actions to have
proper parties,  for however  just and  meritorious the claim may
be, if  a mistake  has been  made in making wrong persons, either
plaintiffs or  defendants, or  including  too  many  or  too  few
persons as parties, the plaintiff may in general be defeated.

   3. Actions  are naturally  divided into those which arise upon
contracts, and those which do not, but accrue to the plaintiff in
consequence of  some wrong  or injury committed by the defendant.
This article  will therefore  be divided  into two  parts,  under
which will  be briefly  considered, first, the parties to actions
arising upon  contracts;   and, secondly,  the parties to actions
arising upon  injuries or  wrongs,  unconnected  with  contracts,
committed b the defendant.

   4. - Part I. Of parties to actions arising on contracts. These
are the plaintiffs and the defendants.

   5. -  Sect. 1.  Of the plaintiffs. These will be considered as

   §1. Between  the original contracting parties. An action. on a
contract, whether  express or implied, or whether it be by parol,
or under  seal, or  of record, must be brought in the name of the
party in  whom the legal interest is vested. 1 East, R. 497;  and
see Yelv.  25, n. l;  13 Mass. Rep. 105;  1 Pet. C. C. R. 109;  1
Lev. 235;   3  Bos. & Pull. 147;  1 Ii. Bl. 84;  5 Serg. & Rawle,
27;   Hamm. on  Par. 32;  2 Bailey's R. 55;  16 S. & R. 237,;  10
Mass. 287;  15 Mass. 286 10 Mass. 230;  2 Root, R. 119.

   6.- §2.  Of the  number of  plaintiffs who  must join.  When a
contract is  made with  several, if  their legal  interests  were
joint, they  must all,  if living,  join in  the action  for  the
breach of  the contract.  1 Saund. 153, note 1;  8 Serg. & Rawle,
308;   10 Serg. & Rawle, 257;  10 East, 418;  8 T. R. 140;  Arch.
Civ. Pl.  58;   Yelv. 177,  note 1. But dormant partners need not
join their  copartners. 8  S. & R. 85;  7 Verm. 123;  2 Verm. 65;
6 Pick. 352;  4 Wend. 628;  8 Wend. 666;  3 Cowen, 84;  2 Harr. &
Gill, 159.  When a contract is made and a bond is given to a firm
by a particular name, as A B and Son, the suit must be brought by
the actual partners, the two sons of A B, t-he latter having been
dead several  years at  the time of making the contract. 2 Campb.
548. When  a person who has no interest in the contract is joined
with those  who have,  it is  fatal. 19 John. 213 2 Penn. 817;  2
Greenl. 117.

   7. -  §3. When the interest of the contract has been assigned.
Some contracts  are assignable  at law;  when these are assigned,
the assignee may maintain an action in his own name. Of this kind
are   promissory    notes,   bills   of   exchange,   bail-bonds,
replevin-bonds;   Hamm. on Part. 108;  and covenants running with
the land  pass with  the tenure,  though not made with assigns. 5
Co. 24;   Cro. Eliz., 552;  3 Mod. 338;  1 Sid. 157;  Hamm, Part.

         Bouvier's Law Dictionary : P1 : Page 12 of 100

116;   Bac. Abr.;  Covenant, E 5. When a contract not is signable
at law  has been  assigned, and  a recoverly  on such contract is
sought, the  action must  be in  the name of the assignor for the
use of the assignee.

   8. -  §4. When  one or more of several obligees, &c., is dead.
When one  or more  of several  obligees, covenantees, partners or
others, haviug  a joint  interest in  the contract;   not running
with the  land, dies,  the action  must be brought in the name of
the survivor,  and that  fact averred in the declaration. 1 Dall.
65, 248;  1 East, R. 497;  2 John. Cas. 374;  4 Dalt. 354;  Arch.
Civ. Pl.  54, 5;   Addis. on Contr. 285;  1 Chan. Rep. 31;  Yelv.

   9. -  §5. In  the case  o executors and administrators. When a
personal contract,  or a  covenant not running with the land, has
been made  with one  person only,  and he is dead, the action for
the breach  of it  must be brought in the name of the executor or
administrator in  whom the  legal interest  in  the  contract  is
vested;   2 H.  Bl. 310;   3 T. R. 393;  and all the executors or
administrators must  join. 2 Saund. 213;  Went.95;  1 Lev.161;  2
Nott & McCord, 70;  Hamm. on Part. 272.

   10. - §6. In the case of bankruptcy or insolvency. In the case
of the  bankruptcy or  insolvency of a person who is beneficially
interested in the performance;  of a contract made before the act
of bankruptcy or before, the assignment under the insolvent laws,
the action  should be  brought in  the name  of his  assignees. 1
Chit. Pl. 14;  2 Dall. 276;  3 Yeates, 520;  7 S. & R. 182;  5 S.
& R. 394;  9 S, & R. 434. See 3 Salk. 61;  3 T. R. 779;  Id. 433;
Hamm. on Part. 167;  Com. Dig. Abatement, E 17.

  11. - §7. In case of marriage. This part of the subject will be
considered with  reference to  tbose cases. 1st. When the hushand
and wife,  must join.  2d. When  the hushand  must sue alone. 3d.
When the  wife must  sue alone. 4th. When they may join or not at
their election.  5th. Who  is to  sue in the case of the death of
the hushand or wife. 6th. When a woman marries, lis pendens.

   12. -  1. To  recover the  chose in  action of  the wife,  the
hushand must,  in general,  join, when  the cause of action would
survive. 3 T. R. 348;  1 M. & S. 180;  Com. Dig. Baron & Feme, V;
Bac. Ab. Baron & Feme, K;  1 Yeates' R. 551;  1 P. A. Browne's R.
263;  1 Chit. Pl. 17.

   13. -  2. In general the wife cannot join in any action upon a
contract. made  during coverture,  as for  work and  labor, money
lent, or  goods sold  by her  during that  time, 2 Bl. Rep. 1239;
and see 1 Salk. 114;  2 Wils. 424.;  9 East, 412;  1 Str. 612;  1
M. &  S. 180;   4 T. R. 516;  3 Lev. 103;  Carth. 462;  Ld. Raym.
368;  Cro, Eliz. 61;  Com. Dig. Baron & Feme, W.

   14. -  3. When the hushand is civiliter mortuus, see 4 T. Rep.
361;   2 Bos.  & Pull.  165;   4 Esp.  R. 27;  1 Selw. N. P. 286;
Cro. Eliz.  1519;   9 East,  R. 472;   Bac. Ab. Baron & Feme, M.;
or, as  has been  decided in England, when he is an alien and has
left the  country, or  has never been in it, the wife may, on her

         Bouvier's Law Dictionary : P1 : Page 13 of 100

own separate contracts, sue alone. 2 Esp. R. 544;  1 Bos. & Pull.
357;  2 Bos. & Pull. 226;  1 N. R. 80;  11 East, R. 301;  3 Camp.
R. 123;   5  T. R. 679. But the rights of such hushand being only
suspended, the  disability may  be removed,  in one  case,  by  a
pardon, and, in the other, by the hushand's return, and then:  he
must be joined. Broom on Part. s. 114.

   15. - 4. When a party being indebted to a wife dum sola, after
the  marriage   gives  a   bond  to   the  hushand  and  wife  in
consideration of such debt, they may join, or the hushand may sue
alone on  such contract. 1 M. & B. 180;  4 IT. R. 616 1 Chit. Pl.

  16. - 5. Upon the death of the wife, if the hushand survive, he
may sue for, anything he became entitled to during the coverture;
as for  rent accrued  to the wife during the coverture. 1 Rolle's
Ab. 352, pl. 5;  Com. Dig. Baron & Feme, Z;  Co. Litt. 351, a, n.
1. But  the hushand cannot sue in his own right for the choses in
action of  the wife,  belonging to her before coverture. Hamm. on
Part. 210 to 215.

   17. When  the wife  survives the  hushand, she  may sue on all
contracts entered  into with  her before  coverture, which remain
unsatisfied;   and she may recoverall arrears of rent of her real
estate, which  became due  during the  coverture, or  their joint
demise. 2 Taunt. 181;  1 Roll's Ab. 350 d.

  18. - 6. When a suit is instituted by a single woman, or by her
and others,  and she  afterwards marries,  lis pendens,  the suit
abates. 1 Chit. Pl. 437;  14 Mass. R. 295;  Brayt. R. 21.

   19. - §8. When the plaintiff, is a foreign government, it must
have been recognized by the government of this country to entitle
it to  bring an action. 3 Wheat. R. 324;  Story, Eq. Pl. §55. See
4 Cranch,  272;   9 Ves.  347;  10 Ves. 354;  11 Ves. 283;  Harr.
Dig. 2276.

   20. -  Sect. 2. Of the defendants. These will be considered in
the following  order:   §1. Between  the  original  parties.  The
action upon  an express  contract, must  in  general  be  brought
against the  party who  made  it.  8  East,  R.  12.  On  implied
contracts against  the person  subject to  the  legal  liability.
Ramm. Part.  48;   2 Hen.  Bl. 563. Vide 6 Mass. R. 253;  8 Mass.
Rep. 198;  11 Mass. R. 335;  6 Binn. R. 234;  1 Chit. Pl. 24.

   21. -  §2. Of  the number  of defendants.  For the breach of a
joint contract  made by  several parties, they should all be made
defendants;   1 Saund:   153,  note 1;   Id.  291 b,  n. 4;  even
though one  be a  bankrupt or  insolvent. 2  M. &  S. 23. Even an
infant must  be joined, unless the contract as to him be entirely
void. 3  Taunt. 307;   5  John R.  160. Vide  5 John. R. 280;  11
John. R.  101;   5 Mass.  R. 270;   1  Pick. 500.  When  a  joint
contractor is  dead, the  suit  should  be  brought  against  the
survivor, 1  Saund. 291,  note 2. The misjoinder of defendants in
an action  ex contractu,  by joining one who is not a contractor,
is fatal.  3 Conn.  194;   Pet. C.  C. 16;  2 J. J. Marsh. 88;  1
Breese, 128;  2 Rand. 446;  10 Pick. 281.

         Bouvier's Law Dictionary : P1 : Page 14 of 100

   22. -  3. In  case of  a change  of credit,  and of  covenants
running with  the land,  &c. In  general in  the case  of a  mere
personal contract,  the action  for the  breach of  it, cannot be
brought against  the person  to whom  the contracting  party  has
assigned his  interest, and the original party can alone be sued;
for example,  if two partners dissolve their partnership, and one
of them covenant with the other that he will pay all the debts, a
creditor may  nevertheless sue both. Upon a covenant running with
land, which must concern real property, or the estate therein;  3
Wils. 29;   2  H. Bl. 133;  10 East, R. 130;  the assignee of the
lessee is liable to an' action for a breach of the covenant after
the assignment  of the estate to him, and while the estate remaim
in him,  although  he  have  -  not  take  possession.  Bac.  Ab.
Covenant, E  34;  3 Is. 25;  2 Saund. 304, n. 12;  Woodf. L. & T.
113;   7 T.  R. 312;   Bull.  N. P.  159;  3 Salk. 4;  1 Dall. R.
210,;  1 Fonbl. Eq. 359, note y;  Hamm. N. P. 136.

   23. -  §4. When one of several obligers, &c. is dead. When the
parties were bound by a joint contract, and one of them dies, his
executor or  administrator is  at law  discharged from liability,
and the  survivor alone  can be  sued. Bac.  Ab. Obligation, D 4;
Vin. Ab.  Obligation, P  20;  Carth. 105;  2 Burr. 1196. And when
the deceased was a mere surety, his executors are not liable even
in equity. Vide 1 Binn. R. 123.

   24. - §5. In the case of executors an administrators. When the
contracting  party is dead, his executor or administrator, or, in
case of  a joint  contract, the  executor or administrator of the
survivor, is  the party to be made defen-dant. Ham. on Part. 156.
On a  joint contract,  the executors  of the deceased contractor,
the other  surviving, are discharged at law, and no action can be
supported against  them;   6 Serg. & R. 262;  2 Whart. R. 344;  2
Browne, Rep.  31;   and, if  the deceased  joint contractor was a
mere surety, his representatives are not liable either at, law or
in equity.  2 Serg.  & R.  262;  2 Whart. 344;  P. A. Browne's R.
31. All  the executors must be sued jointly;  when administration
is taken  on the  debtor's estate, all his administrators must be
joined, and if one be a married woman, her hushand must also be a
party. Cro. Jac. 519.

  25. - §6. In the case of bankruptcy or insolvency. A discharged
bankrupt cannot  be sued.  A discharge  under the  insolvent laws
does not  protect the  property of  the insolvent,  and he may in
general be  sued on  his contracts, though he is not liable to be
arrested for a debt which was due and not contingent at the date.
of his  discharge. Dougl.  93;  8 East, R. 311;  1 Saund. 241, n.
5;  Ingrah. on Insol. 377.

   26. -  §7. In  case of  marriage. This head will be divided by
considering, 1. When the bushand and wife must be joined. 2. When
the hushand  must be  sued, alone.  3. When the wife must be sued
alone. 4.  When the  hushand and wife may be joined or not at the
election of  the plaintiff.  5. Who  is to be sued in case of the
death of the hushand or wife. 6. Of actions commenced against the
wife dum sola, which are pending at her marriage.

         Bouvier's Law Dictionary : P1 : Page 15 of 100

   27. -  1. When  a feme  sole who  has entered  into a contract
marries, the  hushand and wife must in general be jointly sued. 7
T. R.  348;   All. 72;  1 Keb. 281;  2 T. R. 480;  3 Mod. 186;  1
Taunt. 217;   7  Taunt. 432;  1 Moore, 126;  aid, s6e 8 Johns. R.
2d ed.  115.;   15 Johns.  R. 403,  483;  17 Johns. Rep, 16't;- 7
Mass. R. 291 - Com. Dig. Pleader, 2 A 2-;  1 Bingh. R. 60. But if
the hushand  be away, or live separate from his wife, she may, on
a contract of which she is the meritorious cause, bring an action
in the  Paine of  her hushand,  on indemnitying  the  latter  for
costs. 4  B. &  A. 419;  2 C. & M. 388 Addis. on Contr. 342. And,
on such  contract, she may sue as a feme sole when her hushand is
civiliter inortu'us.  Addis. on  Contr. 342  1 Salk. 116;  1 Lord
Raym. 147;  2 M. & W. 65;  Moore, 851.

   28. -  2. When the wife cannot be considered either in person,
or property  as creating the cause of action, as in the case of a
mere personal  contract made  during the  coverture, the  hushand
must be sued alone. Com. Dig. Pleader, 2 A 2;  8 T. R. 545;  2 B.
& P.  105;  Palm. 312;  1 Taunt. 217;  4 Price, 48;  16 Johns. R.

   29. -  3. The  wife can  in general be sued alone, in the same
cases where she can sue alone, the cases being reversed.

   30. -  4.  When  the  hushand,  in  consequence  of  some  new
consideration, undertakes  to pay a debt of the wife dum sola, he
may be  sued alone,  or the  hushand and  wife. may be made joint
defendants. All. 73;  7 T. R. 349;  vide other cases in Com. Dig.
Baron &  Feme, Y;  1 Rolle's Ab. 348, pl. 45, 50;  Bac. Ab. Baron
& Feme, L.

  31. - 5. Upon the death of the wife, her executor, when she has
appointed one  under a  power, or  her  administrator,  is  alone
responsible for  a debt  or duty  she contracted  dum  sola.  The
hushand, as  such, is not liable. Com. Dig. Baron & Feme, 2 C;  3
Mod. 186;   Rep.  Temp. Talb.  173;  3 P. Wms. 410. When the wife
survives,  she   may  be  sued  for  her  contracts  made  before
coverture. 7 T. R. 350;  1 Camp. R. 189.

   32. - 6. When a single woman, being sued, marries Iis pendens,
the plaintiff  may proceed  to judgment,  as if  she were  a feme
sole. 2 Rolle's R. 53;  2 Str, 811.

  33. Part 2. Of parties to actions in form ex delicto. These are
plaintiffs and defendants.

   34. -  Sect. 1.  Of  plaintiffs.  These  will  be  separately,
considered as follows:

  35. - §1. With reference to the interest. Of the plaintiff. The
action for a tort must, in general, be brought in the name of the
party whose  legal right  has been affected, 8 T. R. 330;  vide 7
T. R. 47;  1 East, R. 244;  2 Saund. 47 d;  Hamm. on Part. 35, 6;
6 Johns. R. 195;.10 Mass. R. 125 10 Serg. & Rawle, 357.

 36.  - §2.  With reference  to the number of plaintiffs. It is a
general rule  that when  an injury is done to the property of two

         Bouvier's Law Dictionary : P1 : Page 16 of 100

or more  joint owners,  they must  join in  the action;  and even
when the  property is  several, yet  when the  wrong has caused a
joint damage,  the parties must join in the action. 1 Saund. 291,
g. When suits are brought by tenants in common, against strangers
for the  recovery of  the land,  inasmuch as  they  have  several
titles, they  cannot agreeably  to the  rules of  the common law,
join, but  must bring separate actions;  and this seems to be the
rule in  Missouri. 1 Misso. R. 746. This rule has been changed in
some of  the states. In Connecticut, when the plaintiff claims on
the title  of all the tenants, he recovers for their benefit, and
his  possession   will  be   theirs.  1   Swift's  Dig.  103.  In
Massachusetts, Mass.  Rev. St. 611, and Rhode Island, R. I. Laws,
208, all  the tenants  or any  two may  join or  any one  may sue
alone. In Tennessee they usually join. 2 Yerg. R. 228.

   37. When  personal reputation  is the  object affected, two or
more cannot  join as  plaintiffs in the action, although the mode
of expression  in which the slander was couched comprehended them
all;   as when  a man addressing himself to three, said, you have
murdered Peter.  Dyer, 191, pl. 112;  Cro. Car. 510;  Goulds. pl.
6, p.  78. The reason of this is obvious, no one has any interest
in the  character of  the others,  the  damages  are,  therefore,
several to each.

   38. -  §3. In  general, rights  or causes of action arising ex
delicto are not assignable.

   39. -  §4. When  one of several parties who had an interest is
dead. In such case the action must be instituted by the survivor.
1 Show. 188;  S. C. Carth. 170.

   40. -  §5. When  the party  injured is  dead. The executors or
administrators cannot in general recover damages for a tort, when
the, action must be ex delicto, and the plea to it is not guilty.
Vide the  article Actio personalis moritur cum persona, where the
subject is more fully examined.

   41. -  §6. In  case  of  insolvency.  The  statutes  generally
authorize the  trustee or assignee of an insolvent to institute a
suit in  his own name for the recovery of the rights and property
of the  insolvent. 6  Binn. 189;   8  Serg. & Rawle, 124. But for
torts to the person of the insolvent, as for slander, the trustee
or assignee cannot sue. W. Jones' Rep. 215.

   42.- §7. When the tort has been committed, against a woman dum
sola who  afterwards married. A distinction is made between those
injuries committed  before and  those  which  take  place  during
coverture. For  injuries to the person, personal or real property
of the wife, committed before coverture, when the cause of action
would survive  to the  wife, she must join in the action. 3 T. R.
627;   Rolle's Ab. 347;  Com. Dig. Baron & Feme, V. For an injury
to the person of the wife during coverture, by battery, or to her
character, by  slander, or  for any  other such  injury, the wife
must be  joined with her hushand in the suit;  when the injury is
such that  the hushand  receives a separate damage or loss, as if
in consequence  of the  battery, he  has  been  deprived  of  her
society or  been put  to expense, he may bring a separate action,

         Bouvier's Law Dictionary : P1 : Page 17 of 100

in his own name;  and for slander of the wife, when words are not
actionable of  themselves, and  the  hushand  has  received  some
special damages, the hushand must sue alone. 1 Lev. 140;  1 Salk.
119;  3 Mod. 120.

   43. -  Sect. 2.  Of the  defendants. §1.  Between the  orginal
parties. All  natural persons  are liable  to be  sued for  their
tortious  acts,   unconnected  with  or  in  disaffirmance  of  a
contract;   an infant is, therefore, equally liable with an adult
for slander,  assaults aud  batteries, and  the like;    but  the
plaintiff cannot  bring an action ex delicto which arose out of a
contract, and  by that  means charge  an infant for a breach of a
contract. The  form is  of no  consequence;  the only question is
whether  the  action  arose  out  of  contract  or  otherwise.  A
plaintiff who hired a horse to an infant, and the infant by hard,
improper and  injudicious  driving,  killed  the  horse,,  cannot
maintain an  action ex delicto to recover damages for a breach of
this contract.  8 Rawle's  R. 351;   6 Watts' R. 9;  8 T. R. 385;
Hamm. N.  P. 267. But see contra, 6 Cranch,226;  15 Mass. 359;  4
McCord, 387. Vide Infant.

   44. -  §2. As  to the  number of  defendants. There  are torts
which, when  committed by  several, may  authorize a joint action
against all the parties;  but when in legal contemplation several
cannot concur  in the act complained of, separate actions must be
brought against  each;   the cases  of several persons joining in
the publication  of a  libel,  a  malicious  prosecution,  or  an
assault and  battery, are  cases of the first kind verbal slander
is of  the second.  6 John.  R:  32. In general, When the parties
have committed  a tort  which might be committed by several, they
may be jointly sued, or the plaintiff may sue one or more of them
and not  sue the others, at his election. Bac Ab. Action Qui Tam,
D;  Roll. Ab. 707;  3 East, R. 62.

   45. - §3. When the interest has been assigned. A liability for
a tort cannot well be assignee;  but an estate may be assigned on
which was erected a nuisance, and the assignee will be liable for
continuing it,  after having  possession of the estate. Com. Dig.
Case, Nuisauce, B;  Bac. Ab. Actions, B;  2 Salk. 460;  1 B. & P.

  46.- 4. When the wrongdoer is dead. In this case the remedy for
wrongs ex  delicto, and  unconnected  with  contract,  cannot  in
general be maintained. Vide Actio personalis moritur cum persona.

   47. - §5. In case of insolvency. Insolvency does not discharge
the right  of action  of the  plaintiff in  any case;   it merely
liberates the  defendant from  arrest when  he has  received  the
benefit of,  and been  discharged under,  the insolvent laws;  an
insolvent may  therefore be  sued for  his torts committed before
his discharge.

   48. -  §6. In  case of  marriage. Marriage  does not affect or
change the  liabilities of the hushand and he is alone to be sued
for his  torts committed  either before  or during the coverture.
But it is otherwise with the wife;  after her marriage she has no
personal property  to pay the damages which may be recovered, and

         Bouvier's Law Dictionary : P1 : Page 18 of 100

she cannot  even appoint an attorney to defend her. For her torts
committed by  her before the marriage, the action must be against
the hushand  and wife  jointly. Bac.  Ab. Baron  and Feme,  L;  5
Binn. 43.  They must  also be  sued jointly  for the torts of the
wife during  the coverture,  as for slander, assault and battery,
&c. Bac. Ab. Baron and Feme, L. See, generally, as, to parties to
actions,, 3  United States Dig. Pleading, I, and Promissory Note,
XVI.;  Bouv. Inst. Index, h. t.

   PARTIES TO  A SUIT IN EQUITY. The person who seeks a remedy in
chancery by  suit, commonly  called a  plaintiff, and  the person
against whom  the  remedy  is  sought,  usually  denominated  the
defendant, are the parties to a suit in equity.

   2. It is of the utmost importance, that there should be proper
parties;   and therefore  no rules  connected with the science of
equity pleading,  are so  necessary to  be attentively considered
and observed,  as those which relate to the persons who are to be
made parties.  to a  suit, for  when a mistake in this respect is
discovered at  the hearing  of the  cause, it  may  sometimes  be
attended with  defeat, and  will, at  least, be followed by delay
and expense.  3 John. Ch. R. 555;  1 Hopk. Ch. R. 566;  10 Wheat.
R. 152.

  3. A brief sketch will be here given by considering, 1. Who may
be plain-tiffs.  2. who  may be made defendants. 3. The number of
the parties.

   4. -  §1. Of the plaintiff. Under this head will be considered
who may sue in equity:  and,

   5. -  1. The  government, or  as the  style is in England, the
crown) may  sue in  a court of equity, not only in suits strictly
on behalf  of the  government, for  its own  peculiar rights  and
interest, but also on behalf of the rights and interest of those,
who  partake   of  its   prerogatives,  or   claim  its  peculiar
protection. Mitf.  Eq. Plead. by Jeremy, 4, 21-24;  Coop. Eq. 21,
101. Such suits  are usually brought by the attorney general.

   6.- 2.  As a  general rule  all persons,  whether  natural  or
artificial, as  corporations, may  sue in equity;  the exceptions
are persons who are not sui juris, as a person not of full age, a
feme covert, an idiot, or lunatic.

  7. The incapacities to sue are either absolute, or partial.

   8. The  absolute,  disable  the  party  to  sue  during  their
continuance;   the partial,  disable the  party to sue by himself
alone, without  the aid  of another.  In the  United States,  the
principal ab  solute incapacity,  is alienage.  The alien,  to be
disabled to  sue in  equity, must be an alien enemy, for an alien
friend may  sue in chancery. Mitf. Equity, PI, 129;  Coop. Equity
Pl. 27.  But still the subject matter of the suit may. disable an
alien to  sue. Coop.  Eq. Pl.  25;   Co. Lit.  129  b.  An  alien
sovereign or  an alien  corporation may maintain a suit in equity
in this  country. 2  Bligh's Rep. 1, N. S.;  1 Dow. Rep.. 179, N.
S.;   1 Sim. R. 94;  2 Gall. R. 105;  8 Wheat. Rep. 464;  4 John.

         Bouvier's Law Dictionary : P1 : Page 19 of 100

Ch. Rep.  370. In  case if a foreign sovereign, he must have been
recognized by  the government  of this country before he can sue.
Story's Eq. pl. §55;  3 Wheat. Rep. 324;  Cop. Eq. Pl. 119

   9. Partial incapacity to sue exists in the case of infants, of
married women,  of idiots  and lunatics, or other persons who are
incapable, or  are by  law specially disabled to sue in their own
names;   as for  example, in Pennsylvania, and some other states,
habitual drunkards,  who are under guardianship. 10.-1. An infant
cannot, by  himself, exhibit  a bill,  not only on account of his
want of  discretion, but because of his inability to bind himself
for costs. Mitf. Eq. Pl. 25. And when an infant sues, he must sue
by his next friend. Coop, Eq. 27;  1 Sm. Chan. Pl. 54. But as the
next friend  may sometimes  bring a  bill. from improper motives,
the court  will, upon  a proper application, direct the master to
make inquiry  on this  subject, and if there be reason to believe
it be  not brought for the benefit of the infant, the proceedings
will be  stayed. 3 P. Wms. 140;  Mitf. Eq. Pl. 27;  Coop. Eq. Pl.

   11. - 2. A feme covert must, generally, join with her hushand;
but when  he has  abjured the realm, been transported for felony,
or when  he is civilly dead, she may sue as a feme sole. And when
she has  a separate claim, she may even sue her hushand, with the
assistance of a next friend of her own selection. Story's Eq. Pl.
§61;  Story's Eq. Jur. §1368;  Fonbl. Eq. b. 1, c. 2, §6, note p.
And the hushand may himself sue the wife.

    12.  -  3.  Idiots  and  lunatics  are  generally  under  the
guardianship of persons who are authorized to bring a suit in the
idiot's name, by their guardian or committee.

   13. -  §2. Of  the defendant. 1. In general, those persons who
may sue  in equity,  may be  sued. Persons  sui juris  may defend
themselves, but those under an absolute or partial inability, can
make defence only in a particular manner. A bill may be exhibited
against all  bodies politic or corporate, against all persons not
laboring under  any diability,  and all  persons subject  to such
incapacity, as  infants, married women, and lunatics, or habitual

  14. - 2. The government or the state, like the king in England,
cannot be sued. Story, Eq. Pl. §69.

   15. -  3. Bodies politic or corporate, like persons sui juris,
defend a suit by themselves.

   16. -  4. Infants  institute a suit, as has been seen, by next
friend, but  they must defend a suit by guardian appointed by the
court, who  is usually  the nearest  relation, not  concerned  in
interest, in  the matter  in  question. Mitf. Eq. Pl. 103;  Coop.
Eq. Pl.  20, 109;   9  Ves. 357;   10  Ves. 159;  11 Ves. 563;  1
Madd. R. 290;  Vide Guardian, n. 6.

   17. -  5. Idiots and lunatics defend by their committees, who,
in ordinary  circumstances, are appointed guardians ad litem, for
that purpose,  as a  matter of  course. Mitf. Eq. Pl. 103;  Coop.

         Bouvier's Law Dictionary : P1 : Page 20 of 100

Eq. Pl.  30, 32;  Story's Eq. Pl. SS70;  Shelf on Lun. 425.;  and
vide 2  John. Ch.  R. 242,  where, Chancellor Kent held, that the
idiot need  not be  made a  party as  defendant to a bill for the
payment of  his debts,  but his committee only. When the idiot or
lunatic has  no committee,  or the latter has an interest adverse
to that  of the  lunatic or  idiot, a  guardian ad  litem will be
appointed Mitf. Eq. Pl. 103;;  Story's Eq. Pl. §70.

  18. - 6. In general, a married woman, when she is sued, must be
joined with her hushand, and their answer must also be joint. But
there axe exceptions to this rule in both its requirements.

  19. - 1. A married woman may be made a defendant, and answer as
a feme  sole, in some instances, as when her hushand is plaintiff
in the  suit, and  sues her  as  defendant,  and  from  the  like
necessity, when the hushand is an exile or has abjured the realm,
or has been transported under a criminal sentence, or is an alien
enemy. She  may be  sued and answer as a feme sole. Mitf. Eq. Pl.
104, 105;  Coop. Eq. Pl. 30.

  20. - 2. When her hushand is joined, or ought to be joined, she
cannot make a separate defence, without a special order of court.
The following  are instances  where such orders will made. When a
married woman  claims as  defendant in opposition to her hushand,
or lives  separate from  him, or  disapproves of  the defence  he
wishes her  to make, she may obtain an order of court for liberty
to answer,  and defend  the suit separately. And when the hushand
is abroad,  the plaintiff  may obtain,  an order  that she  shall
answer separately;  and, if a woman obstinately refuses to join a
defence with  her hushand,  the latter  may obtain  an  order  to
compel her  to make  a separate  answer. Mitf.  Eq:   Pl.:   104;
Coop. Eq. Pl. 30;  Story's Eq 71.

  21. - 3. As to the number of parties. It is a general rule that
every person  who is  at all  interested in the subject-matter of
the suit,  must be  made a  party. It  is, the  constant aim of a
court of  equity, to  do complete  justice by  deciding upon  and
settling the  rights of  all persons interested in the subject of
the suit,  to make  the performance  of the  order of  the  court
perfectly safe  to those  who are  compelled to  obey it, and, to
prevent  future   litigation.  For   this  purpose,  all  persons
materially interested  in the  subject ought to be parties to the
suit, plaintiffs  or defendants, however numerous they may be, so
that a  complete decree  may be  made binding  on those  parties.
Mitford's Eq.  Pl. 144;   1 John. Ch. R. 349;  9 John. R. 442;  2
Paige's C. R. 278;  2 Bibb, 184;  3 Cowen's R. 637;  4 Cowen's R.
682 9 Cowen's R. 321;  2 Eq. Cas. Ab. 179;  3 Swans. R. 139. When
a great  number of  individuals are interested as in the instance
of creditors  seeking an  account of the estate of their deceased
debtor for payment of their demands, a few suing on behalf of the
rest may  substantiate the suit, and the other creditors may come
in under  the decree.  2 Ves.  312, 313.  In such  case the  bill
should expressly  show that  it is fifed as well on the behalf of
other members as those who are really made the complainants;  and
the parties must not assume a corporate, name, for if they assume
the style  of a corporation, the bill cannot be sustained. 6 Ves.
jr. 773;  Coop. Eq. Pl. 40;  1 John. Ch. R. 349;  13 Ves. jr. 397

         Bouvier's Law Dictionary : P1 : Page 21 of 100

16 Ves.  jr. 321;   2 Ves. sen. 312 S. & S. 18;  Id. 184. In some
cases, however,  when all  the persons  interested are,  not made
parties, yet, if there be such privily between the plaintiffs and
defendants, that  a complete  decree may  be made,  the  want  of
parties is  not a  cause of  demurrer. Mitf.  El q. Pl. 145. Vide
Calvert on  Parties to  Suits in  Equity;   Edwards on Parties to
Bills in Chancery;  Bouv Inst. Index, h. t.

   PARTITION, conveyancing.  A deed of partition is, one by which
lands held  in joint  tenancy, coparcenary,  or  in  common,  are
divided into  distinct portions,  and  allotted  to  the  several
parties, who take them in severalty.

  2. In the old deeds of partition, it was merely agreed that one
should enjoy  a particular  part, and the other, another part, in
severalty;   but it  is now the practice for the parties mutually
to convey  and assure  to each  other the different estates which
they are  to take  in severalty, under the partition. Cruise Dig.
t. 32, c. 6, s. 15.

   PARTITION, ?states. The division which is made between several
persons, of  lands, tenements,  or hereditaments, or of goods and
chattels which  belong to them as co-heirs or co-proprietors. The
term is  more technically  applied to the division of real estate
made between coparceners, tenants in common or joint tenants.

   2. The  act of partition ascertanas and fixes what each of the
co-proprietors is entitled to have in severalty

     3.  Partition   is  either  voluntary,  or  involuntary,  by
compulsion. Voluntary  partition is  made by  the owners  of  the
estate, and by a conveyance or release of that part to each other
which is to be held by him in severalty.

   4. Compulsory  partition is  made by  virtue of  special  laws
providing that  remedy. "It is presumed," says Chancellor Kent, 4
Com. 360,  "that the  English statutes  of 31  and 32 Henry VIII.
have been  generally reenacted  and adopted  in this country, and
probably, with  increased  facilities  for  partition."  In  some
states the courts of law have jurisdiction;  the courts of equity
have  for   a  long   time  exercised  jurisdiction  in  awarding
partition. 1  Johns. Ch.  R. 113;   1  Johns.  Ch.  R.  302;    4
Randolph's R.  493;   State Eq. Rep. S. C. 106. In Massachusetts,
the statute  authorizes a  partition to  be effected  by petition
without  writ.   15  Mass.   R.  155;    2  Mass.  Rep.  462.  In
Pennsylvania, intestates'  estates, may  be divided upon petition
to the orphans' court. By the civil code of Louisiana, art. 1214,
et seq.,  partition of a succession may be made. Vide, generally,
Cruise's Dig.  tit. 32,  ch. 6,  s. 1 5;  Com. Dig. Pleader, 3 F;
Id. Parcener,  C;   Id. vol. viii. Append. h. t. 16 Vin. Ab. 217;
1 Supp. to Yes. jr. 168, 171;  Civ. Code of Louis. B. 3, t. 1, c.

  5. Courts of equity exercise jurisdiction in cases of partition
on various grounds, in cases of such complication of titles, when
no adequate remedy can be had at law;  17 Ves. 551;  2 Freem. 26;
but even in such cases the remedy in equity is more complete, for

         Bouvier's Law Dictionary : P1 : Page 22 of 100

equity directs conveyances to be made, by which the title is more
secure. "Partition  at law,  and in equity," says Lord Redesdale,
"are very different things. The first operates by the judgment of
a court  of law, and delivering up possession in pursuance of it,
which concludes  all the  parties  to  it.  Partition  in  equity
proceeds upon  conveyances to be executed by the parties;  and if
the parties  be not  competent to  execute  the  conveyance,  the
partition cannot  be effectually  had." 2  Sch. & Lef. 371. See 1
Hill. Ab.  c. 55,  where may  be found an abstract of the laws of
the several states on this subject.

   PARTNERS, contracts.  Persons who  have  united  together  and
formed a  partnership. 2.  Every person sui juris is competent to
contract the  relation of  a partner.  An infant  may by law be a
partner. 5  B &  A. 159;  but a feme covert, not being capable of
contracting, cannot enter into partnership;  and altbough married
women are  not unfrequently entitled to shares in banking houses,
and other mercantile concerns, under positive covenants, yet when
this happens,  their hushands  are entitled  to such  shares, and
become partners  in their  steads. Whether  a feme sole trader in
Pennsylvania could  enter into  such contract, seems not settled.
See 2  Serg. &  Rawle, 189;   see  also, 2 Nott & McC. R. 242;  2
Bay, 162, 333;  Code Civ. par Sirey, art. 220.

   3. Partners  are considered as ostensible, dormant, or nominal
partners. 1. An actual ostensible partner is a party who not only
participates, in  the profits  and  contributes  to  the  losses,
but.who appears  and exhibits  himself to  the world  as a person
connected with the partnership, and as forming a component member
of a firm. He is clearly answerable for the debts and engagements
of, the  partnership;   his right  to a share of the, profits, or
the permitted  exhibition  of  his  name  as  partner,  would  be
sufficient to  render him responsible. 6 Serg. & Rawle, 259, 337;
Barnard. 343;   2 Blackst. R. 998;  17 Ves. 404;. 18 Ves. 301;  1
Rose, 297;  16 Johns. R. 40;  3 Hayw. R. 78.

   4. -  2. A  dormant partner is one who is a participant in the
profile of the trade, but his name being suppressed and concealed
from the  firm, his  interest is consequently not apparent. He is
liable as  a partner,  because he  receives and  takes  from  the
creditors a  part of  that fund  which is  the proper security to
them for  the satisfaction of debts, and upon which they rely for
payment. 16  Johns. R. 40. Another reason assigned for subjecting
a dormant  partner to responsibility is, that if he were exempted
he would  receive usurious  interest for his capital, without its
being attended  with any risk. 1 Dougl. 371;  4 East, R. 143;  10
Johns. R. 226;  4 B. & A. 663;  8 Man. Gr. & Scott, 641, 650. But
in order  to render  one liable as a partner, he must receive the
profits as such, and not merely his wages;  to be paid out of the
profits. Vide Profits.

   5. -  3. A,  nominal partner  is one  who has  not any  actual
interest in  the trade  or its profits, but, by allowing his name
to be  used, he  holds himself  out to  the world  as  having  an
apparent interest.  He is  liable as  a partner, because of these
false appearance  he holds  forth to  the world  in  representing
himself to  be jointly concerned in interest with those with whom

         Bouvier's Law Dictionary : P1 : Page 23 of 100

he is  apparently associated.  2 H. Bl. 235;  1 Esp. N. P. O. 29;
6 Serg. & R. 338;  Watts. Partn. 26.

   6. A  partner  in  a  private  commercial  partnership  cannot
introduce a  stranger into  the firm  as a  partner  without  the
consent of  all the  copartners. If  he should  attempt to do so,
this may  make such  stranger a  partner with the partner who has
associated with  such third  person;  this will be a partnership,
distinct from the first, and limited to the share of that partner
who has so joined himself with another. 2 Rose 255;  Domat, de la
Societe, tit. 8, s. 2, n. 5.

   7. As  between the  members of  a firm  and the persons having
claims upon  it, each  individual member  is answerable in solido
for the  amount of  the whole  of the  debts  contracted  by  the
partnership, without  reference either  to the  extent of his own
separate beneficial  interest in  the concern, or. to any private
arrangement or  agreement that  may exist between himself and his
copartners, stipulating for a restricted responsibility. 1 Ves. &
Bea. 157;  9 East, 527;  5 Burr. 2611;  2 Bl. R. 947;  1 East, R.
20;   1 Ves.  sen. 497;  2 Desaus. R. 148;  4 Serg. & Rawle, 356;
6 Serg. & Rawle, 333;  Kirby, 53, 77, 147. In Louisiana, ordinary
partners are  not bound  in solido  for the debts of the partner-
ship;  Civ. Code of Lo. art. 2843;  each partner is bound for his
share  of  the  partnership  debts,  calculating  such  share  in
proportion to  the number  of the partners, without any attention
to the proportion of the stock or profits each is entitled to id.
art. 2844.

   8. Partners  are bound by what is done by one in the course of
the business  of the partnership. Their liability under contracts
is commensurate  and coextensive  with their rights. Although the
general rule  of law  is, that no one is liable upon any contract
except such  as are  privy to it;  yet this is not contravened by
the liability of partners, as they are imagined virtually present
at and sanctioning the proceedings they singly enter. into in the
course of  trade;  or as each is vested with a power enabling him
to act,  at once  as principal and as the authorized agent of his
copartners. Wats.  Partn. 167;   Gow.  Partn. 53. It is doubtful,
however,  whether  one  can  close  the  business  by  a  general
assignment  of  the  partnership  property  for  the  benefit  of
creditors. Pierpont  and Lord  v. Graham. Cir. Court, April 1820,
MS. Whart.  Dig. 453,  1st ed.;   4  Wash. C.  C. R.  232;  see 1
Brock. R. 456;  3 Paige's R. 517;  5 Paige's R. 30;  1 Desaus. R.
537;   4 Day's.  R. 425;   5  Cranch, 300;   1 Hoffm. R. 08, 511;
Stor. Partn. §101;  2 Washb. R. 390.

  9. One partner can, in simple contracts, bind his copartners in
transactions relative  to the  partnership. 7 T. R. 207;  4 Dall.
286;   1 Dall.  269. But a security given by, one partner, in the
partnership name,  known to  be for his individual debt, does not
bind the  firm. 2  Caines' R. 246;  4 Johns. R. 251;  4 Johns. R.
262, in  note;   2 Johns.  R. 300;   16  Johns. R. 34;  4 Serg. &
Rawle, 397. Nor can one partner bind his copartners by deed;  and
this both for technical reason and the general policy of the law.
Wats. Partn.  218;   Gow on  Partn. 83;   3  Murph. 321;  4 Sm. &
Marsh. 261;   7 N. H. Rep. 549;  1 Pike, 206;  2 Harr. 147;  2 B.

         Bouvier's Law Dictionary : P1 : Page 24 of 100

Monr. 267;   5  B. Monr.  47;   4 Miss. 417;  1 McMullen, 311;  3
Johns. Cas.  180;  Taylor's R. 113;  2 Caines' R. 254;  2 Caines'
Err. 1;.  2 Johns.  R. 213;  19 Johns. R. 513;  1 Dall. 11,9. But
see 6  Watts &  Serg. 165,  where it  is said this rule admits of
sorae qualifications.  The rule  does not  however apply to cases
where the object is to discharge a debt as due to it;  as to give
a general  release by  deed. 3  John. 68;   7  N. H. Rep. 550;  1
Wend. 326;   20  Wend. 251;   22  Wend. 324.  It seems  to be  an
admitted principle,  that one  partner has  no power to submit to
arbitration any  matters whatsoever, concerning or arising out of
the  partnership   business.  Story,  Partn.  §114;    Com.  Dig.
Arbitrament, D  2;  3 Bing. R. 101;  1 C. M. & R. 681;  1 Pet. R.
222;   19 John.  R. 137;   3  Kent,  Com.  49,  4th  ed.  But  in
Pennsylvania, 12  S. & R. 243, and Kentucky, 3 Mont. R. 433, one,
partner may  by an  unsealed, instrument  refer  any  partnership
matter to  arbitration, though  he has  no implied  authority  to
consent to  an order  for a judgment in an action against himself
and his  copartner. 3  Mann. G. & Scott, 742. Nor has one partner
the power to confess a judgment, or authorize the confession of a
judgment against  the firm,  when no writ has been issued against
both. 1  Wend. 311;   9 Wend. 437;  1 Blackf. 252;  1 Scamm. 428,
442. Such a judgment, however is binding on the one who confessed
it. 2  Bl. R. 1133;  1 Dall. 119;  1 W. & S. 340, 519;  7 W. & S.
142;   2 Caines, 254;  20 Wend. 609;  and see 7 Watts, 331;  1 W.
& S. 519, 525;  2 Miles, 436;  1 Hoff. Ch. R. 525.

   10. With regard to the tight of the majority of, the partners,
when there  is a dissent among them, it may be laid down, 1. That
when there  are stipulations  on this  subject, they must govern.
Tum. &  Russ. 496, 517. 2. In the absence of all agreement on the
subject, each  partner has an equal voice, though their interests
be different,  and  a  majority  have  a  right  to  conduct  the
business. 3  John. Ch.  R .  400;  3 Chit. Com. Law, 236;  Colly.
Partn. B.  2, c. 2, s. 1;  Id. B. 3, c. 1, s. 262 - Story, Partn.
123. 3.  When there  are only  two partners,  and  they  dissent,
neither can  bind the partnership, when the person with whom they
deal has  notice of  such disagreement.  1 Stark.  R. 164.  See 1
Camp. R.  403;  10 East, R. 264;  7 Price, Rep. 193;  6 Ves. 777;
16 Vin.  Ab. 244.  But this  right of the majority is confined to
transactions in  the usual  scope of  the business,  and not to a
change of  the articles  of the partnership, for in such case all
the partners must consent, 4 John. Ch. R. 573.

  11. The stock used in a joint undertaking by way of partnership
in trade,  is always  considered  in  common  and  not  as  joint
property, and consequently there is no survivorship therein;  jus
accrescendi inter  mercatores, pro beneficio commercii, locum non
habet.  On   the   death   of   one   partner,   therefore,   his
representatives become  tenants in  common with  the survivor, of
all the  partnership effects  in possession.  But with respect to
choses in  action, survivorship so far exists at law, as that the
remedy or  right to reduce them into possession vests exclusively
in  the   survivor;    although  when  they  are  recovered,  the
representatives of the deceased partner have, in equity, the same
right of  sharing and  participating in them which their testator
or intestate would have possessed had he been living. 1 Ld. Raym.
340. See  2 Dall. 65, 66, in note;  1 Dall. 248;  4 Dall. 354;  2
Serg. & Rawle, 494.

         Bouvier's Law Dictionary : P1 : Page 25 of 100

   12. When  real estate is owned by a partnership, it is held by
the partners  subject in  all respects to the ordinary incident's
of land held in common. 1 Sumn. R. 174;  7 Conn. 11;  5 Hill, (N.
Y.) Rep.  118;   4 Mete.  537. But  in equity the partners may by
agreement, express  or implied,  affect real  estate with a trust
as, a  partnership property,  and, by  that means,  render it in,
equity subject to the rules applicable to partnership property as
between the  partners themselves  and all  claiming under them. 2
Edw. R.  28;  2 Rand. R. 183;  7, S. & R. 438, 441;  Conn. 11;  5
Metc. 582;  6 Yerg. 20.

   See, generally, as to partners, 5 Com. Dig. Merchant, D;  Bac.
Abr. Merchant, C;  Wats. on Partn. passim;  Gow on Partn. passim;
Supp. to  Ves. jr.  vol. 1,  p. 36,  279 281, 312, 389, 449, 503;
Id. vol.  2, p.  40, 314,  315, 317,  362, 364, 377, 384, 456;  1
Salk. 291,  392;   1 Swanst.  R. 506, 9;  10 East R. 265;  4 Ves.
396;   1 Hare & Wall. Sel. Dec. 292, 304;  Civ. Code of Lo. B. 3,
t. 11;   Code  Civ. L.  3, t.  9;  Code de Proc. Civ. L. 1, t. 3;
Chit. Contr.  66 to  82;   Poth. Contrat de Soeiete;  Bouv. Inst.
Index, h.  t. Vide Articles of Partnership;  Death of. a partner;
Dissolution;  Firm;  Partnership.

   PARTNERSHIP, contracts.  An  agreement  between  two  or  more
persons, for  joining together  their  money,  goods,  labor  and
skill, or  either or  all of  them, for  the purpose of advancing
fair trade,  and of  dividing the profits and losses arising from
it, proportionably  or otherwise,  between them. 2 Bouv. Inst. n.
1435;   Watson on  Partn. 1;   Gow on Partn. 2;  see Civ. Code of
Lo. art.  2772;   Code Civ.  art. 1832;   Forbes. Inst. of Scotch
Law, part  2, B.  3, s.  3, p.  184;   edit. Edin.  1722,  12mo.;
Dolmat, Civ.  Law, vol.  1, p. 85;  9. John. R. 488;  Puffend. B.
5, c.  8;   2 H.  Bl. 246;  1 H. Bl. 37;  Ersk. Inst. B. 3, t. 3,
§18;   Tapia, Elemontos  de Jurisp. Mercantil, p. 86;  5 Duv. Dr.
Civ. Fr. tit. 9, c. 1, n, 17;  4 Pard. Dr. Com. n. 966;  2 Bell's
Com. 611, 5th ed.;  Aso & Mann. Inst. B. 2, tit.

   15. Sometimes  partnership signifies a moral being composed of
the reunion of all the partners. 4 Pard. n. 966. As a partnership
has a separate existence as a person, it becomes liable to fulfil
all its  engagements, and the partners are individually bound and
responsible only  on its  default, as sureties. 2 Bell's Comm. B.
6, c. 1, n. 4, p. 619, 5th ed.

   2. Partnerships  will be  considered, 1st. In respect to their
character and  extent, as they regard property. 2d. With relation
to the  number and  character of parties. 3d. As they are divided
by the  French code.  4th. As to their creation. 5th. As to their
object. 6th.  As to their duration. 7th. As to their dissolution.
8th. As to partnerships in Louisiana.

   3. -  §1. In  respect to  their character  and extent, as they
regard property,  partnerships maybe  divided into three classes,
namely:   universal partnerships;   general  partnerships;    and
limited or  special partnerships.  1. A  universal partnership is
one where  the parties  agree to  bring into  the firm  all their

         Bouvier's Law Dictionary : P1 : Page 26 of 100

property, real,  personal and  mixed, and  to  employ  all  their
skill, labor,  and services, in the trade, or business, for their
common benefit.  This, kind  of partnership is perhaps unknown in
the United States. 5 Mason, R. 176.

   4. -  2. General  partnerships are  properly such,  where  the
parties carry  on all  their trade  and business  for their joint
benefit and  profit;   and it is not material whether the capital
stock be  limited or not, or the contributions of the partners be
equal or  unequal. Cowp.  814. The game appellation is given to a
partnership where  the parties are engaged in one branch of trade

  5. - 3. Special partnerships, are those formed for a special or
particular branch  of business,  as contradistinguished  from the
general business or employment of the parties, or of one of them.
When they  extend to a single transaction or adventure only, such
as the  purchase and  sale of  a particular parcel of goods, they
are more commonly called limited partnerships. The appellation is
however given  to both  classes of cases indiscriminately. Story,
Partn. §75

   6. -  §2. When  considered  in  relation  to  the  number  and
character of  the parties,  partnerships are divided into private
partnerships and  public companies.  1. Private  partnerships are
those which  consist of  two or  more partners  for some  private
undertaking, trade, or business.

   7. §2.  Public companies  are those  where a greater number of
persons  are   concerned,  and   the  stock  is  divided  into  a
considerable number  of shares,  the object  embracing  generally
public as  well as  private interests.  This  term  is,  however,
perhaps loosely  applied, as  these companies  have for  the most
part the  character of  private  associations.  They  are  either
incorporated or  not. The  incorporated are to be governed by the
rules established  in their respective charters. See Corporation.
The unincorporated are in general subject, to all the regulations
of a common private partnership.

  8. - §3. In the French law, partnerships are divided into three
kinds, namely:  1. Partnerships under a collective name, that is,
where the  name of  the firm contains the names of all or some of
the partners.

   9. - 2. Partnerships en commandite or in commendam;  these are
limited partnerships,  where one  or  more  persons  are  general
partners, and  are jointly  and severally  responsible  with  all
their estates,  and one or, more other persons who furnish a part
or the whole of the capital, who are liable only to the extent of
the capital  they have  furnished. The business is carried on in,
the name  of the  general partners.  This species of partnership,
with some  modifica- tions,  has been  adopted in  several of the
states of  the American union. 3 Kent, Com. 34, 4th ed.;  2 Bouv.
Inst. n. 1473, et seq.

   10. -  3. Anonymous  partnerships are  those in  which all the
partners are  engaged in the business, there is no social name or

         Bouvier's Law Dictionary : P1 : Page 27 of 100

firm, but  a name  designating the object of the association. The
business is  managed by  syndics  or  directors.  Vide  Poth.  de
Societe, h.  t.;  5, Duv. Dr. Civ., Fr. h. t.;  Pardes. Dr:  Com.
h. t.;   Code  de Com. h. t.;  Merl. Repert. h. t. In Louisiana a
similar division has been made. Civ. Code of Lo. h. t.

   11. - §4. Partnerships are created by mere act of the parties;
and in  this they  differ from,  corporations which  require  the
sanction of  public authority,  either express or implied. Aug. &
Ames on  Corp. 23.  The consent  of the parties may be testified,
either in  express terms,  as  by  articles  of  partnership,  or
positive agreement;   or  the assent  may be  tacit,  and  to  be
implied solely  from the  act  of  the  parties.  An  implied  or
presumptive assent  has equal  operation with one that is express
and determined.  And it  may  be  laid  down  as  a  general  and
undeniable proposition,  that persons having a mutual interest in
the profits  and loss  of any  business, or  particular branch of
business, carried  on by them, or persons appearing ostensibly to
the world  as joint  traders, are to be recognized and treated as
partners, whatever may be the nature of the agreement under which
they act,  or whatever  motive or  inducement may  prompt them to
such an exhibition. 1 Dall. 269. 12. A community of property does
not of  itself create a partnership, however that property may be
acquired, whether  by purchase,  donation, accession, inheritance
or prescription.  Civ. Code  of Louis.  art.  2777.  Hence  joint
tenants or  tenants in common of lands, goods, or chattels, under
devises or  bequests in  last wills  or testaments,  and doeds or
donations inter  vivos, and  inheritances or successions, are not
partners. Story, Partn. §3.

   13. Joint  owners of  ships are  not, in  consequence of  such
ownership, to  be considered  as partners. Abbot on Ship. 68;  3.
Kent, Com. 25, 4th ed.;  15 Wend. 187;  and see Poth. De Societe,
n. 2;   4 Pard. Dr. Com. n. 969;  17 Dur. Dr. Fr. n. 320;  5 Duv.
Dr. Civ. Fr. n. 33.

  14.- The free and personal choice of the contracting parties is
so essentially  necessary to  the constituting  of a partnership,
that even  executors and  representatives of deceased partners do
not, in  their representative  capacity, succeed to the state and
condition of  partners;   2 Ves.  sen. 34;   Wats.  on Partn.  6;
although a  community of interest necessarily exists between them
and the  surviving partners, until the affairs of the partnership
are wound  up. 11  Ves. 3.  When there is a positive agreement at
the  commencement   of  the   partnership,  that   the   personaI
representative or  heir of  a partner  shall succeed  him in  the
partnership, the  obligation will  be considered  valid. Coll. on
part. B. 1;  ch. 1, §11;  Story, Partn. §5.

   15. -  §5. The  object of  the partnership  must be legal. All
partnerships,  therefore,   which  are  formed  for  any  purpose
forbidden by  law or  good morals, are null and void. But all the
partners in  such a  partnership   are jointly  liable  to  third
persons who  may contract  with them  without a  knowledge of the
illegal or  immoral object  of the  partnership. Civ. Code of Lo.
art.- 2775;   5  B. &  A. 341 2 B. & P. 371;  3 T. R. 454;  Poth.
Oblig. by Evaans, vol. 2, page 3;  Gow on Partn. 8;  Wats. Partn.

         Bouvier's Law Dictionary : P1 : Page 28 of 100

131. Partnerships  are not  confined to  mere commercial trade or
business;   but generally  extend to,  manufactures and,  to  all
other lawful  occupations and  employments, or to professional or
other business.  They may  extend to  all  the  business  of  the
parties;   to a  single branch  of such  business;   to a  single
adventure;   or to a single thing. But there cannot lawfully be a
partnership in  a mere, personal office, especially when it is of
a public  nature, requiring  the personal confidence in the skill
and integrity  of the  officer. Story, Partn. §81;  Colly. Partn.

  16. - §6. Partnerships may be formed to last for life, or for a
specific period  of time;   they may be conditional or indefinite
in their  duration, or  for a  single adventure or dealing;  this
depends altogether  on the  will of  the parties.  The period  of
duration is  either expressed  or implied,  but the  law will not
presume that  it shall  last beyond  life. 1  Swanst. 521;   1 J.
Wils. R., 181. When a particular term is fixed, it is presumed to
endure until  the period  has elapsed;  when no term is fixed, it
is presumed  to endure  for  the  life  of  the  parties,  unless
previously dissolved,  by the  acts of  one of  them,  by  mutual
consent, or  by operation of law. Story, Partn. §84. When no time
is limited  for the duration of a general trading partnership, it
is a partnership at will, and may be dissolved at any time at the
pleasure of any one or more of the partners.

  17. - §7. A partnership may be dissolved in several ways:  when
the partnership is formed for a single dealing or transaction, it
follows that  it  is  at  an  end  so  soon  as  the  dealing  or
transaction in  which the  partners jointly engaged is completed.
Gow on Partn. 268;  Inst. Lib. 3, tit., 26, s. 6.

   18. Where  a general  partnership  is  formed,  either  for  a
definite, or  an indefinite  period of time, the causes which may
operate a  destruction of  it, are  various. In  the  case  of  a
partnership  limited   as  to   its  duration,  it  may,  in  the
intermediate  time,   before  the   restricted  period   of   its
termination arrives,  be  dissolved  either  by  the  death,  the
confirmed insanity, the bankruptcy of all or one of the partners,
or it  may endure  the stipulated  period, and  expire  with  the
effluxion of  time;  but where the partnership is unlimited as to
its existence,  although in the instances of death or bankruptcy,
it is  determined, yet  if they do not intervene, any partner may
withdraw himself from it whenever he thinks proper. Code, lib. 4,
t. 37, 1, 5.

   19. Besides  the causes  above stated  for  a  dissolution,  a
partnership, limited  or unlimited  as to  its duration,  may  be
dissolved by  the decree  of a court of equity, where the conduct
of some  or all  of the partners has been such as not to carry on
the trade  or undertaking on the terms stipulated;  Gow on Partn.
269;   or by  the involuntary  or compulsory, sale or transfer of
the partnership  interest of any one of the partners. 17 John. R.

   20. In  New York, it has been held that there is no such thing
as an  indissoluble partnership, and that, therefore, any partner

         Bouvier's Law Dictionary : P1 : Page 29 of 100

may withdraw  at any  time;  and by that act the partnership will
be solved;   the  other  party  having  his  action  against  the
withdrawing  partner   upon  his   covenant   to   continue   the
partnership;    19  Johns.  R.  538.  This  doctrine  is  not  in
accordance with  the English  law. Indeed  it is even doubtful in
New York. Story, Eq. Jur. §668;  Story, Partn. §275;  3 Kent Com.
61, 4th  ed.;   1 Hoffm.  Ch. R. 534. See Gow on Partn. 803, 305,
and 4 Wash. C. C. R. 232.

   21. It may also be dissolved by the extinction of the thing or
object of  the partnership;   or by the agreement of the parties.
See Civ.  Code of  Louis. art.  2847 Code  Civ. B. 3, fit. 9, c 4
art. 1865  to 1872;   2  Bell's Com.  631 to  6414, 6th  ed.  See

   22. The  effect of  the dissolution  of the  partnership is to
disable any  one of the partners from contracting new obligations
or engagements on account of the firm. 1 Pet., R. 351;  3 McCord,
378;   4 Munf. 215;  2 John., 300;  5 Mason, 56;  Harper, R. 470;
4 John.  224;   1 McCord, 338;  6 Cowen, 701. But notwithstanding
the dissolution  there remain, with each of the partners, certain
powers, rights,  duties, authorities, and relations between them,
which are  indispensable to  the complete  arrangement and  final
settlement of  the affairs  of the  firm. The  partnership  must,
therefore,  subsist   for  many   purposes,  notwithstanding  the
dissolution. Among  these are,  1st. The  completion  of  an  the
unperformed engagements of the partnership. 2d. The conversion of
all the  property, means  and assets of the partnership, existing
at the  time of  the dissolution,  for the  benefit of those who,
were partners,  according to  their respective  shares.  3d.  The
application of  the partnership funds, to, the liquidation of the
partnership debts. Story, Partn. §324.

   23. -  §3. By the laws of Louisiana, partnerships are divided,
as to  their object,  into commercial  partnerships and  ordinary
partnerships Commercial  partnerships are  such as are formed, 1.
For the  purchase of any personal property, and the sale thereof,
either in the same state or changed by manufacture. 2. For buying
and selling  any personal  property  whatsoever,  as  factors  or
brokers. 3.  For carrying personal property for hire, in ships or
other vessels. Civ. Code of Lo. art., 2796.

   24. Ordinary  partnerships are,  such as  are not  commercial;
they are  divided into  universal or particular partnerships. Id.
art. 2797.

   25. Universal  partnership is  a contract by which the parties
agree  to   make  a   common  stock  of  all  the  property  they
respectively possess;   they  may extend  it to  all the property
real and  personal, or  restrict it  to personal only;  they may,
as, in  other partnerships,  agree that the property itself shall
be common stock, or that the fruits only shall be such;  but prop
erty which  may accrue to one of the parties, after entering into
the partnership,  by donation,  succession, or  legacy, does  not
become common stock, and any stipulation to that effect, previous
to the  obtaining the  property aforesaid,  is void. Code Civ. of
Lo.art. 2800.

         Bouvier's Law Dictionary : P1 : Page 30 of 100

   26. Particular  partnerships are  such as  are formed  for any
business not  of a commercial nature. Id. art. 2806. The business
of this  partnership must  be conducted  in the  name of  all the
persons concerned,  unless a  firm is  adopted by the articles of
partnership reduced  to writing,  and recorded  as is  prescribed
with respect to partnerships in commendam. Id. art 2808.

   27. There  is also  a species  of  partnership  which  may  be
incorporated with  either of  the other kinds, called partnership
in commendam,  or limited  partnership. Id. art. 799. Partnership
in commendam  is formed  by a  contract, by  which one  person or
partnership agrees  to furnish  another person  or partnership  a
certain amount,  either in  property or  money, to be employed by
the person  or partnership  whom it is furnished, in his or their
own name  or firm,  on condition  of receiving  a  share  in  the
profits, in  the proportion  determined by  the contract,  and of
being liable  to losses and expenses to the amount furnished, and
no more. Id. art. 2810.

   28. Every species of partnership may receive such partners. It
is therefore  a  modification  of  which  the  several  kinds  of
partnerships are  susceptible, rather than a separate division of
partnerships. Vide Bouv. Inst. Index, h. t.:  Firm.

   PARTOWNERS. Persons  who hold real or personal property by the
same title,  either as  tenants  in  common,  joint  tenants,  or
coparceners. They  are sometimes called guasi partners and differ
from partners  in this,  that they  are either  joint owners,  or
tenants in  common,  each  having  an  independent,  although  an
undivided interest  in the  property;   neither can  transfer  or
dispose of the whole property, nor act for the others in relation
to it, but merely for his own share, and to the extent of his own
several right and interest.

  2. In joint tenancy of goods or chattels, it is true, the joint
tenants are seized per my et per tout;  but still each one has an
independent, and  to a certain extent a distinct right during his
lifetime, which he can dispose of and sever the tenancy.

  3. Tenants in common hold undivided portions of the property by
several titles,  or in  several rights,  although by  one  title.
Their possession,  however, they  hold in  common and  undivided.
Whereas, in  partnerships, the  partners are  joint owners of the
property, and  each has  a right to sell or dispose of the whole,
unless otherwise  provided for  in the  articles of  partnership.
Colly. Partn. 86;  Wats. Partn. 66;  Story, Partn. §91.

   4. At common law, each of the owners of a chattel has an equal
title and right to possess and use it;  and in the case of common
cbattels the  law has  generally left  this  right  to  the  free
discretion of  the several  owners but  in regard  to ships,  the
common law  has adopted  and followed'  out the  doctrine of  the
courts of  admiralty. It  authorizes the  majority in  value  and
interest to  employ the  ship upon  any probable  design. This is
done, not  without guarding the rights, of the minority. When the
majority desire  to employ  a ship  upon any particular voyage or

         Bouvier's Law Dictionary : P1 : Page 31 of 100

adventure, they  have a  right to  do so, upon giving security by
stipulation to  the minority,  if required,  to  bring  back  and
restore the ship to them, or in case of her loss, to pay them the
value of  their shares.  Abbott, Shipp. 70;  3 Kent Com. 151, 4th
ed.;  2 Bro. Civ. Law, 131;  Molloy, B. 2, c. 1, §3;  2 Pet. Adm.
R. 288;   Story,  Partn. 428 11 Pet. R. 175. When the majority do
not choose  to employ the ship, the minority have the same right,
upon giving  similar security.  11 Pet.  R. 175;  1 Hagg. Adm. R.
306;  Jacobi:  Sea Laws, 442.

   5. When  part owners are equally divided as to the employment,
upon any  particular voyage,  the courts  of admiralty  have  man
fested a disposition to support the right of the court to order a
sale of  the ship.  Story Partn. §439;  Bee's Adm. R. 2;  Gilpin,
R. 10;  18 Am. Jur. 486.

  PARTURITION. The act of giving birth to a child.

   2. Sometimes  questions arise how far means may be employed to
promote par  turition, which cause, or are likely to cause others
in relation  to it,  but merely  for his  own share,  and to  the
extent of his own several right and interest.

  3. In joint tenancy of goods or chattels, it is truej tbd joint
tenants are  so ized  per my et per toitt, but still each one has
an independent,  and to  a certain extent a distinct right during
his lifetime, which he can dispose of and sever the tenancy.

   3. Tenants  in common hold undivided portions of the, property
by several  titles, or  in several rights, although by one title.
Their possession,  bowever, they  hold in  common and  undivided.
Whereas, in  partnerships, the  partners are  joint owners of the
property, and  each has  a right to sell or dispose of the whole,
unless otherwise  provided for  in the  articles of  partnership.
Colly. Partn. 86;  Wats. Partn. 66;  Story Partn. §91.

   4. At common law, etch of the owners of a ebattel has an equal
title and right to possess and use it;  and in the case of common
chattels the  law has  generally, left  this right  to  the  free
discretion of  the several  owners, but  in regard  to ships, the
common law  has adopted  and followed  out the  doctrine  of  the
courts of  admiralty. It  authorizes the  majority in  value  and
interest to  employ the  rehip upon  any probable design. This is
done, not without guarding the rights, of the minority:  When the
maiority desire  to employ  a ship  upon any particular voyage or
adventure, they  have a  right to  do so, upon giving security by
stipulation to  the minority,  if required,  to  bring  back  and
restore the rbip to them, or in case of her loss, to pay them the
value of  their shares. Abbott, Shipp. 70;  3 Kent, Com. 151, 4th
ed.;  2 Bro. Civ. Law, 131;  Molloy, B. 2, c. 1, §3;  2 Pet. Adm.
R. 288,  Story, Partn. 428;  11 Pet. R. 175. When the majority do
not choose to employ the ship, the minority have, the same right,
upon 'vi" similar security. 11 Pet. R. 175;  I @agg! Adm. R. 306;
Jacobi. Sea Laws, 442.

   6. When  part owners are equally divided as to the employment,
upon  any  particular  voyage,  the  courts  of  admiralty,  have

         Bouvier's Law Dictionary : P1 : Page 32 of 100

manifested a  disposition to  support the  right of  the court to
order a sale of the ship. Story, Partn. §439;  Bee's Adm. R. 12 i
Gilpili, R. 10;  18 Am. Jur. 486.

  PARTURITION. Tho act of giving birth to a child

   2. Sometimes  questions arise bow far means may be employed to
promote par-turition,  which cause,  or are  likely to cause, the
death of  the foetus.  These means,  in cases of deformed pelvis,
are abortion in the early months, by embryotomy, by symphysotomy,
and by the Caesarian section. These means are justifiable to save
the life of the mother, and sometimes some of them have saved the
lives of both. Vide Caesarian operation;  Delivery;  Pregnancy.

   PARTUS. The child just before it is born, or immediately after
its birth.  Before birth the partus is considered as a portion of
the mother.  Dig. 25,  4, 1,  1. -See  Birth;   Foetus;   Proles;

   PARTY, practice, contracts. When applied to practice, by party
is understood  either the plaintiff or defendant. In contracts, a
party is one or more persons who engage to perform or receive the
performance of some agreement. Vide Parties to contrads;  Parties
to 'actions;  Parties to a suit in equity.

   PARTY-JURY. An ancient word used to signify a jury de medietas
linguae, (q.  v.) or  one composed  one-half of  natives, and the
other of foreigners. Lexic. Techn. h. t.

   PARTY WALL.  A wall  erected on the line between two adjoining
estates, belonging  to different  persons, for  the use  of  both
estates. 2 Bouv. Inst. n. 1615.

   2. Party  walls are  generally regulated  by acts of the local
legislatures. The  principles of  these acts  generally are, that
the wall  shall be  built equally  on the  lands of the adjoining
owners, at their joint expense, but when only one owner wishes to
use such  wall, it  is built  at his  expense, and when the other
wishes to  make use  of it,  he pays one half of its value;  each
owner has  a right  to place his joists in it, and use it for the
support of  his roof. When the party wall has been built, and the
adjoining owner is desirous of having a deeper foundation, he has
a right  to undermine  such wall, using due care and diligence to
prevent any injury to his neighbor, and having done so, he is not
answerable for  any consequential  damages which  may  ensue.  17
Jobn. R.  92;  12 Mass. 220;  2 N. H. Rep. 534. Vide 1 Dall. 346;
5 S . & R. 1.

   3. When  such wall  exists between two buildings, belonging to
different persons,  and one  of  them  takes  it  down  with  his
buildings, he  is required  to erect  another in  its place  in a
reasonable time,  and with  the least  inconvenience;   the other
owner must  contribute to  the  expense,  if  the  wall  required
repairs, but such expense will be limited to the costs of the old
wall. 3  Kent, Com.  436. When the wall is taken down, it must be
done with  care;   but it is not the duty of the person taking it
down to  shore up  or prop the.,house of his neighbor, to prevent

         Bouvier's Law Dictionary : P1 : Page 33 of 100

it from  falling;  if, however, the work be done with negligence,
by which  injury accrues to the neighboring house, an action will
lie. 1  Moody &  M. 362.  Vide 4 C. & P. 161;  9 B. & C. 725;  12
Mass. R. 220;  4 Paige's R. 169;  1 C. & J. 20;  1 Pick. 434;  12
Mass. 220;   2 Roll., Ab. 564;  3 B. & Ad. 874;  2 Ad. &-Ell. 493
Crabb on  R. P.  §500. In  the excellent  treatise of  M. Lepage,
entitled "Lois des Batimens," part 1, c. 3, s. 2, art. l, will be
found a  very minute  examination of  the subject of party walls,
with many  cases well  calculated to illustrate our law. See also
Poth. Contr.  de Societe,  prem. app. n. 207;  2 Hill.:  Ab. 119;
Toull. liv. 2, t. 2, c. 3.

   PASS. In  the slave  states this  word signifies a certificate
given by the master or mistress to a slave, in which it is stated
that he is permitted to leave his home, with the authority of his
master or  mistress.  The  paper  on  which-such  certificate  is
written is also called a pass.

   PASS, practice. To be given, or entered;  to proceed;  as, let
the judgment pass for the plaintiff.

  TO PASS. To accomplish, to complete, to decide.

   2. The  title to goods passes by the sale whenever the parties
have agreed  upon the  sale and the price, and nothing remains to
be done to complete the agreement. 1 Bouv. Inst. n. 939.

  3. When a jury decide upon the rights of the parties, which are
in issue, they are said to pass upon them.

   PASS BOOK,  com. law.  A book  used by  merchants  with  their
customers, in  which an  entry of  goods sold  and delivered to a
customer is made.

   2. It  is kept by the buyer, and sent to the merchant whenever
he wishes  to purchase any. article. It ought to be a counterpart
of the  mercbant's  books,  as  far  as  regards  the  customer's

   3. Among  English bankers,  the term  pass-book is  given to a
small book  made up  from time to time, from the banker's ledger,
and forwarded  to the  customer;   this is  not considered  as  a
statement of  account between  the parties, yet when the customer
neglects for a long time to make any objection to the correctness
of the  entries he  will be bound by them. 2 Atk. 252;  2 Deac. &
Ch. 534;  2 M. & W. 2.

  PASSAGE. A way over water;  a voyage made over the sea or great
river;  as, the Sea Gull had a quick passage:  the money paid for
the transportation  of a person over the sea;  as, my, passage to
Europe was one hundred and fifty dollars.

   PASSAGE MONEY, contracts. The sum claimable for the conveyance
of a person with or without luggage on the water.

   2. The  difference between  freight and passage money is this,
that the  former is  claimable for the carriage of goods, and the

         Bouvier's Law Dictionary : P1 : Page 34 of 100

latter for  the carriage  of the  person. The  same  rules  which
govern the  claim for  freight affect  that for  passage money. 3
Chit. Com. Law, 424;  1 Pet. Adm. Dee. 126;  3 John. 335.

  PASSIVE, com. law. All the sums of which one is a debtor. It is
used in  contradistinction to active. (q. v.) By active debts are
understood those  which may be employed in furnishing assets to a
merchant to  pay those  which he  owes, which  are called passive

   PASSPORT, SEA  BRIEF, or  SEA LETTER,  maritime law.  A  paper
containing a  permission from the neutral state to the captain or
master of a ship or vessel to proceed on the voyage proposed;  it
usually contains  his name  and residence;   the  name, property,
description, tonnage and destination of the ship;  the nature and
quantity of  the cargo;   the place from whence it comes, and its
destination;   with such  other matters  as the  practice of  the
place requires.

   2. -  This document  is indispensably necessary in time of war
for the  safety of  every neutral vessel. Marsh. Ins. B. 1, c. 9,
s. 6, p. 406, b.

   3. In most countries of continental Europe passports are given
to travellers;   these  are intended  to protect  them  on  their
journey from  all molestation,  while they  are obedient  to  the
laws. Passports  are also  granted by  the secretary  of state to
persons travelling  abroad, certifying  that they are citizens of
the United States. 9 Pet. 692. Vide 1 Kent, Com. 162, 182;  Merl.
Repert. h. t.

   PASSENGER, cont.  One who  has taken  a  place.  in  a  public
conveyance, for  the purpose  of being transported from one place
to another.

  2. By act of Feb. 22, 1847, Minot's Statutes at Large of United
States, p. 127, it is provided as follows:  That if the master of
any vessel  owned in  whole or in part by a citizen of the United
States of  America, or by a citizen of any foreign country, shall
take on  board, such  vessel, at  any foreign  port or  place,  a
greater number of passengers than in the following proportion, to
the space  occupied by  them and  appropriated for their use, and
unoccupied by  stores, or  other goods,  not being  the  personal
luggage of  such passengers, that is to say, on the lower deck or
platform one  passenger for every fourteen clear superficial feet
of deck,  if such vessel is not to pass within the tropics during
such voyage;   but  if such  vessel is to pass within the tropics
during such  voyage, then  one passenger,  for every  twenty such
clear superficial  feet of  deck, and  on the orlop deck (if any)
one passenger  for every  thirty such  superficial  feet  in  all
cases, with  intent to bring such passengers to the United States
of America,  and shall  leave such port or place with the same or
any other  number thereof,  within the jurisdiction of the United
States aforesaid,  or if  any such master of vessel shall take on
board of his vessel, at any port or place within the jurisdiction
of the  United States aforesaid, any greater number of passengers
than the  proportions aforesaid  admit, with  intent to carry the

         Bouvier's Law Dictionary : P1 : Page 35 of 100

same to  any foreign  port or  place, every  such master shall be
deemed guilty  of a  misdemeanor, and,  upon  conviction  thereof
before any  circuit  or  district  court  of  the  United  States
aforesaid, shall,  for each  passenger taken  on board beyond the
above proportions,  be fined in the sum of fifty dollars, and may
also  be   imprisoned  for  any  term  not  exceeding  one  year:
Provided, That this act shall not be construed to permit any ship
or vessel  to carry more than two passengers to five tons of such
ship or vessel.

   3. -  §2. That  if the  passengers so  taken on  board of such
vessel, and  brought into  or transported  from the United States
aforesaid, shall exceed the number limited by the last section to
the number of twenty in the whole, such vessel shall be forfeited
to the United States aforesaid, and be prosecuted and distributed
as forfeitures  are under  the act  to regulate duties on imports
and tonnage.

   4. -  §3. That if any such vessel as aforesaid shall have more
than two  tiers of  berths, or  in  case,  in  such  vessel,  the
interval between the floor and the deck or platform beneath shall
not be  at least  six inches, and the berths well constructed, or
in case  the dimensions  of such berths shall not be at least six
feet in  length, and  at least eighteen inches in width, for each
passenger as  aforesaid, then  the master of said vessel, and the
owners thereof,  severally, shall forfeit and pay the sum of five
dollars for  each and  every passenger on board of said vessel on
such voyage,  to be  recovered by the United States aforesaid, in
any circuit  or district  court of  the. United States where such
vessel may arrive, or from which she sails.

   5. -  §4. That,  for the purposes of this act, it shall in all
cases be  computed that two children, each being under the age of
eight years,  shall be  equal to one passenger, and that children
under  the  age  of  one  year  shall  not  be  included  in  the
computation of the number of passengers.

   6. -  §5. That  the amount of the several penalties imposed by
this act  shall be  liens on  the vessel or vessels violating its
provisions;  and such vessel may be libelled and sold therefor in
the district  court of  the United States aforesaid in which such
vessel shall arrive.

  9. By act of March 2, 1847, Minot's Statutes at Large of United
States, p.  149, it  is enacted,  That so  much of  said  act  as
authorizes shippers  to estimate  two children  of eight years of
age and  under as  one passenger,  in the  assignment of room, is
hereby repealed.

  10. The act of May 17, 1848, Minot's Statute at Large of United
States, p.  220, further  provides, That  all vessels, whether of
the  United  States  or  any  other  country,  having  sufficient
capacity according  to law  for fifty  or more passengers, (other
than cabin passengers,) shall, when employed in transporting such
passengers between  the United  States and  Europe, have  on  the
upper deck,  for the  use of  such passengers,  a house  over the
passage-way leading  to the apartment allotted to such passengers

         Bouvier's Law Dictionary : P1 : Page 36 of 100

below deck,  firmly secured  to the  deck, or  combings,  of  the
hatch, with  two doors,  the sills of which shall be at least one
foot above  the deck,  so constructed  that one door or window in
such house  may, at all times, be left open for ventilation;  and
all vessels  so employed,  and having  the capacity  to carry one
hundred and  fifty such  passengers, or more, shall have two such
houses;   and the  stairs or ladder leading down to the aforesaid
apartment shall  be furnished  with a  handrail of wood or strong
rope:   Provided, nevertheless, Booby hatches may, be substituted
for such houses in vessels having three permanent decks.

   11. -  §2. That  every such vessel so employed, and having the
legal capacity  for more  than one hundred such passengers, shall
have  at  least  two  ventilators  to  purify  the  apartment  or
apartments occupied  by such  passengers;   one of which shall be
inserted in  the after  part of  the apartment or apartments, and
the other shall be placed in the forward portion of the apartment
or apartments,  and one  of them  shall have an exhausting cap to
carry off  the foul  air, and  the other a receiving cap to carry
down the  fresh air  which said ventilators shall have a capacity
proportioned to  the size  of the  apartment or  apartments to be
purified;   namely, if  the apartment or apartments will lawfully
authorize the  reception of  two  hundred  such  passengers,  the
capacity of  such ventilators  shall each  of them  be equal to a
tube of  twelve inches  diameter in  the clear, and in proportion
for larger or smaller apartments;  and all said ventilators shall
rise at  least four  feet six  inches above the upper deck of any
such vessel,  and be  of the most approved form and construction:
Provided, That  if it shall appear from the report to be made and
approved., as  provided in  the seventh  section of this act that
such vessel  is equally  well ventilated by any other means, such
other means  of ventilation  shall be  deemed, and  held to be, a
compliance with the provisions of this section.

   12. -  §3. That  every vessel  carrying more  than fifty  such
passengers  shall   have  for  their  use  on  deck,  housed  and
conveniently arranged,  at least  one camboose  or cooking range,
the dimensions  of which shall be equal to four feet long and one
foot six  inches wide  for every  two hundred  passengers;    and
provisions shall  be made,  in the manner aforesaid in this ratio
for a  greater or  less number of passengers:  Provided, however,
Ana nothing  herein contained  shall take  away the right to make
such arrangements  for cooking  between decks,  if that  shall be
deemed desirable.

   13. - §4. That all vessels employed as aforesaid shall have on
board, for the use of such passengers, at the time of leaving the
last port whence such vessel shall sail, well secured under deck,
for each  passenger, at  least fifteen pounds of good navy bread,
ten pounds  of rice,  ten pounds  of oatmeal, ten pounds of wheat
flour, ten  pounds of  peas  and  beans,  thirty-five  pounds  of
potatoes, one  pint of vinegar, sixty gallons of fresh water, ten
pounds of  salted pork,  free of bone, all to be of good quality,
and a sufficient supply of fuel for cooking;  but at places where
either rice,  oatmeal, wheat  flour or  peas and  beans cannot be
procured, of  good quality  and on reasonable terms, the quantity
of either  or  any  of  the  other  last-named  articles  may  be

         Bouvier's Law Dictionary : P1 : Page 37 of 100

increased and  substituted therefor;  and in case potatoes cannot
be procured  on reasonable  terms, one  pound of  either of  said
articles maybe  substituted in  lieu of  five pounds of potatoes;
and the captains of such vessels, shall deliver to each passenger
at least  one-tenth part,  of the  aforesaid  provisions  weekly,
commencing on the day of sailing, and daily at least three quarts
of water, and sufficient fuel for cooking;  and if the passengers
on board  of any  such vessel  in which  the provisions, fuel and
water herein  required shall not have been provided as aforesaid,
shall at  any time  be put on short allowance during, any voyage,
the master  or owner  of any  such vessel  shall pay  to each and
every passenger  who shall  have been  put on short allowance the
sum of three dollars for each and every day they may have been on
such short  allowance, to be recovered in the eircuit or district
court of  the United States;  Provided, nevertheless, and nothing
herein contained shall prevent any passenger, with the consent of
the captain,  from furnishing  for himself  the articles  of food
herein specified;   and, if, put on board in good order, it shall
fully satisfy  the provisions of this act so far as regards food,
and provided  further, That  any passenger  may  also,  with  the
consent of the captain, furnish for himself an equivalent for the
articles of  food required  in other and different articles:  and
if, without  waste or  neglect on  the part  of the passenger, or
inevitable accident,  they prove  insufficient, and  the  captain
shall furnish  comfortable food  to such  passengers  during  the
residue of  the voyage,  this, in regard to food, shall also be a
compliance with the terms of this act.

   14. -  §5. That  the captain of any such vessel so employed is
hereby authorized to maintain good discipline, and such habits of
cleanliness  among   such  passengers,   as  will   tend  to  the
preservation and promotion of health,;  and to that end, he shall
cause such  regulations as  he may  adopt for  this purpose to be
posted up,  before sailing,  on board  such vessel,  in  a  place
accessible to  such passengers, and stall keep the same so posted
up during  the voyage;   and  it is  hereby made the duty of said
captain to  cause the apartment occupied by such passengers to be
kept, at  all times,  in a clean healthy state, and the owners of
every such  vessel so  employed are  required  to  construct  the
decks, and  all parts  of said  apartment,  so  that  it  can  be
thoroughly cleansed;    and  they  shall  also  provide  a  safe,
convenient privy  or water  closet for the exclusive use of every
one hundred  such passengers.  And when  the weather is such that
said passengers cannot be mustered on deck with their bedding, it
shall be  the duty  of the  captain of every such vessel to cause
the deck  occupied by  such passengers  to be  cleaned [cleansed]
with  chloride   of  lime,   or  some   other  equally  efficient
disinfecting agent,  and also at such other times as said captain
may deem necessary.

  15. - §6 That the master and owner or owners of any such vessel
so employed, which shall not be provided with the house or houses
over the passage-ways, as prescribed in the first section of this
act;  or with ventilators, as proscribed in the second section of
this act;   or  with the  cambooses or  cooking ranges,  with the
houses over them, as prescribed in the third section of this act;
shall severally  forfeit and  pay to the United States the sum of

         Bouvier's Law Dictionary : P1 : Page 38 of 100

two hundred  dollars for  each and every violation of, or neglect
to conform  to, the  provisions of  each of  said sections;   and
fifty dollars  for each  and every neglect or violation of any of
the provisions of the fifth section of this act;  to be recovered
by suit  in any  circuit or  district court of the United States,
within the  jurisdiction of  which the said vessel may arrive, or
from. which it may be about to depart, or at any place within the
jurisdiction of  such courts,  wherever the  owner or  owners, or
captain of such vessel, may be found.

  16. - §7. That the collector of the customs, at any port in the
United States  at which  any vessel  so employed shall arrive, or
from which  any such  vessel shall  be  about  to  depart,  shall
appoint and  direct one of the inspectors of the customs for such
port to  examine such  vessel, and  report  in  writing  to  such
collector whether  the provisions of the first, second, third and
fifth sections  of this act have been complied with in respect to
such vessel;  and if such report shall state such compliance, and
be approved  by such  collector, it  shall be  deemed and held as
conclusive evidence thereof.

   17. -  §8. That the first section of the act entitled, "An act
to regulate  the carrying  of passengers  in  merchant  vessels,"
approved   February    twenty-second,   eighteen    hundred   and
forty-seven, be  so amended  that, when  the height  or  distance
between the  decks of the vessels referred to in the said section
shall be  less than  six feet, and not less than five feet, there
shall be allowed to each passenger sixteen clear superficial feet
on the  deck, instead of fourteen, as prescribed in said section;
and if  the height  or distance  between the  decks shall be less
than  five  feet,  there  shall  be  allowed  to  each  passenger
twenty-two clear superficial feet on the deck;  and if the master
of any such vessel shall take on board his vessel, in any port of
the United States, a greater number of passengers than is allowed
by this  section, with the intent specified in said first section
of the  act of eighteen hundred and forty-seven, or if the master
of any  such vessel  shall take  on board  at a foreign port, and
bring within  the jurisdiction  of the  United, States, a greater
numher of passengers than is allowed by this section, said master
shall be  deemed guilty  of a  misdemeanor, and  upon  conviction
thereof  shall  be  punished  in  the  manner  provided  for  the
punishment of  persons  convicted  of  a  violation  of  the  act
aforesaid;   and in  computing the  number of passengers on board
such vessels, all children under the age of one year, at the time
of embarkation, shall be excluded from such computation.

   18. -  §9. That this act shall take effect, in respect to such
vessels sailing  from ports  in the United States, in thirty days
from the  time of  its approval;   and  in respect  to every such
vessel sailing  from ports  in Europe,  in sixty  days after such
approval;   and it  is hereby  made the  duty of the secretary of
state to  give notice,  in the  ports of  Europe, of this act, in
such manner as he may deem proper.

   19. -  §10. That  so much  of the  first section  of  the  act
entitled "  An  act  regulating  passenger  ships  and  vessels,"
approved March  second, eighteen  hundred and  nineteen,  or  any
other act  that limits the number of passengers. to two for every
five tons, is hereby repealed.

         Bouvier's Law Dictionary : P1 : Page 39 of 100

   20. By  act of  March 3,  1849, Minot's  Statutes at  Large of
United States, p. 399, it is enacted, That all vessels bound from
any port in the United States to any port or place in the Pacific
Ocean, or  on its  tributaries, or from any such port or place to
any  port   in  the,  United  States  on  the  Atlantic,  or  its
tributaries, shall  be subject  to the provisions of all the laws
now in  force relating  to the carriage of passengers in merchant
vessels,  sailing   to  and   from  foreign  countries,  and  the
regulation thereof;   except  the fourth  section of  the "Act to
provide for  the ventilation  of passenger vessels, and for other
purpoes,"  approved   May  seventeenth,   eighteen  hundred   and
forty-eight, relating  to provisions,  water, and  fuel;  but the
owners and masters of all such vessels shall in all cases furnish
to each  passenger the  daily supply  of water therein mentioned,
and they  shall furnish  for themselves,  a sufficient supply of,
good and  wholesome food;   and in case they shall fail so to do,
or shall provide unwholesome or unsuitable provisions, they shall
be subject to the penalty provided in said fourth section in case
the passengers are put on short allowance of water or provisions.

   21. -  §2. That  the act,  entitled "An  act to  regulate  the
carriage of  passengers in  merchant vessels,"  approved February
twenty-second, eighteen  hundred and  forty-seven,  shall  be  so
amended as  that a  vessel passing  into or  through the  tropics
shall be  allowed to  carry the  same  number  of  passengers  as
vessels that do not enter the tropics,

   22. By  act of  January 31, 1848, Minot's Statutes at Large of
United States,  p. 210,  it is  enacted, That, from and after the
passage of this act, all and every vessel and vessels which shall
or may  be employed  by the  American Colonization Society, or by
the Maryland  State Colonization Society, to transport, and which
shall actually  transport, from  any port  or ports in the United
States to  any colony  or colonies  on the  west coast of Africa,
colored emigrants  to reside  there, shall  be, and  the same are
hereby, excepted  out of  and exempted  from the operation of the
act entitled  " An  act to regulate the carriage of passengers in
merchant  vessels,"   passed  twenty-second   February,  eighteen
hundred and  forty-seven;   and of  the act. entitled " An act to
amend an  act entitled  'An  act  to  regulate  the  carriage  of
passengers in  merchant vessels, and to determine the time,' when
said act  shall take  effect,"' passed,  second  March,  eighteen
hundred and forty-seven.

   23. No  deduction is  to be made, in estimating, the number of
passengers in a vessel, for children or persons not paying. Gilp.
R. 334. For his rights and duties, vide Common Carriers.

  PASTURES, pastures. The land on which beasts are fed;  and by a
grant of pastures the land itself passes. 1 Thorn. Co, Litt. 202.

  PATENT, constrction. That which is open or manifest.

   2. This  word is usually applied to ambiguities which are said
to be latent, or patent.

         Bouvier's Law Dictionary : P1 : Page 40 of 100

   3. A  patent ambiguity  -is  one  which  is  produced  by  the
uncertainty, contradictoriness  or deficiency  of the language of
an instrument,  so  that  no  discovery  of  facts  or  proof  of
declaration can  restore the  doubtful or smothered sense without
adding ideas  which the  actual  words  will  not  of  themselves
sustain. Bac. Max. 99 T. Raym. R. 411;  Roberts on Fr. 15.

   4. A  latent ambiguity may be explained by parol evidence, but
the rule  is, different  with regard  to a patent abiguity, which
cannot be  explained by  parol proof.  The following instance has
been proposed  by the  court as a patent ambiguity:  " If A B, by
deed, give goods to one of the sons of J S, who has several sons,
he shall  not aver  which was  intended;   for by judgment of law
upon this deed, the gift is void for uncertainty, which cannot be
supplied by  averment." 8  Co. 155  a. And  no difference  exists
between a deed and a will upon this subject. 2 Atk. 239.

     5.  This   rule,  which  allows  an  explanation  of  latent
ambiguities, and  which forbids  the use  of  parol  evidence  to
explain a  patent ambiguity,  is difficult  of application. It is
attended,  in   some  instances,   with  very  minute  nicety  of
discrimination, and becomes a little unsteady in its application.
When a  bequest is  made " to Jones, son of, Jones," or " to Mrs.
B," it  is not  easy  to  show  that  the  ambiguity  which  this
imperfect designation  creates, is not ambiguity arising upon the
face of  the will,  and as  such, an  ambiguity patent, yet parol
evidence is  admitted to  ascertain the persons intended by those
ambiguous terms.

   6. The  principle upon  which parol  testimony is  admitted in
these cases,  is probably, in the first of them, a presumption of
possible ignorance  in the  testator of the christian name of the
legatee;   and in  the second, a similar presumption of his being
in the  habit of  calling the  person by  the  name  of  Mrs.  B.
Presumptions, which  being raised  upon the face of the will, may
be confirmed  and explained  by extrinsic  evidence. Rob' on. Fr.
15, 27;  2 Vern.

         Bouvier's Law Dictionary : P1 : Page 41 of 100

 624,  5;   1 Vern.  by Raithby, 31, note 2;  1 Rop. Leg. 147;  3
Stark. Ev.  1000;   3 Bro.  C. C. 311 2 Atk. 239;  3 Atk. 257;  3
Ves. Jr. 547. Vide articles Ambiguity;  Latent.

  PATENT, contracts. A patent for an invention is a giant made by
the government of the United States to the inventor of any new or
useful art, machine, manufacture or composition of matter, or any
new and  useful improvement  in any  art, machine, manufacture or
composition of  matter not  known or used by others before his or
their discovery or invention thereof, and not, at the time of his
application for  a patent,  in public  use or  on sale,  with his
consent or allowance, as the inventor or discoverer;  securing to
him for a limited time, therein expressed, the full and exclusive
right and  liberty of making, constructing, using, and vending to
others to  be used,  the said  invention or discovery, on certain
conditions, among  which is  the one  of at  once giving  up  his
secret and  making public  his discovery  or invention,  and  the
manner of making and using the same, so that at the expiration of
his privilege,  it may  become public  property.  The  instrument
securing this  grant is also called a patent. The subject will be
considered by taking a succint view of, 1. The legislation of the
United States  on the subject. 2. The patentee. 3. The subject to
be patented.  4. The  caveat and  preliminary proceedings. 5. The
proceedings to obtain a patent. 6. The patent. 7. The duty or tax
on patents.  8. Courts  having jurisdiction  in patent  cases. 9.
Actions for  violations of patents. §1. Legislation of the United
States. 2.  The constitution  of  the  United  States  authorizes
congress to  pass laws  " to, promote the progress of science and
the useful  arts, by  securing, for limited times, to authors and
inventors, the  exclusive right  of their respective writings and
discoveries." Art.  1, s.  8, n.  8. By  virtue of this authority
congress can  grant patents  to inventors,  and it  rests in  the
sound, discretion  of the  legislature to  say when, and for what
length of  time, and  under what  circumstances the patent for an
invention shall  be granted.  Congress may,  therefore,  grant  a
patent which  shall operate  retrospectively by  securing to  the
inventor the  use of  his invention,  though it was in public use
and enjoyed  by the community at the time this act was passed . 3
Sumn. 535;   2  Story, R.  164. The  first act  passed under this
power is  that which established the patent office on the 10th of
April, 1790, 1 Story, L. U. S. 80. There were several supplements
and modifications  to this  first law,  namely, the  acts  passed
February 7, 1793, Idem, 300;  June 7, 1794, Idem, 363;  April 17,
1800, Idem,  753;  July 3,1832, 4 Sharsw. cont. of Story, L. U.S.
2300;  July 13, 1832, Idem, 2313.

   3. These  acts were  repealed by  the act  of July  4, 1836, 4
Sharsw. cont. Story, L. U. S. 2504, which. enacts:

  §21. That all acts and parts of acts theretofore passed on this
subject be, and the same are hereby repealed:  Provided, however,
That all  actions and  processes, in law or equity sued out prior
to the  passage of  this act, may be prosecuted to final judgment
and execution, in the same manner as though this act had not been
passed, excepting  and saving the application to any such action,
of the  provisions of  the fourteenth  and fifteenth  sections of
this act,  so far as they maybe applicable thereto. And provided,

         Bouvier's Law Dictionary : P1 : Page 42 of 100

also, That all applications and petitions for patents, pending at
the time  of the passage of this act, in cases where the duty has
been paid,  shall be  proceeded with  and acted  on in  the  same
manner as though filed after the passage thereof.

   4. The  existing laws on the subject of patents are the act of
July 4,  1836, already  mentioned;   the acts  of March  3, 1837;
Idem, 2546;   March  3, 1839;  9 Laws U. S, 1019;  August29,1842;
ch. 263, Pamph. Laws, 171;  May 27, 1848. Minot's Stat. at Large,
U. S. 231. §2. Of the patentee.

   5. Any  person or  persons having  discovered or  invented the
thing to  be pa-tented,  whether he  be a  citizen of  the United
States or  an alien,  is entitled  to a  patent on fulfilling the
requirements of the law. Act of July 4, 1836, s. 6.

   6. By  the 10th  section of  the same act it is provided, That
where  any  person  hath  made,  or  shall  have  made,  any  new
invention, discovery or improvement, on account of which a patent
might by  virtue of  this act  be granted, and, such person shall
die before  any patent  shall be  granted therefor,  the right of
applying for  and obtaining  such patent  shall  devolve  on  the
executor or  administrator of such person, in trust for the heirs
at, law  of the  deceased, in  case he shall have died intestate;
but if  otherwise, then in trust for his devisees, in as full and
ample manner,  and under  the same  conditions, limitations,  and
restrictions, as the same was held, or might have been claimed or
enjoyed by such in his or her lifetime;  and when application for
a patent shall be made by such legal representatives, the oath or
affirmation provided  in the  sixth section of this act, shall be
so varied as to be applicable to them.

   7. And  by the act of March 3, 1837, section 6, it is enacted,
That any patent hereafter to be issued, may be made and issued to
the assignee  or assignees  of the  inventor or  discoverer,  the
assignment  thereof  being  first  entered  of  record,  and  the
application therefor being duly made, and the specifications duly
sworn to  by the  inventor. And  in  all  cases,  hereafter,  the
applicant for  a  patent  shall  be  held  to  furnish  duplicate
drawings, Whenever  the case  admits of drawings, one of which to
be deposited  in the  office, and  the other to be annexed to the
patent, and considered a part of the specification.

  §3. The subject to be patented

   8. Patents  are granted, 1. For inventions and discoveries. 2.
For importations.  1. Patents  for inventions and discoveries. By
the act, of July 4, 1836, sect. 6, it is enacted, that any person
or persons  having discovered or invented any new and useful art,
machine,, manufacture,  or composition  of matter, or any new and
useful  improvement   on  any   art,  machine,   manufacture,  or
composition of  matter, not known or used by others before his or
their discovery or invention thereof, and not, at the time of his
application for  a patent,  in public  use or  on sale,  with his
consent or  allowance, as  the inventor  or discoverer, and shall
desire  to   obtain  an  exclusive  property  therein,  may  make
application in writing to the commissioner of patents, expressing

         Bouvier's Law Dictionary : P1 : Page 43 of 100

such desire,  and the  commissioner on  due proceedings  had, may
grant a patent therefor.

   9. The thing to be patented must be an invention Or discovery;
it must be new and useful.

  10. - 1. The invention or discovery must be something which the
inventor has  himself found  out;  some peculiar device or manner
of producing  any given  effect. A  patent cannot,  therefore, be
taken  out   for  the  elementary  principles  of  motion,  which
philosophy and  science have  discovered, but only for the manner
of applying them. 1 Gallis. 478;  2 Gallis. 51.

   11. A  patent may be taken out for an improvement on a machine
which is  known and  used;   3 Wheat.  454;  but a mere change of
former proportions,  will not  entitle a  party to  a  patent.  1
Gallis. 438;  2 Gallis. 51.

   12. It  is provided  by the  act of  July 4, 1836, s. 13, that
whenever the  original patentee  shall be  desirous of adding the
description and  specification of  any  new  improvement  of  the
original invention or discovery which shall have been invented or
discovered by  him subsequent  to the date of his patent, he may,
like proceedings  being had  in all  respects as  in the  case of
original applications,  and on the payment of fifteen dollars, as
hereinbefore provided,  have the  same annexed  to  the  original
description  and  specification;    and  the  commissioner  shall
certify,  on   the  margin   of  such   annexed  description  and
specification, the  time of  its being annexed and recorded;  and
the same  shall thereafter  have the  same effect  in law, to all
intents and  purposes as  though it  had  been  embraced  in  the
original description and specification.

   13. And  by the  act of  March 3,  1837, s.  8, that, whenever
application shall be made to the commissioner for any addition of
a newly  discovered improvement to be made on an existing patent,
or when  ever a  patent shall  be returned  for  correction,  and
re-issue, the specification of claim annexed to every such patent
shall be  subject to revision and restriction, in the same manner
as are  original applications  for patents;    the  commissioner,
shall not add any such improvement to the patent in the one case,
nor grant  the re-issue  in the  other case,  until the applicant
shall have  entered a disclaimer, or altered his specification of
claim in  accordance with  the decision of the commissioner;  and
in all  such cases  the  applicant,  if  dissatisfied  with  such
decision, shall  have the  same remedy  and be  entitled  to  the
benefit of the same privileges and proceedings as are provided by
law in the case of original applications for patents.

  14. - 2. The thing patented must be a new and useful invention,
discovery or improvement.

   15. Among  inventors, he  who is first in time, has a right to
the patent for the invention. Pet. C. C. R. 394.

   16. But  by the act of March 3, 1839, sect. 7, it is provided,
that  every  person  or  corporation  who  has,  or  shill  have,

         Bouvier's Law Dictionary : P1 : Page 44 of 100

purchased or constructed any newly invented machine, manufacture,
or composition  of  matter,  prior  to  the  application  by  the
inventor or discoverer for a patent, shall be held to possess the
right to  use, and  vend to  others  to  be  used,  the  specific
machine,  manufacture,  or  composition  of  matter  so  made  or
purchased, without  liability therefor  to the  inventor, or  any
other person  interested in  such invention;  ana no patent shall
be held  to be  invalid by reason of such purchase, sale, or use,
prior to  the application  for a  patent as  aforesaid, except on
proof of  abandonment of  such invention  to the public;  or that
such purchase,  sale, or  prior use  has been  for more  than two
years prior to such application for a patent.

   17. By  the term  useful invention is meant an invention which
may  be   applied  to   some  beneficial   use  in   society,  in
contradistinction to  an invention  which is injurious to morals,
to the  health, or  good order of society. 1 Mason, C. C. R. 302;
4 Wash.  C. C;   R.  9. The term is also opposed to that which is
frivolous or  mischievous. 1 Mason, C. C. R. 182;  Renouard, 177;
Perpigna, Man. des Inv. c. 2, s. 1, page 50. See 3 Car. & P. 502;
1 Pet.  C. C.  R. 480;  1 U. S. Law Journ. 563;  1 Paine, 203;  2
Kent, Com. 368, Dr;  Phill. on Pat. c. 7, s. 14.

   18. The  act of  August 29,  1842, sect,  3, provides that any
citizen or citizens, or alien or aliens, having resided, one year
in the  United States,  and  taken  the  oath  of  his  or  their
intention to  become a  citizen or  citizens, who by his, her, or
their own  industry,  genius,  efforts,  and  expense,  may  have
invented  or   produced  any   new  and  original  design  for  a
manufacture, whether of metal, or other material or materials, or
any new  and original  design for  the printing  of woolen, silk,
cotton, or  other fabrics,  or any  new and original design for a
bust, statue,  or has  relief or  composition in  alto  or  basso
relievo, or any new and original impression or ornament, or to be
placed on  any article  of manufacture,  the same being formed in
marble or  other material,  or any  new and  useful  pattern,  or
print, or  picture, to  be either  worked-into or  worked on,  or
printed, or  painted, or cast, or otherwise fixed on, any article
of manufacture, or any new and original shape or configuration of
ally article  of manufacture  not known  or used by others before
his, her,  or their invention or production thereof, and prior to
the time of his, her, or their application for a patent therefor,
and who  shall desire  or obtain  an exclusive  Property or right
therein to  make, use,  and sell and vend. the same, or copies of
the same,  to others,  by them,  made, used,  and sold,  may make
application in writing to the commissioner of patents, expressing
such desire,  and the  commissioner, on  due proceedings had, may
grant a patent therefor, as in the case. now of application for a
patent:   Provided, That  the fee  in such cases which by the now
existing laws would be required of the particular applicant shall
be one-half  the sum,  and that the duration of said patent shall
be seven years, and that all the regulations and provisions which
now  apply   to  the  obtaining  or  protection  of  patents  not
inconsistent with  the provision's  of this  act, shall  apply to
applications under this section.

                 2. Patents-for importations.

         Bouvier's Law Dictionary : P1 : Page 45 of 100

   19. It  is enacted  by the act of March 3, 1839, s. 6, that no
person  shall  be  debarred  from  receiving  a  patent  for  any
invention or  discovery, as  provided in  the act approved on the
fourth day of July, one thousand eight hundred and thirty-six, to
which this  is additional,  by reason  of the  same  having  been
patented in, a foreign country, more than six months prior to his
application:   Provided,  That  the  same  shall  not  have  been
introduced into  public and  common use,  in the  United  States,
prior to  the application  for such  patent:  And provided, also,
That in  all cages every such patent shall be limited to the term
of fourteen  years from  the date  or publication of such foreign

   20. And by the act of July 4, 1836, s. 8, it is provided, that
nothing in  this act  contained shall be, construed to deprive an
origisal and  true inventor  of the  right to  a patent  for  his
invention,  by   reason  of   his  having  previously  taken  out
letters-patent therefor in a foreign country, and the same having
been published  at any  time within six mouths next preceding the
filing of his specification and drawing.

        4. Of the caveat and other preliminary, proceedings.

   21. The  act of July 4, 1836, s. 12, provides that any citizen
of the  United States,  or alien  who have  been resident  in the
United States  one year  next preceding, and shall have made oath
of his  intention to  become a  citizen thereof,  who shall  have
invented any  new art, machine, or improvement thereof, and shall
desire further  time to  mature the  same, may,  on paying to the
credit of  the treasury,  in manner  as  provided  in  the  ninth
section of  this act,  the sum  of twenty  dollars, file  in  the
patent office  a caveat,  setting forth  the design  and  purpose
thereof, and  its principal  and distinguishing  characteristics,
and praying  protection of  his right, till he shall have matured
his invention  - which  sum of twenty dollars, in case the person
filing such  caveat shall  afterwards take  out a  patent for the
invention therein  mentioned, shall  be considered  a part of the
sum herein  required for the same. And such caveat shall be filed
in the  confidential archives  of the  office, and  preserved  in
secrecy. And  if application  shall be  made by  any other person
within one year from the time of filing such caveat, for a patent
of any  invention with  which it may in any respect interfere, it
shall be the duty of the commissioner to deposit the description,
specifications, drawings, and model, in the confidential archives
of the  office, and to give notice, by mail, to the person filing
the caveat,  of such  application, who shall, within three months
after receiving  the notice,  if he  would avail  himself of  the
benfit of  his  caveat,  file  his  description,  specifications,
drawings, and model:  and if, in the opinion of the commissioner,
the specifications  of claim  interfere  with  each  other,  like
proceeding& may  be had  in all  respects  as  are  in  this  act
provided in  the case  of interfering  applications:    Provided,
however, That  no opinion  or decision of any board of examiners,
under the  provisions of  this act,  shall  preclude  any  person
interested in  favor of  or against  the validity  of any  patent
which has  been or  may hereafter  be granted,  from the right to

         Bouvier's Law Dictionary : P1 : Page 46 of 100

contest the  same in  any judicial  court in  any action in which
its, validity may come in question.

   22. And  the same  act, s.  8,  directs,  that  whenever,  the
applicant shall  request it,  the patent shall take date from the
time of  the  filing  of  the  specification  and  drawings,  not
however, exceeding  six mouths prior to the actual issuing of the
patent;   and on like request, and the payment of the duty herein
required, by  any applicant, his specification and drawings shall
be filed  in the  secret archives  of the  office, until he shall
furnish the  model and  the patent  be issued,  not exceeding the
term of  one year,  the applicant  being entitled  to  notice  of
interfering application.

             §5. Of the proceedings to obtain a patent.

    23  .  This  section  will  be  divided  by  considering  the
proceedings when  there is  no opposition,  and  when  there  are
conflicting claims.

               1. Proceedings without opposition

  24. The sixth section of the act of July 4, 1836, directs, that
before any  inventor shall  receive a  patent for  any  such  new
invention or discovery, he shall deliver a written description of
his invention  or discovery,  and of  the manner  and process  of
making, constructing,  using, and  compounding the  same, in such
full, clear,  and exact terms, avoiding unnecessary prolixity, as
to enable  any person  skilled in  the art or science to which it
appertains, or  with which  it is most nearly connected, to make,
construct, compound,  and use  the same;   and  in  case  of  any
machine, he  shall fully  explain the  principle and  the several
modes in  which he  has  contemplated  the  application  of  that
principle or character by which it may be distiguished from other
inventions and shall particularly specify and point out the part,
improvement, or combination, which he claims as his own invention
or discovery.  He shall,  furthermore, accompany the whole with a
drawing, or drawings, and written references, where the nature of
the case  admits of  drawings, or  with specimens of ingredients,
and of  the composition of matter, sufficient in quantity for the
purpose of  experiment, where  the invention or discovery is of a
composition of  matter;   which descriptions and drawings, signed
by the inventor and attested by two witnesses;  shall be filed in
the patent  office;   and be  shall, moreover, furnish a model of
his invention,  in all  cases which  admit of a representation by
model, of a convenient size to exhibit advantageously its several
parts. The  applicant shall also make oath or affirmation that he
does verily believe that he is the original and first inventor or
discoverer of  the art, machine, composition, or improvement, for
which he  solicits a patent, and that he does not know or believe
that the  same was  ever known or used;  and also of what country
he is  a citizen;   which oath or affirmation may, be made before
any person authorized by law to administer oaths.

   25. The fourth section of the act of August 29, 1842, provides
that the  oath required for applicants for patents, may be taken,

         Bouvier's Law Dictionary : P1 : Page 47 of 100

when the  applicant is  not, for  the time being, residing in the
United States,  before any  minister pleni-potentiary,  charge  d
affaires;   consul, or  commercial agent,  holding  a  commission
under the  government of  the United States, or before any notary
public of the country in which such applicant may be.

   26. And  the act  of March 3, 1837, sect. 13, provides that in
all cases in which an oath is required by this act, or by the act
to which this is additional, if the person of whom it is required
shall  be   conscientiously  scru-pulous   of  taking   an  oath,
affirmation may be substituted therefor.

   27. The  seventh section  of the  act of July 4, 1836, further
enacts, that  on the filing of any such application, description,
and specification,  and  the  payment  of  the  duty  hereinafter
provided, the  commissioner shall  make or  cause to  be made, an
examination of  the alleged  new invention or discovery;  and if,
on any  such examination, it shall not appear to the commissioner
that the same had been invented or discovered by any other person
in this  country prior  to the  alleged  invention  or  discovery
thereof by  the applicant,  or  that  it  had  been  patented  or
described in  any printed  publication in  this  or  any  foreign
country,  or  had  been  in  public  use  or  on  sale  with  the
applicant's consent or allowance prior to the application, if the
commissioner  shall   deem  it  to  be  sufficiently  useful  and
important, it  shall be  his duty to issue a patent therefor. But
whenever on  such examination it shall appear to the commissioner
that the  applicant wag  not the  original and  first inventor or
discoverer thereof,  or that any part of that which is claimed as
new had  before been  invented or  discovered,  or  patented,  or
described in  any printed,  publication in  this or  any  foreign
country, as  aforesaid, or  that the description is defective and
insufficient, he  shall notify the applicant thereof, giving him,
briefly, such  information and,  references as  may be  useful in
judging of  the propriety  of renewing  his  application,  or  of
altering his  specification to  embrace only  that  part  of  the
invention or  discovery which  is new. In every such case, if the
applicant shall  elect to withdraw his application, relinquishing
his claim  to the  model, he  shall be  entitled to  receive back
twenty dollars part of the duty required by this act, on filing a
notice in  writing of  such election in the patent office, a copy
of which,  certified by  the commissioner,  shall be a sufficient
warrant to  the treasurer  for paying  back to said applicant the
said sum  of twenty  dollars. But  if the  said applicant in such
case shall persist in his claim for a patent, with or without any
alteration of  his specification,  he shall  be required  to make
oath or  affirmation anew  in manner  as aforesaid.  And  if  the
specification and claim shall not have been so modified as in the
opinion of  the commissioner,  shall entitle  the applicant  to a
patent, he  may, on appeal, and upon request in writing, have the
decision of  the board  of examiners,  to be  composed  of  three
disinterested persons, who shall be appointed for that purpose by
the secretary  of state, one of whom at least, to be selected, if
practicable and  convenient, for  his knowledge  and skill in the
particular art,  manufacture, or  branch of  science to which the
alleged invention  appertains;    who  shall  be  under  oath  or
affirmation for  the faithful  and impartial  performance of  the

         Bouvier's Law Dictionary : P1 : Page 48 of 100

duty imposed  upon them  by said appointment. Said board shall be
furnished with  a certificate  in writing,  of  the  opinion  and
decision of  the commissioner,  stating the particular grounds of
his objection,  and the  part or  parts of the invention which he
considers as  not entitled  to be  patented. And  the same  board
shall give  reasonable notice to the applicant, as well as to the
commissioner of  the time  and place of their meeting;  that they
may have  an opportunity  of furnishing  them with such facts and
evidence as  they may deem necessary to. a just decision;  and it
shall be  the duty of the commissioner to furnish to the board of
examiners such  information as  he may  possess relative  to  the
matter under  their consideration.  And  on  an  examination  and
consideration of  the matter  by such board, it shall be in their
power, or  of a  majority of them, to reverse the decision of the
commissioner, either  in whole  or in  part;   and their  opinion
being certified to the commissioner, he shall be governed therby,
in the  further  proceedings  to  be  had  on  such  application:
Provided, however, That before a board shall be instituted in any
such case, the applicant shall pay to the credit of the treasury,
as provided  in the  ninth section of this act, (see 47,) the sum
of twenty-five  dollars, and  each of  said persons  so appointed
shall be entitled to receive for his services in each case, a sum
not exceeding  ten dollars,  to be  determined and  paid  by  the
commissioner out  of any  moneys in  his hands, which shall be in
full compensation  to, the  persons who  may be so appointed, for
their examination and certificate as aforesaid.

   28. By  the twelfth  section of  the act of March 3, 1839, the
commissioner of  patents is  vested with  power to  make all such
regulation's in  respect to  the taking of evidence to be used in
contested leases before him, as may be just and reasonable and so
much of  the act  of July  4, 1836,  as provides  for a  board of
examiners, is thereby repealed.

   29. And by the same act, sect. 11, it is provided, that in all
cases where an appeal is now. allowed by law from the decision of
the commissioner  of patents to a board of examiners provided for
in the  seventh section  of the  act to which this is additional,
the party,  instead thereof,  shall have a right to appeal to the
chief justice  of the district court of the United States for the
district  of   Columbia,  by   giving  notice   thereof  to   the
commissioner, and  filing in  the patent office, within such time
as  the  commissioner  shall  appoint,  his  reasons  of  appeal,
specifically set  forth in  writing, and  also  paying  into  the
patent office,  to the  credit of  the patent  fund, the  sum  of
twenty-five dollars.  And it  shall be  the. duty  of said  chief
justice, on petition, to hear and determine all such appeals, and
to revise  such decisions  in a  summary manner,  on the evidence
produced before  the commissioner,  at such  early and convenient
time as  he may  appoint, first notifying the commissioner of the
time and  place of hearing, whose duty it shall be to give notice
thereof to  all parties  who appear  to be interested therein, in
such manner as said judge shall prescribe. The commissioner shall
also lay  before the  said judge  all  the  original  papers  and
evidence in  the case, together with the grounds of his decision,
fully set  forth in  writing, touching all the points involved by
the reasons  of appeal,  to which the revision shall be confined.

         Bouvier's Law Dictionary : P1 : Page 49 of 100

And at  the request  of any party interested, or at the desire of
the judge,  the commissioner  and the  examiners  in  the  patent
office, may  be  examined  under  oath,  in  explanation  of  the
principles of  the machine, or other thing for which a patent, in
such case,  is prayed for. And it shall be the duty of said judge
after a hearing of any such case, to return all the papers to the
commissioner,  with   a  certificate  of  his  proce  edings  and
decision, which  shall be entered of record in the patent office;
land such  decision,  so  certified,  shall  govern  the  further
proceedings of  the commissioner in such case, Provided, however,
That no  opinion or decision of the judge in any such case, shall
preclude any  person interested  in favor or against the validity
of any  patent, which  has been or way hereafter be granted, from
the right  to contest  the same  in any  judicial court,  in  any
action in which its validity may come in question.

           2. When there are conflicting claims.

   30. It  is enacted  by the  8th section  of the act of July 4,
1836, that  whenever an  application shall  be made for a patent,
which, in  the opinion  of the commissioner, would interfore with
any other patent for which an application may be pending, or with
any unexpired  patent which  shall have been granted, it shall be
the duty  of the  commissioner to  give notice  thereof  to  such
appli-cants or  patentees;   as the  case maybe;   and  if either
shall be  dissatisfied with  the decision  of the commissioner on
the question  of priority,  right  or  invention,  on  a  hearing
thereof, he  may appeal from such decision, on the like terms and
conditions as  are provided  in the preceding section of this act
and like  proceedings, shall  be  had,  to  determine  which,  or
whether either  of the applicants is entitled to receive a patent
as prayed for.

   31. And  by the  16th section  of the  same act, that whenever
there shall  be two  interfering patents, or whenever a patent on
application shall  have been  refused on an adverse decision of a
board of  examiners, on  the ground  that the  patent applied for
would interfere  with an unexpired patent previously granted, any
person interested  in any  such patent,  either by  assignment or
otherwise, in  the one case, and any such applicant in the other,
may have  remedy by  bill  in  equity;    and  the  court  having
cognizance thereof,  on notice  to adverse  parties and other due
proceedings had,  may adjudge and declare either the patents void
in whole or in part, or inoperative and invalid in any particular
part or  portion of  the United States, according to the interest
which the  parties in  such suit may possess in the patent or the
inventions patented,  and may also adjudge that such applicant is
entitled, according to the principles and provisions of this act,
to have  and receive  a patent for his invention, as specified in
his claim,  or for  any part  thereof, as the fact of priority of
right or  invention shall in any such case be made to appear. And
such adjudication,  if it  be in  favor  of  the  right  of  such
applicant, shall authorize the Commissioner to issue such patent,
on his filing a copy of the adjudication, and otherwise complying
with the  requisitions of  this act.  Provided, however,  that no
such judgment  or adjudication  shall affect  the rights  of  any
persons except the parties to the action and those deriving title

         Bouvier's Law Dictionary : P1 : Page 50 of 100

from or  under them subsequent to the rendition of such judgment.
And the  commissioner is vested by the 12th section of the act of
March 3,  1839, with powers to make such rules and regulations in
respect to  the taking  of evidence to be used in contested cases
before him, as may be just and reasonable.

   32. The  act of  March 3, 1839, section 10, provides, that the
provisions of  the sixteenth  section of  the before  recited act
shall extend  to all  cases where the patents are refused for any
reason whatever,  either by the commissioner of patents or by the
chief justice  of the district of Columbia, upon appeals from the
decision of  said commissioner,  as well  as where the same shall
have been  refused on  account of,  or by  reason of interference
with a  previously existing patent;  and in all cases where there
is ne opposing party, a copy of the bill shall be served upon the
commissioner of  patents, when  the whole  of the expenses of the
proceeding shall  be paid  by the  applicant, whether  the  final
decision shall be in his favor or otherwise.

                       §6. Of the patent.

  33. This section will be divided by considering, 1. The form of
the patent.  2. The  correction of  the patent.  3.  The  special
provisions of  the acts  of congress occasioned by the burning of
the patent  office. 4.  The  disclaimer.  5.  The  assignment  of
patents. 6.  The extension of the patent. 7. The requisites to be
observed after the granting of a patent to secure it.

                     1. Form of the patent.

   34. The  patent is  to be issued in the form prescribed by the
act of  congress. The  fifth section  of the act of July 4, 1836,
directs, that  all patents  issuing from  said  office  shall  be
issued in  the name  of the  United States, and under the seal of
said office,  and be  signed  by  the  secretary  of  state,  and
countersigned by  the commissioner  of the said office, and shall
be recorded,  together with  the descriptions, specifications and
drawings, in  the said  office, in  books to  be  kept  for  that
purpose. Every  such patent  shall contain a short description or
title of  the invention  or discovery,  correctly indicating  its
nature and  design, and  in its  terms grant  to the applicant or
applicants, his  or their  heirs,  administrators,  executors  or
assigns, for  a term  not exceeding  fourteen years, the full and
exclusive right  and liberty  of making,  using, and  vending  to
others to  be used, the said invention or discovery, referring to
the specifications  for the  particulars thereof, a copy of which
shall be  annexed to  the patent,  specifying what  the  patentee
claims as  his invention or discovery. It is usually dated at the
time of issuing it, but by a provision of the last mentioned act,
section 8,  whenever the  applicant shall  request it, the patent
shall take  date, from  the time of filing, the specification and
drawings, not,  however, exceeding six months prior to the actual
issuing of the patent.

         Bouvier's Law Dictionary : P1 : Page 51 of 100

                     2. Correction of patent.

   35. It  is provided  by the  thirteenth section  of the act of
July. 4, 1836, that whenever any patent which has heretofore been
granted,  or   which  shall   hereafter  be   granted,  shall  be
inoperative or  invalid, by reason of a defective or insufficient
description or  specification,  or  by  reason  of  the  patentee
claiming in  his specification as his own invention, more than he
had or  shall have a right to claim as new;  if the error has, or
shall have  arisen b  y inadvertency,  accident or  mistake,  and
without any fraudulent or deceptive intention, it shall be lawful
for the  c6mmissioner, upon  the surrender to him of such patent,
and the  payment of the further duty of fifteen dollars, to cause
a new  patent to  be issued  to the  said inventor,  for the same
invention, for the residue of the period then unexpired for which
the  original   patent  was   granted,  in  accordance  with  the
patentee's corrected  description and  specification. And  in the
event of his death, or any assignment by him made of the original
patent,  a   similar  right   shall  vest   in   his   executors,
administrators,  or  assignees.  And  the  patent,  so  reissued,
together with  the corrected description and specification, shall
have the  same effect  and operation  in law, on the trial of all
actions, hereafter commenced for causes subsequently accruing, as
though the same had been originally filed in such corrected form,
before the  issuing out  of the original patent. And whenever the
original patentee shall be desirous of adding the description and
specification of any new improvement of the original invention or
discovery which  shall have  been invented  or discovered  by him
subsequent to  the date  of his  patent, he may, like proceedings
being  had   in  all   respects  as   in  the  case  of  original
applications,  and   on  the   payment  of  fifteen  dollars,  as
hereinbefore provided,  have the  same annexed  to  the  original
description and  specification;    and,  the  commissioner  shall
certify,  on   the  margin   of  such   annexed  description  and
specification, the  time of  its being annexed and recorded;  and
the same  shall thereafter  have the  same effect  in law, to all
intents and  purposes, as  though it  had been  embraced  in  the
original description and specification.

   36. And  it is enacted by the act of March 3, 1837, section 5,
that, whenever  a patent  shall be  returned for  correction  and
reissue under  the thirteenth section of the act to which this is
additional, and  the patentee  shall desire several patents to be
issued for  distinct and separate parts of the thing patented, he
shall first pay, in manner and in addition to the sum provided by
that act, the sum of thirty dollars for each additional patent so
to be  issued;   Provided, however,  that no patent made prior to
the  aforesaid   fif-teenth  day  of  December,  1836,  shall  be
corrected and reissued until a duplicate of the model and drawing
of the thing as originally invented, verified by oath as shall be
required by  the commissioner,  shall be  deposited in the patent
office:   Nor shall any addition of an improvement be made to any
patent heretofore granted, nor any new patent to be issued for an
improvement made  in any machine, manufacture, or process, to the
original inventor,  assignee or  possessor, of a patent therefor,
nor any disclaimer be admitted to record, until a duplicate model
and  drawing  of  the  thing  originally  intended,  verified  as
aforesaid, shall have been deposited in the patent office, if the

         Bouvier's Law Dictionary : P1 : Page 52 of 100

commissioner shall  require the  same;   nor shall  any patent be
granted for an invention, improvement, or discovery, the model or
drawing of  which shall  have been  lost, until another model and
drawing, if  required by the commissioner, shall, in like manner,
be deposited in the patent office:

   37. And in all such cases, as well as in those which may arise
under the third section of this act, the question of compensation
for such  models and  drawings, shall  be subject to the judgment
and decision  of the  commissioners provided  for in  the  fourth
section, under  the same  limitations  and  restrictions  as  are
therein prescribed.

       3. Special provisions occasioned by the burning the patent

   38. The  act of  March 3,  1837,  was  passed  to  remedy  the
inconveniences arising  from the burning of the patent office. It
is enacted,

   39. - Sect. 1. That any person who may be in possession of, or
in  any   way  interested   in,  any  patent  for  an  invention,
disocovery, or  improvement, issued prior to the fifteenth day of
December, in  the year  of our Lord one thosand eight hundred and
thirty-six, or  in an  assignment  of  any  patent,  or  interest
therein, executed,  and recorded  prior to the said fifteenth day
of December, may, without charge, on presentation or transmission
thereof to  the commissioner  of patents,  have the same recorded
anew in  the  patent  office,  together  with  the  descriptions,
specifications of  claim and drawings annexed or belonging to the
same;   and it  shall be the duty of the commisioner to cause the
same,  or   any  authenticated   copy  of  the  original  record,
specification, or  drawing which he may obtain, to be transcribed
and copied into books of record to be kept for that purpose;  and
wherever a  drawing was  not originally annexed to the patent and
referred to  in the  specification  and  drawing  produced  as  a
delineation of  the invention,  being verified  by oath  in  such
manner as  the commissioner shall require, may be transmitted and
placed on  file,  or  copied  as  aforesaid,  together  with  the
certificate of  the oath;   or  such drawings  may be made in the
office, under  the direction  of the  commisioner, in  conformity
with  the  specification.  And  it  shall  be  the  duty  of  the
commissioner  to  take  such  measures  as  may  be  advised  and
determined by  the board commissioners provided for by the fourth
section, of  this act, to obtain the patents, specifications, and
copies aforesaid,  for the  purpose of  being so  transcribed and
recorded. And  it shall be the duty of each of the several clerks
of the judicial courts of the United States, to transmit, as soon
as may  be, to the commissioner of the patent office, a statement
of  all   the  authenticated  copies  of  patents,  descriptions,
specifications, and  drawings of  inventions and discoveries made
and executed  prior to  the aforesaid  fifteenth day of December,
which may  be found on the files of his office;  and also to make
out and  transmit to said commissioner for record as aforesaid, a
certified copy  of every such patent, description, specification,
or  drawing,   which  shall   be  specially   required  by   such

         Bouvier's Law Dictionary : P1 : Page 53 of 100

   40. -  Sect. 2.  That copies  of  such  record  and  drawings,
certified by  the commissioner,  or, in his absence, by the chief
clerk, shall  be prima  facie evidence  of the particulars of the
invention and  of the  patent granted  therefore, in any judicial
court of  the United  States, in  all cases  where copies  of the
original record  or specification and drawings would be evidence,
without proof  of the loss of such originals and no patent issued
therefor  by   the  patentee  or  other  person  inprior  to  the
aforesaid, fifteenth  day of December, shall, after the first day
of June  next, be received in evidence in, any of the said courts
in behalf  of the  patentee or  other  person  who  shall  be  in
possession of  the same,  unless it  shall have  been so recorded
anew, and  a drawing  of the  invention,  if  separate  from  the
patent, verified  as, aforesaid,  deposited in the patent office;
nor shall  any written  assignment of  any such  patent, executed
and, recorded  prior to  the said  fifteenth day  of December, be
received in  evidence in  any of the said courts in behalf of the
assignee or  other person  in possession  thereof, until it shall
have been so recorded anew.

    41.  -  Sect.  3.  That  whenever  it  shall  appear  to  the
commissioner that  any patent was destroyed by the burning of the
patent  office   building  on  the  aforesaid  fifteenth  day  of
December, or  was otherwise  lost prior  thereto, it shall be his
duty, on  application terested therein, to issue a new patent for
the same  invention or discovery bearing the date of the original
patent, with  his certificate thereon that it was made and issued
pursuant to  the provisions of the third section of this act, and
shall enter  the same  of record:  Provided, however, That before
such patent shall be issued, the applicant therefor shall deposit
in the  patent office  a duplicate,  as near  as may  be, of  the
original model,  drawings, and description, with specification of
the invention  or  discovery,  verified  by  oath,  as  shall  be
required by the commissioner;  and such patent and copies of such
drawings and descriptions, duly certified, shall be admissible as
evidence in  any judicial  court of  the United States, and shall
protect the rights of the patentee, his administrators, heirs and
assigns, to  the extent  only  in  which  they  would  have  been
protected by the original patent and specification.

  42. The act of August 29, 1842, sect. 2, extends the provisions
of the  last  section  to  patents  granted  prior  to  the  said
fifteenth day  of  December,  though  they  may  have  been  lost
subsequently;   provided, however,  the same  shall not have been
recorded anew under the provisions of said act.

                4. Of the disclaimer.

   43. The  act of March 3, 1837 sect. 7, authorizes any patentee
who shall  have, through inadvertence, accident, or mistake, made
his specification  of claim too broad, claiming more than that of
which he  was the  original or  first inventor, some material and
substantial part of the thing patented being truly and justly his
own,  any  such  patentee,  his  administrators,  executors,  and
assigns, whether  of  the,  whole  or  of  a  sectional  interest

         Bouvier's Law Dictionary : P1 : Page 54 of 100

therein, may  make disclaimer of such parts of the thing patented
as the  disclaimant shall  not claim  to hold  by virtue  of  the
patent or  assignment, stating therein the extent of his interest
in, such  patent;  which disclaimer shall be in writing, attested
by one  or more  witnesses, and recorded in the patent office, on
payment by  the person  disclaiming, in  manner as,  other patent
duties are required by law to be paid, of the sum of ten dollars.
And such  disclaimer shall  thereafter be taken and considered as
part of  the  originals  specification,  to  the  extent  of  the
interest which  shall be possessed in the patent or right secured
thereby, by  the disclaimant,  and by  those claiming by or under
him subsequent  to the  record thereof.  But no  such  disclaimer
shall affect  any action  pending at the time of its being filed,
except so  far as  may relate  to the  question  of  unreasonable
neglect or delay in filing the same.

                5. Assignment of patents.

   44.  By  virtue  of  the  act  of  July  4,  1836,  sect.  11,
every-patent shall  be assignable  in law, either as to the whole
interest, or,  any undivided  part thereof,  by any instrument in
writing;   which assignment,  and also every grant and conveyance
of the  exclusive right under any patent, to make and use, and to
grant to  others to  make and  use, the thing patented within and
throughout any,  specified part  or portion of the United States,
shall be  recorded in  the patent office within three months from
the execution  thereof. This act required the payment of a fee of
three dollars  to be  paid by the assignee, but this provison has
been repealed  by the  act of  March 3,  1839,  s.  8,  and  such
assignments,  grants,  and  conveyances,  shall,  in  future,  be
recorded without  any charge whatever. But, by the act of May 27,
1848, Minot's.  Stat. at  Large, U.  S. 231,  it is enacted, That
hereafter the  commissioner of patents shall require a fee of one
dollar for recording any assignment, grant or conveyance, of the,
whole or  any part of the interest in letters-patent, or power of
attorney, or  license to  make or  use the  things patented, when
such instrument shall not exceed three hundred words;  the sum of
two dollars  when it  shall exceed  three hundred,  and shall not
exceed one  thousand words  and the  sum of three dollars when it
shall exceed  one thousand  words;  which fees shall in all cases
be paid in advance.

                6. The extension of the patent.

  45. The act of July. 4, 1836, sect. 18;  directs, That whenever
any patentee  of  an  invention  or  discovery  shall  desire  an
extension of his patent beyond the term of its limitation, be may
make application therefor, in writing, to the commissioner of the
patent  office,  setting  forth  the  grounds  thereof,  and  the
commissioner shall,  on the  applicant's paying  the sum of forty
dollars  to   the  treasury,  as  in  the  case  of  an  original
application, for  a patent, cause to be published, in one or more
of the  principal newspapers  in the  city of  Washington, and in
such other  paper or  papers as  he may deem proper, published in
the section of country most interested adversely to the extension

         Bouvier's Law Dictionary : P1 : Page 55 of 100

of the  patent, a  notice of such application and of the time and
place when  and where  the same  will be  considered,  that  any,
person may  appear and show cause why the extension should not be
granted. And  the secretary  of state,  the commissioner  of  the
patent  office,   and  the  solicitor  of,  the  treasury,  shall
constitute a  board to hear and decide upon the evidence produced
before them both for and against the extension, and shall sit for
that purpose  at the  time and  place designated in the published
notice thereof.  The patentee  shall  furnish  to  said  board  a
statement, in  writing, under  oath, of the ascertained value of,
the invention, and of his receipts and expenditures, sufficiently
in detail  to exhibit  a true  and faithful  account of  loss and
profit in  any manner  accruing to him from and by reason of said
invention. And  if, upon a hearing of the matter, it shall appear
to the  full and  entire satisfaction  of said  board, having due
regard to the public interest therein, that it is just and proper
that. the  term of the patent should be extended by reason of the
patentee, without  neglect or fault on his part, having failed to
obtain, from  the use  and sale  of his  invention, a  reasonable
remuneration for  the time,  ingenuity and  expense bestowed upon
the same,  and the introduction thereof into use, it shall be the
duty of  the commissioner  to renew  and extend  the  patent,  by
making a  thereon of  such extension, for the term of seven years
from  and  after  the  expiration  of  the  first  term;    which
certificate, with  a certificate  of said board of their judgment
and opinion  as aforesaid,  shall be  entered on  record  in  the
patent office;  and thereupon the said patent shall have the same
effect in  law as  though it  had been originally granted for the
term of  twenty-one years. And the benefit of such, renewal shall
extend to  assignees and  grantees of  the right to use the thing
patented, to  the extent  of their  respective interest  therein:
Provided, however, That no extension of a patent shall be granted
after the  expiration of  the term  for which  it was  originally

                7. Requisites to secure the patent.

   46. The  act of August 29, 1842, section 6, requires, That all
patentees and  and assingees  of patents  hereafter granted,  are
hereby required  to stamp,  engrave, or  cause to  be stamped  or
engraved, on  each article  vended, or offered for sale, the date
of the  patent;   and if  any person  or persons,  patentees,  or
assignees, shall  neglect to  do so,  he, she,  or they, shall be
liable to  the same  penalty, to  be recovered and disposed of in
the manner  specified in the foregoing fifth section of this act.
See 49.

                §7. Duty or tax on patents.

   47. The  tax or  duty on patents is not the same in all cases,
foreigners being required to pay a greater sum than citizens, and
the subjects  of the  king of  Great Britain  a greater  sum than
other foreigners.  The ninth  section of the act of July 4, 1836,
requires, That  before  any  application  for  a  patent  can  be
considered by  the commissioner as aforesaid, the applicant shall
pay into  the treasury  of the  United States, or into the patent
office, or  into any  of the  deposit banks  to the credit of the

         Bouvier's Law Dictionary : P1 : Page 56 of 100

treasury, if  he be  a citizen of the United States, or an alien,
and shall  have been  resident in  the United States for one year
next preceding,  and shall  have made  oath of  his intention  to
become a  citizen thereof,  the sum  of thirty  dollars;    if  a
subject of  the king  of Great  Britain, the  sum of five hundred
dol1ars;  and all other persons the sum of three hundred dollars,
for which payment duplicate receipts shall be taken, one of which
to be  filed in  the office  of the  treasurer.  And  the  moneys
received into  the treasury  under this  act, shall  constitute a
fund for  the payment  of the salaries of the officers and clerks
herein provided for, and all other expenses of the patent office,
and to be called the patent fund.

   48. When  an applicant  withdraws his  application before  the
issuing of  the patent,  he is  entitled to  receive back  twenty
dollars of  the sum  he may  have paid  into the treasury. Act of
July 4,  1836, sect. 7. And the act of March 3, 1837, section 12,
enacts, That  whenever the  application of  any foreigner  for  a
patent shall be rejected and withdrawn for want of novelty in the
invention, pursuant  to the  seventh, section of the act to which
this is  additional, the  certificate thereof of the commissioner
shall be  a sufficient  warrant to  the treasurer  to pay back to
such applicant two-thirds of the duty he shall have paid into the
treasury on account of such application. When money has been paid
by mistake,  as for  foes accruing at the patent office, it must,
by the  direction of  the act  of August  29, 1842, section 1, be

              §8. Penalty for use of patentee's marks.

   49. The  act of  August 29,  1842, s. 5, declares, That if any
person or persons shall paint or print, or mould, cast, carve, or
engrave, or  stamp, upon  any thing  made, used, or sold, by him,
for the  sole making  or selling  which he  hath not or shall not
have obtained  letters-patent, the  name or  any imitation of the
namer of  any other  person  who  hath  or  shall  have  obtained
letters-patent for  the sole  making and  vending of  such thing,
without  consent  of  such  patentee  or  his  assigns  or  legal
representatives;   or if  any person,  upon any  such  thing  not
having been  purchased from  the patentee,  or  some  person  who
purchased it  from or  under such  patentee, or  not  having  the
license or  consent of  such patentee,  or his  assigns or  legal
representatives, shall write paint, print, mould, carve, engrave,
stamp, or otherwise make or affix the word "patent," or the words
"letters-patent," or the word "patentee," or any word or words of
like kind,  meaning, or  import,  with  the  view  or  intent  of
imitating or  counterfeiting the  stamp, mark, or other device of
the patentee,  or shall  affix the  same or  any word,  stamp, or
device, of  like import,  on  any  unpatented  article,  for  the
purpose of  deceiving the public, he, she, or they, so offending,
shall be  liable for  such offence, to a penalty of not less than
one hundred dollars, with costs, to be recovered by action in any
of the  circuit courts  of the  United States,  or in  any of the
district courts  of the  United States,  having  the  powers  and
jurisdiction of  a circuit  court;  one-half of which penalty, as
recovered, shall  be paid  to the patent fund, and the other half
to any person or persons who shall sue for the same.

         Bouvier's Law Dictionary : P1 : Page 57 of 100

           §9. Courts having jurisdiction in patent cases.

   50. It  is enacted  by the  17th section of the act of July 4,
1836, That  all actions,  suits, controversies, and cases arising
under any  law of  the United  States, granting  or confirming to
inventors  the   exclusive  right   to   their   inventions   or.
discoveries, shall be originally cognizable, as well in equity as
at law,  by the  circuit courts  of the  United  States,  or  any
district court  having the  powers and  jurisdiction of a circuit
court which courts shall have power, upon bill in equity filed by
any party  aggrieved, in  any such  case, to  grant  injunctions,
according to  the course  and principles  of courts of equity, to
prevent the violation of the rights of any inventor as secured to
him by  any law of the United States on such terms and conditions
as said courts may deem reasonable:  Provided, however, That from
all judgments  and decrees, from. any, such court rendered in the
premises, a  writ of  error or  appeal, as  the case may require,
shall lie  to the supreme court of the United States, in the same
manner and under the same circumstances as is now Provided by law
in other  judgments and  decree, of  circuit courts,  and in  all
other case's  in which  the court  shall deem,  it reasonable  to
allow the same.

           §10. Actions for violation of patent rights.

   51. The  act of  July 4,  1836,  section  14,  provides,  That
whenever in  any action for damages for making, using, or selling
the thing  whereof the  exclusive right  is secured by any patent
heretofore granted,  or by  any patent  which  may  hereafter  be
granted, a  verdict shall  be rendered  for the plaintiff in such
action, it  shall be in the power of the court to render judgment
for any  sum above the amount found by such verdict as the actual
damages sustained by the plaintiff, not exceeding three times the
amount thereof,  according to the circumstances of the case, with
costs;   and such damages may be recovered by action on the case,
in any court of competent jurisdiction, to be brought in the name
or  names  of  the  person  or  persons  interested,  whether  as
patentee, assignees, or as grantees of the exclusive right within
and throughout a specified part of the United States.

   52. - Sect. 15. That the defendant in any such action shall be
permitted to  plead the  general issue, and to give this act, and
any special  matter in  evidence, of  which notice in writing may
have been  given to  the plaintiff  or his  attorney, thiry  days
before  trial,   tending  to   prove  that  the  description  and
specification filed by plaintiff does not contain the whole truth
relative to  his invention or discovery, or that it contains more
than is  necessary  to  produce  the  described  effect;    which
concealment or addition shall fully appear to have, been made for
the purpose  of deceiving  the public,  or that  the patentee was
not, the  original and  first inventor or discoverer of the thing
patented, or  of a  substantial and miaterial art thereof claimed
as new,  or that  it had  teen  described  in  some  public  work
anterior to  the supposed  discovery thereof  by the patentee, or
had been in public use, or on sale with the consent and allowance

         Bouvier's Law Dictionary : P1 : Page 58 of 100

of the  patentee before his application for a patent, or that, he
had surreptitiously  or unjustly  obtained the  patent  for  that
which was  in fact  invented or  discovered by  another, who  was
using reasonable  diligence in  adapting and perfecting the same;
or, that  the patentee  if an  alien at  the time  the patent was
grauted, had  failed and  neglected for  the  space  of  eighteen
months from  the date  of the patent, to put and continue on sale
to the  public, on  reasonable terms,  the invention or discovery
for which  the patent  issued;  in either of which cases judgment
shall be rendered for the defendant, with costs. And whenever the
defendant relies  in his  defence  on  the  fact  of  a  previous
invention, knowledge,  or use  of the  thing patented,  be  shall
state, in  his notice  of special matter, the names and places of
residence of  those whom  he intends to prove to have possessed a
prior knowledge  of the  thing and  where the same had been used:
Provided, however,  that whenever  it shall satisfactorily appear
that the  patentee, at the time of making his application for the
patent, believed  himself to  be the first inventor or discoverer
of the  thing patented  the same  shall not be held to be void on
account of  the invention or discovery or any part thereof having
been before  known  or  used  in  any  foreign  country,  it  not
appearing that  the same  or any  substantial part  thereof,  had
before been patented or described in any printed publication. And
provided, also, that whenever the plaintiff shall fail to sustain
his action  on the  ground that  in his specification of claim is
embraced more than that of which he was the first inventor, if it
shall appear  that the defendant had used or violated any part of
the invention  justly and  truly specified and claimed as new, it
shall be  in the  power of  the court  to adjudge and award as to
costs as may appear to be just and equitable.

   53. This last section has been modified by the act of March 3,
1837, which  enacts as  follows:  Section 9, That anything in the
fifteenth section  of the  act to which this is additional to the
contrary notwithstanding  That, whenever by mistake, accident, or
inadvertence, and without any wilful default or intent to defraud
or  mislead   the  public,   any  patentee   shall  have  in  his
specification claimed  to be  the original  and first inventor or
discoverer of  any material  or substantial  part  of  the  thing
patented, of  which he  was not  the first and original inventor,
and shall  have no legal or just right to claim the same in every
such, case  the patent shall be deemed good and valid for so much
of the invention or discovery as shall be truly and bona fide his
own:   Provided, it  shall be  a material and substantial part of
the thing  patented, and  be definitely  distinguishable from the
other parts so claimed without right as aforesaid. And every such
patentee, his  executors, administrators  and assigns, whether of
the whole  or of  a sectional interest therein, shall be entitled
to maintain  a suit  at law  or in  equity on such patent for any
infringement of such part of the invention or, discovery as shall
be  bona   fide  his   own  as   aforesaid,  notwithstanding  the
specification may embrace more than he shall have any legal right
to claim.  But, in every such case in which a judgment or verdict
shall be  rendered for  the plaintiff he shall not be entitled to
recover costs against the defendant, unless he shall have entered
at the  patent office,  prior to  the commencement of the suit, a
disclaimer of  all that  part of the thing patented which were so

         Bouvier's Law Dictionary : P1 : Page 59 of 100

claimed  without  right:    Provided,  however,  That  no  person
bringing any  such suit  shall be entitled to the benefits of the
provisions contained in this section, who shall have unreasonably
neglected or  delayed to  enter at the patent office a disclaimer
as aforesaid. See Bac. Ab. Monopoly Id. Prerogative, F 4;  Phill.
on Pat.;   Fessend.  on Pat.;   Carpm.  on Pat.;   Hand  on Pat.;
Webst. on  Pat;   Coll. on  Pat.;  Gods. on Pat.;  Holr. on Pat.;
Smith on  Pat.;   Drewry's Patent  Law Abandonment  Act;  Davies'
Collection of  Cases on the Law of Patents;  Rankin's Analysis of
the Law  of Patents.  Among the  French writers  are Perpigna  on
Patents;   written in  English';   and the  Manuel  of  the  same
author, in  French;   and the  works of Renouard, Dalloz, Molard,
and Regnault.  See the  various Digests  h. t.  and  particularly
Peters' Digest, h. t.

   PATENT FRENCH.  The following points in relation to the patent
laws of  France will  be found  useful to those who have invented
valuable machinery,  and who  are desirous of availing themselves
of the patent laws of that country:  -

   27 -  §1. To  whom patents are granted. All persons may obtain
patents in this country, whether they are men or women, adults or
infants, Frenchmen  or foreigners, and in general all persons who
fulfil the  conditions required  by the  law in  order to  obtain

   3. It  is not  requisite that the applicant should be present,
but the application must be made in his name.

   4. -  §2. The  different kinds  of patents.  There  are  three
principal kinds  of patents.  1. Patents for inventions, (brevets
d'  invention.)   2.  Patents   for  improvements,   (brevets  de
perfectionnement.)  3.   Patents  for   importa  tions,  (brevets
d'importations.) But as patents may be taken for a combination of
the above,  there may be added, by such combination, four others,
namely;   5. Patents  for invention  and  improvements,  (brevets
d'invention et  de perfectionnemen  t.) 6.  Patents for invention
and  importation,  (brevets  d'invention  et  d'importation.)  7.
Patents for  importation and  improvement, (brevets d'importation
et de  perfectionnement.) 8.  Patents for  importation, invention
and improvement  (brevets d'invention,  et perfectionnement et d'

   5. The  forms prescribed  to obtain  these  several  kinds  of
patents are  exactly, the  same, the  only difference consists in
the declaration  of the  applicant, which  must be  in conformity
with the kind of patent he desires to obtain.

   6. The  applicant himself  has the  right to fix the number of
years for,  which he desires to have his patent, when he applies,
to have his request registered at the prefecture. He may ha ve it
for five,  ten, or fifteen years. And this period he has a  right
to change  until the  patent has  been signed. But with regard to
patents for  importations, the  duration  of  the  patent  cannot
extend beyond  the period  for which  there is  a patent  in  the
country, from which the importation has been made.

         Bouvier's Law Dictionary : P1 : Page 60 of 100

   7. Patents,  other than for importation, may be extended as to
time. There  are two  species of prolongation;  the first, within
fifteen years;  the second, beyond fifteen years.

   8. - §3. Cost of patents. The tax, as it is called, which must
be paid  in order  to obtain  a patent,  varies according  to the
duration of  the patent.  This tax  may be  paid in  cash  or  by
instalments. When  paid in  cash, it is as follows:  1. For, five
years, 300  francs, about  56 dollars  and 40  cents. 2.  For ten
years, 800  francs, about  94 dollars. 3. For fifteen years, 1500
francs,  about  282  dollars;    besides  some  office  expenses,
amounting to from ten to fifteen dollars.

   9. - §4. Foreign patents. The patentee in France cannot obtain
a patent  in a  foreign country,  without losing  his  rights  in
France;   but this  provision is  easily eluded by anotber person
taking out  the patent  in the  foreign country, when patents for
importations are  granted. Perpigna,  Manuel des Inventeurs, &o.,
c. 3, 5, p. 90.

Great Britain  and Ireland will be briefly considered by taking a
view of  the persons  to whom  patents  will  be  granted;    the
different kinds of patents;  the time for which they are granted;
and the expenses attending them.

   2. -  §1. To  whom patents  are granted.  Both foreigners  and
subjects  may   obtain  letters-patent;    but  inasmuch  as  the
applicant must  accompany his  petition  by  a  declaration  made
before a  master  in  chancery,  or  a  master  extraordinary  in
chancery, that  he has  made such  an invention;   that he is the
true and  first inventor  thereof;   or that  it is  new  in  the
kingdom, according  to the special circumstances of the case, the
applicant must be present in Great Britain.

  3. - §2 The different kinds of patents. This will be considered
by taking a view, first, of the object of a patent, and secondly,
the territory over which a patent extends.

  4. - 1. The thing patented must be, 1. A discovery or invention
made by  the applicant  himself, in  the United  Kingdom. 2.  The
introduction or  importation of an invention known abroad, and in
this case,  the introducer is the true and first inventor, within
the realm.  3. Though not absolutely the true and first inventor,
by reason  of some  one else  having made  the same invention and
kept it  secret, yet  the invention must have been made public by
the applicant,  and as the first publisher, the applicant will be
entitled to  letters-patent. Novelty  and utility  are  essential
conditions of  the grant, but it is of no consequence whether the
discovery was  known or  not, in  a country foreign to the United
Kingdom. Webst.  on Pat.  11 and  70, note  w. A  recent  act  of
parliament, passed July 1, 1852, (15 & 16 Viet. cap. 83,) amended
the English  patent' system in several important particulars. The
cardinal features  of the new system are:  1, protection from the
day of  the application 2, one patent for the United Kingdom;  3,
moderate cost and periodical paywent;  4, printing and publishing
of specifications;   5, one office of patents and specifications.

         Bouvier's Law Dictionary : P1 : Page 61 of 100

Webster's New  Patent Law,  p. 41.  By the 18th sec. of said act,
letters patent  are sealed  with the  great seal  of  the  United
Kingdom, and  extend to  the whole of the United Kingdom of Great
Britain and  Ireland, the  Channel Islands,  and the Isle of man;
also, to  the colonies  or plantations,  or such  of them  as the
applicant may  designate in  his petition  for the letters patent
and the law officer of the crown shall insert, in his warrant for
the seal  ing of  the patent. The patent may bear date as of the,
day of the application, or of the sealing, or of any intermediate
day. The patent is granted for fourteen years, subject however to
the condition  that it  shall be  void at the expiration of three
years and  of seven  years respectively  from the  date  thereof,
unless before  the expiration  of the  said three years and seven
years, stamps  of the  value of  X50 and  X100  respectively,  be
affixed to  the letters  patent. The  cost of  obtaining  letters
patent is, in the first instance, X20 if the patent is unopposed;
if opposed, there are additional fees amounting to nearly X5.

   By sec.  26, letters patent obtained in the United Kingdom for
patented foreign  inventions are  not to  continue in force after
the expiration of the foreign patent.

   PATENT, PRUSSIAN.  This subject will be considered by taking a
view of  the persons  who may  obtain patents;  the nature of the
patent;  and the duration of the right.

   2. -  §1, Of  the persons  who may  obtain  patents.  Prussian
citizens or  subjects are  alone entitled to a patent. Foreigners
can not obtain one.

   3. - §2. Nature of the patents. Patents are granted in Prussia
for an  invention when  the thing has been discovered or invented
by  the   applicant.  For   an  improvement,   when  considerable
improvement has  been made  to a  thing  before  known.  And  for
importation, when  the thing  has been  brought  from  a  foreign
country and  put in  use in  the kingdom. Patents may extend over
the whole country or only over a particular part.

   4. -  §3. Duration of patents. The patent may at the choice of
the applicant,  be for  any period  not less  than six months nor
more than fifteen years.

  PATENT, ROMAN. The Roman patents will be considered by taking a
view of  the persons  to whom they may be granted;  the different
kinds of  patents;  the cost of a patent;  and the obligations of
the patentee.

   2. -  §1. To whom patents are granted. Every person, whether a
citizen of  the estates  of the  pope or foreigner, man or woman,
adult or  infant, may  obtain a  patent for  an invention, for an
improvement, or  for importation,  by fulfilling  the  conditions
prescribed in order to obtain a grant of such titles. Persons who
have received a patent from the Roman government may, afterwards,
without any  compromise of  their rights or privileges, receive a
patent in a foregn country.

   3. The  different kinds of patents. In the Roman estates there

         Bouvier's Law Dictionary : P1 : Page 62 of 100

are granted  patents for  invention, for  improvements,  and  for

  4. - 1st. Patents for inventions are granted for, 1. A new kind
of important culture. 2. A new and useful art, before unknown. 3.
A new and useful process

 of  culture or of manufacture. 4. A new natural production. 5. A
new application of a means already, known.

  5. - 2d. Patents for improvements may be granted for any useful
improvement made  to inventions  already known  and used  in  the
Roman states.

   6. -  3d, Patents  for importations  are granted in two cases,
namely:   1. For  the introduction of inventions already patented
in a  foreign country,  and the  privilege of  which  patent  yet
continues. 2.  For the  introduction of  an invention  known  and
freely used  in a  foreign country,  but not yet used or known in
the Roman states.

   7. -  3. Cost  of a patent. The cost of a patent is fixed at a
certain sum  per annum,  without regard to the length of time for
which it  may have been granted. It varies in relation to patents
for inventions  and importation. It is ten Roman crowns per annum
for a patent for invention and improvement, and of fifteen crowns
a year for a patent for importation.

   8. -  §4. Obligation  of the patentee. He is required to bring
into uue  his invention  within one  year after  the grant of the
patent, and  not to  suspend the supply for the space of one year
during the time the privilege shall last.

   9. He is required to pay one balf of the tax or expense of his
patent on  receiving his  patent, and  the other  half during the
first month of the second portion of its, duration.

   PATENT-OFFICE. An  office bearing this name was established by
law, and  by the  act Of  congress of July 4, 1836, which repeals
all acts  theretofore passed  in relation  to patents,  4 Sharsw.
cont. of  Story's L.  U. S.  2504, it is provided, §1. That there
shall be  established and attached to the department of state, an
office to be denominated the patent office;  the chief officer of
which  shall  be  called  the  commissioner  of  patents,  to  be
appointed by the president, by and with the advice and consent of
the senate,  whose duty  it shall  be, under the direction of the
secretary of  state, to  superintend, execute,  and perform,  all
such acts  and things  touching and  respecting the  granting and
issuing of  patents for  new and  useful discoveries, inventions,
and improvements,  as are herein provided for, or shall hereafter
be, by law, directed to be done and performed, and shall have the
charge and  custody of  all the  books, records,  papers, models,
machines, and all other things belonging to said office. And said
commissioner, shall  receive the  same compensation as is allowed
by law to the commissioner of the Indian department, and shall be
entitled to  send and  receive  letters  and  packages  by  mail,
relating to the businesss of the office, free of postage.

         Bouvier's Law Dictionary : P1 : Page 63 of 100

   2. -  §2. That  there shall  be in  said office,  an  inferior
officer, to  be appointed by the said principal officer, with the
approval of  the secretary  of state, to receive an annual salary
of seventeen hundred dollars, and to be called the chief clerk of
the patent-office;  who in all cases during the necessary absence
of, the  commissioner, or  when the  said 'principal office shall
become vacant, shall have the charge and custody of the seal, and
of the  records, books,  papers, machines,  models, and all other
things belonging to the said office, and shall perform the duties
of commissioner  during such  vacancy. And the, said commissioner
may also,  with like  approval, Appoint an examining Clerk, at an
annual salary  of fifteen  hundred dollars;   two other clerks at
twelve hundred  dollars each,  one of  whom shall  be a competent
draughtsman;   one other  clerk  at  one  thousand  dollars;    a
machinist at  twelve hundred  and fifty dollars;  and a messenger
at seven  hundred dollars.  And said  commissioner,  clerks,  and
every other  person appointed  and employed in said office, shall
be disqualified, and interdicted from acquiring or taking, except
by inheritance,  daring the,  period for  which they  shall  hold
their appointments, respectively, any right or interest, directly
or indirectly,  in any patent for an invention or discovery which
has been, or may hereafter be granted.

   3. -  §3. That  the said  principal officer,  and every  other
person to  be appointed  in the  said office,  shall,  before  he
enters upon the duties of his office or appointment, make oath or
affirmation, truly  and faithfully to execute the trust committed
to him. And the said commissioner and the chief clerk shall also,
before entering  upon their  duties,  severally  give  bond  with
sureties to the treasurer of the United States, the former in the
sum of  ten thousand  dollars, and the latter, in the sum of five
thousand dollars,  with condition  to render  a true and faithful
account to  him or  his successor  in office,  quarterly  of  all
moneys which shall be by them respectively received for duties on
patents, and  for copies  of records, and drawings, and all other
moneys received by virtue of said office.

   4. -  §4. That  the said commissioner shall cause a seal to be
made and  provided for  the said  office, with such device as the
president of  the United  States shall approve, and copies of any
records, books,  papers,  or  drawings,  belonging  to  the  said
office, under the signature of the said commissioner, or when the
office shall  be vacant,  under the signature of the chief clerk,
with the  said seal  affixed, shall be competent evidence in all,
cases in  which the  original records, books, papers, or drawing,
could be  evidence. And  any person  making application therefor,
may have  certified copies  of the  records, drawings,  and other
papers deposited  in said  office, on  paying,  for  the  written
copies, the  sum of  ten cents  for, every  page of  one  hundred
words;   and for  copies of  drawing, the  reasonable expense  of
making the same.

   PATENTEE. He  to whom  a patent  has been granted. The term is
usually applied  to one who has obtained letters-patent for a new

         Bouvier's Law Dictionary : P1 : Page 64 of 100

   2. His  rights are,  1. To  make, sell  and enjoy the profits,
during  the  existence,  of  his  rights,  of  the  invention  or
discovery patented. 2. To recover damages for a violation of such
rights. 3.  To have  an injunction to prevent any infringement of
such rights.

   3. His duties are to supply the public, upon reasonable terms,
with the thing patented.

  PATER. Father. A term used in making genealogical tables.

   PATER  FAMILLIAS,  civil  law.  One  who  was  sui  juris  and
consequently was  not either under parental power, nor under that
of a  master;   a child in his cradle, therefore, could have been
pater familias,  if he  had neither  a master  nor a father. Lec.
Elem. §127, 128.

   PATERNA PATERNIS. This expression is used in the French law to
signify that in a succession, the property coming from the father
of the deceased, descends to his paternal relations.

   PATERNAL. That  which belongs to the father or comes from him:
as, paternal  power, paternal relation, paternal estate, paternal
line. Vide Line.

   PATERNAL  POWER.  Patria  potestas,  The,  authority  lawfully
exercised by  parents, over  their children. It will be proper to
consider, 1.  Who are entitled to exercise this power. 2. Who are
subject to it. 3. The extent of this power.

   2. -  1. As a general rule the father is entitled to exert the
paternal power  over his  children. But for certain reasons, when
the father  acts improperly,  and against  the interest  of those
over whom  nature and  the law have given him authority, he loses
his power  over them.  It being  a rule that whenever the good of
the child requires it, the courts will deliver the custody of the
children to others than the father. And numerous instances may be
found where,  for good  reasons, the custody will be given to the

   3. The father of a bastard child has no control over him;  the
mother has  the right to the custody and control of such child. 2
Mass. 109;  12 Mass. 887.

  4. - 2. All persous are subject to this power until they arrive
at the full age of twenty-one years. A father may, however, to, a
certain extent, deprive himself of this unlimited paternal power,
first, by  delegating it  to others,  as when he binds his son an
apprentice;   and, secondly,  when he  abandons his children, and
permits them  to act  for themselves. 2 Verm. Cas. 290;  2 Watts,
408 4 S. & R. 207;  4 Mass. 675.

   5. - 3. The principle upon which the law is, founded as to the
extent of  paternal power  is, that it be exerted for the benefit
of the  child. The child is subject to the lawful commands of the
father to  attend to  his business, because by being so subjected
he acquires  that discipline  and the  practice of  attending  to

         Bouvier's Law Dictionary : P1 : Page 65 of 100

business, which will be useful to him in after life. He is liable
to proper  correction for  the same  reason.  1  Bouv.  Inst.  n.
326-33. See Correction;  Father;  Mother;  Parent.

  PATERNAL PROPERTY. That which descends or comes from the father
and other  ascendants, or  collaterals  of  the  paternal  stock.
Domat. Liv. Prel. tit, 3, s. 2.

  PATERNITY, The state or condition of a father.

   2. The hushand is prima facie presumed to be the father of his
wife's chhildren,  born during  coverture, or  within a competent
time afterwards  pater is  est quem  nuptim demonstrant.  7 N. S.
553.  But   this  presumption   may  be   rebutted   by   showing
circumstances which  render it impossible that the hushand can be
the father.  6 Binn.  283;  1 Browne's R. Appx. xlvii.;  Hardin's
R. 479;  8 East, R. 193;  Stra. 51, 940. 4 T. R;  356;. 2 M. & K.
349;   3 Paige's  R. 139;  I Sim. & Stu. 150;  Turn. & Russ. 138;
1 Bouv. Inst. n. 302, et seq.

   3. The  declarations of  both or  one of the spouses, however,
cannot affect  the condition of a child born during the marriage.
7 N.  S. 553;   3  Paige's  R.  139.  Vide  Bastard;.  Bastardy;,
Legitimacy;  Maternity;  Pregnancy.

   PATHOLOGY, med.  jur. The  science or doctrine of diseases. In
cases of  homicides, abortions,  and the  like, it  is  of  great
consequence to  the legal  practitioner to be acquainted, in some
degree, with pathology. 2 Chit. Pr. 42, note.

   PATRIA. The country;  the men of the neighborhood competent to
serve on  a jury;   a  jury. This  word is nearly synonymous with
pais. (.q. v.)

   PATRIA POTESTAS,  Civil law.  Paternal power;    (q.  v.)  the
authority which  is lawfully  exercised by  the father  over  his

  PATRICIDE. One guilty of killing his father.

   PATRIMONIAL. A  thing, which  comes from  the father,  and  by
extension, from the mother or other ancestor.

   PATRIMONIUM, civil  law.  That  which  is  capable,  of  being

   2. Things  capable of  being  possessed  by  a  single  person
exclusively of  all others,  are, in the Roman or civil law, said
to be  in patrimonio;   when incapable of being so possessed they
are extra-patrimonium.

   3. In  general, things  may be  inherited, but  there are some
which are  said to  be extra  patrimonium, or  which are  not  in
commerce. These  are such  as are common, as the light of heaven,
the air,  the sea,  and  the  like.  Things  public,  as  rivers,
harbors, roads,  creeks, ports,  arms of the sea, the, sea-shore,
highways, bridges,  and the  like. Things  which belong to cities

         Bouvier's Law Dictionary : P1 : Page 66 of 100

and municipal  corporations, as  public-squares, streets,  market
houses, and the like. See, 1 Bouv. Inst. n. 421 to 446.

   PATRIMONY. Patrimony is sometimes understood to mean all kinds
of property  but its  more limited  signification , includes only
such estate,  as has  descended in the same family and in a still
more confined  sense, it is only that which has descended or been
devised in  a direct line from the father, and by extension, from
the mother, or other ancestor.

   2 . By patrimony, patrimonium, is also understood the father's
duty to take care of his children. Sw. pt. 3, §18, n. 31, p. 235.

  PATRINUS. A godfather.

   PATRON, eccles. law. He who has the disposition and gift of an
ecclesiastical benefice. In the Roman law it signified the former
master of a freedman. Dig. 2, 4, 8, 1.

  PATRONAGE. The right of appointing to office;  as the patronage
of the  president of  the United  States, if abused, may endanger
the liberties of the people.

   2. In  the ecclesiastical  law,  it  signifies  the  right  of
presentation to  a church  or ecclesiastical benefice. 2 Bl. Com.

   PATRONUS, Roman civil law. This word is a modification of the,
Latin word  pater, father;   a denomination applied by Romulus to
the first,  senators of  Rome, and  which they  always afterwards
bore. Romulus  at first  appointed a hundred of them. Seven years
afterwards, in  consequence of  the association  of Tatius to the
Romans, a  hundred more  were appointed, chosen from the Sabines.
Tarquinius Priscus  increased the  number to three hundred. Those
appointed by  Romulus  and  Tatius  were  called  patres  majorum
gentium and  the others were called patres minorum gentium. These
and their descendants constituted, the nobility of Rome. The rest
of the people were called lebeians, every one of whom was obliged
to choose  one of  these fathers as his patron. The relation thus
constituted involved  important consequences.  The plebeian,  who
was called (cliens) a client, was obliged to furnish the means of
maintenance to  his chosen  patron;  to firnish a portion for his
patron's daughters;   to  ransom him and his sons, if captured by
an enemy,  and pay all sums recovered against him by judgment, of
the 'courts. The patron, on the other hand, was, obliged to watch
over the  interests of  his client,  whether present or absent to
protect his  person and property, and especially to defend him in
all, actions  brought against  him for  any cause.  Neither could
accuse or  bear testimony  against the  other, or  give  contrary
votes, &c.  The contract  was of a sacred nature,;  the violation
of it was a sort of treason, and punishable as such. According to
Cicero, (De  Repub. II. 9,) this relation formed an integral part
of the  governmental system,  Et  habutit  plebem  in  clientelas
principum descri  ptum, which  he affirms  was eminently  useful.
Blackstone traces  the  system  of  vassalage  to  this.  ancient
relation of  patron and  client. It  was, in  fact, of  the  same
nature as the feudal institutions of the middle ages, designed to

         Bouvier's Law Dictionary : P1 : Page 67 of 100

maintain order in a rising state by a combination of the opposing
interests of  the aristocracy  and of the common people, upon the
principle of  reciprocal bonds  for mutual  interests,  Dumazeau,
Barreau Romain,  §III. Ultimately, by force of radical changes in
the institution,  the word  patronus came to signify notbing more
than an advocate. Id. IV

   PATRUELIS, civil  law. A  cousin german  by the father's side;
the son or daughter of a father's brother. Dig. 38i 10, 1.

   PATRUUS, citq  law. An  uncle by the father's side, a father's
brother. Dig.  38, 10,  10, Patruus  magnus, is  a  grandfather's
brother, grand  uncle. Patruus  major, is  a  great-grandfather's
brother. Patruus  maximus,  is  a,  great-grandfather's  father's

 PAUPER.  One so  poor that  he must  be supported  at the public

 2.  The statutes of the several states make ample provisions for
the support  of the  poor. It is not within the plan of this work
even to  give an  abstract of such extensive legislation. Vide 16
Vin. Ab. 259;Botts on thc Poor Laws;  Woodf. Landl. & Ten. 901.

   PAVIAGE. Contribution  or  tax.  for  paving  the  streets  or

  PAWN. A pledge. Vide Pledge.

   PAWN-BROKER. One who is lawfully authorized to lend money, and
actually lends it, usually in small sums, upon pawn or pledge.

  PAWNEE. He who receives a pawn or pledge.

   2. The  rights  of  the  pawnee  are  to  have  the  exclusive
possession of  the pawn;  to use it, when it is for the advantage
of the  pawner, but,  in such case, when he makes a profit out of
it, he must account for the same. 1 Car. Law Rep. 8 7;  2 Murph.

 3.  The pawnee  is bound to take reasonable care, of the pledge,
and to  return it  to the,  pawnor, when  the obligation  of  the
latter has been performed.

   4. The  pawnee has  two remedies  to enforce  his claim;   the
first, to  sell the  pawn, after  having given  due notice;  and,
secondly, by action. See. 1 Bouv. Inst. n. 1046, 1050.

 PAWNOR.  One who,  being liable  to an  engagement, gives to the
person to whom he is liable, a thing to be held as a security for
the payment of his debt or the fulfilment of his liability.

 2.  The rights  of the  pawnor are  to redeem the pledge, at any
time before it is sold.

 3.  His oblioations  are to warrant the title of the pledge, and
to redeem it at the time agreed upon. See 1 Bouv. lnst. n. 1045.

         Bouvier's Law Dictionary : P1 : Page 68 of 100

   PAYEE. The  person in  whose favor  a bill of exchange is made
payable. Vide Bills of Exchange.

   PAYMENT, contracts.  That which  is given  to execute what has
been promised;   or  it is  the fulfilment  of a promise. Solvere
dicimus cum quis fecit, quod facere promisit.  But though this is
the  general   acceptation  of   the  word,  yet  by  payment  is
understood, every way by which the creditor is satisfied or ought
to be,  and the  debtor, liberated  for example,  an  accord  and
satisfaction will  operate as  a payment.  If I  owe you a sum of
money, for  the security  of which  I give  you a  mortgage,  and
afterwards you  consent to  receive in  payment a  tract of land,
from the  moment the sale is complete, the first obligation, with
all  its   accessories,  is   extinct,  although  you  should  be
afterwards evicted  of the property sold. 7 Toull. n. 46 2  Mart.
Lo. Rep. N. S. 144;  S. C. 2 Harr. Cond. Lo. R. 621, 624.

  2. This subject will be considered by taking a separate view of
the person  by whom  the payment  may be made;  to whom it may be
made;   when and  where it  ought to be made;  how it ought to be
made;  the effect of the payment.

   3. -  1. The  payment may be made by the real debtor and other
persons from  whom the  creditor has  a right  to demand  it;  an
agent may  make payment  for his  principal;   and  any  mode  of
payment by  the agent,  accepted and  received  as  such  by  the
creditor,  as  an  absolate  payment  will  have  the  effect  to
discharge the principal, whether known or unknown, and whether it
be in  the usual  course of  business or  not. If, for example, a
factor or  other agent  should be  employed to purchase goods for
his principal,  or should be entrusted, with money to be paid for
him, and,  instead of receiving the money, the creditor or seller
should take the note of the factor or agent;  payable at a future
day, as  an absolute  payment, the  principal would be discharged
from the debt. 3 Chit. Com. Law, 204;  1 B. & Ald. 14;  6 B. & C.
160;    7  B.  &  C.  17.  When  such  note  has  been,  received
conditionally and  not as  an absolute payment, it would not have
the effect  of a  payment by  the  principal;    and  whether  so
received or  not is a fact to be decided by the jury. 1 Cowen, R,
259, 383;   9  John. R:,  310;  6 Cowen, R. 181;  7 John. R. 311;
15 John.  R. 276;   3  Wend. R. 83;  6 Wend. R. 475;  10 Wcnd. R.
271;  5 John., R. 68;  1 Liverm. Ag. 207.

  4. Payment may also be made by a third person a stranger to the

   5. In  the payment  of mortgages,  it is  a 20rule,  that  the
personal estate  shall be  applied to discharge them when made by
the testator  or intestate  himself, to  secure the  payment of a
debt due by bim, because the personal estate was benefited by the
money borrowed;  and it makes no difference whether the mortgaged
lands have  been devised,  or come  to the  heir  by  descent.  2
Cruise, 1  Dig.  147.  The  testator  may,  however,  exempt  the
personal estate from the payment,  and substitute the real in its
place. But  when the  mortgage was not given by the deceased, but
be acquired the real estate subject to it, it never was his debt,
and therefore  his personal  estate  is  not  bound  to  pay  the

         Bouvier's Law Dictionary : P1 : Page 69 of 100

mortgage debt,  but it must be paid by the real estate. 2 Cruise,
Dig. 164-8;   3 John. Chan. R. 252;  2 P. Wms. 664, n. 1;  2 Bro.
C. C.  57;   2 Bro.  C. C. 101, 152;  5 Ves. jr. R. 534;  14 Ves.

   6. -  2. It  must be  made by  the creditor  himself,  or  his
assigns, if  known, or  some person  authorized  by  him,  either
expressly or  by implication;   as to his factor;  Cowp. 251:  to
his broker,  1 Maul.  & Selw.  576;  4 Id. 566;  4 Taunt. 242;  1
Stark. Ca. 238.

   7. In the case of partners and other joint creditors, or joint
execuutors or administrators, payment to one is generally a valid
payment. When  an infant  is a  creditor, payment must be made to
his guardian. A payment may be good when made to a person who had
no authority  to receive  it, if  the creditor  shall  afterwards
ratify it. Poth. Obl. n. 528.

  8. - 3. Time and place of payment:  first, as to the time. When
the contract  is, that payment shall be made at a future time, it
is clear that nothing can be demanded until after it has elapsed,
or until any other condition to which the payment is subject, has
been fulfilled;   and  in a case where the goods had been sold at
six or  nine months,  the debtor  had the  option as to those two
terms. 5  Taunt, 338. When no time of payment is mentioned in the
agreement, the money is payable immediately. 1 Pet. 455;  4 Rand.

   9. Secondly, the payment must be made at the place agreed upon
in the  contract;   but in the absence of such agreement, it must
be made  agreeably to  the presumed  intention  of  the  parties,
which, among  other things,  may be  ascertained by the nature of
the thing  to be  paid or  delivered, or  by the  custom in  such

   10. -  4. How  the payment  ought to  be made. To make a valid
payment, so  as to  compel the  receiver to  take it,  the  whole
amount due  must be  paid;   Poth. Obl. n. 499, or n. 534, French
edition;  when a part is accepted, it is a payment pro tanto. The
payment must be made in the thing agreed upon;  but when it ought
to be  made in  money, it  must be made in the lawful coin of the
country, or  in bank  notes which  are  of  the  value  they  are
represented to  be. A payment made in bills of an insolvent bank,
though both  parties may  be ignorant  of its  insolvency, it has
been held,  did not  discharge the  debt;  11 Verm. 676;  6 Hill,
340;   but see  1 W.  & S.  92;   8 Yerg.  175;  and a payment in
counterfeit bank notes is a nullity. 2 Hawks, 326;  3 Hawks, 568,
6 Hill,  840. Iii general, the payment of a part of a debt, after
it becomes  due, will not discharge the whole, although there may
be an  agreement by  the debtor  that it should have that effect,
because there  is no  consideration for such agreement. But see 3
Kelly's R.  210, contra.  A payment  of a part, before it is due,
will discharge the whole, when so agreed.

  11. - 5. The payment, when properly made, discharges the debtor
from his  obligation. Sometimes  a payment  extinguishes  several
obligations;   this happens  when the thing given to discharge an

         Bouvier's Law Dictionary : P1 : Page 70 of 100

obligation  was   the  same   which  is  the  object  of  another
obligation. Poth. Obl. 552.

   12. A  single payment  may discharge  several debts;   as, for
example if  Peter be  indebted to  Paul one thousand dollars, and
Paul being  indebted to James, Paul give an order to Peter to pay
Tames this  money;  the payment made by Peter to James discharges
both the  obligations due by Peter to Paul, and by Paul to James.
Poth. Ob.  n. 553.  This rule,  that a  payment made  in order to
acquit  or   discharge  an  obligation,  extinguishes  the  other
obligations which  have the  same object,  takes place  also when
there are  several debtors  as regards the whole of them. If, for
example, Peter  trust Paul  on the  credit of James, a payment by
Paul discharges both himself and James. Poth. Obl. n. 554.

   13. But in case money or other things have been delivered to a
person who  was supposed  to be  entitles to  them as a creditor,
when he was not, this is not a payment, and the whole, if nothing
was due,  or if  the debt  was less  than the  amount  paid,  the
surplus, may  be recovered  in action for money bad and received.
Vide, generally,  Bouv. Inst.  Index, h.  t.;  Com. Di g. 473;  8
Com. Dig.  607;   16 Vin 6;  1 Vern. by Raith. 3, 150 n. Yelv. 11
a;   1 Salk.  22;   15 East, 12;  8 East, R. 111;  2 Ves. jr. 11;
Phil. Ev.  Index, b,  t,;   Stark. Ev.  h. t.;  Louis. Code, art.
2129;   Ayl. Pand.  565;   1 Sell. Pr. 277;  Dane's Ab. Index, h.
t.;   Toull. lib.  3, tit. 3, c. 5;  Pardes. part 2, tit. 2, c. 1
Merl. Repert.  h. t.;   Chit.  Contr. Index, h. t.;  3 Eng. C. L.
Rep. 130.  As to  what transfer will amount to an assignment or a
payment and  extinguishment of  a claim,  see 6 John. Ch. R. 395;
Id. 425;   2  Ves. jr. 261 18 Ves. jr. 384;  1 N. H. Rep. 167;  1
N. H. Rep. 252;  2 N. H. Rep. 300;  3 John. Ch. R. 53.

   PAYMENT, pleadings.  The name of a plea by which the defendant
alleges that  he has  paid the  debt claimed  in the declaration;
this plea must conclude to the country. 4 Call, 371;  Minor, 137.
Vide Solvit ad them;  Solvit post diem.

   PAYS. The  country. Trial per pays, is a trial by the country;
that is, by jury. Vide Pais.

   PAX REGIS,  Eng. law. The king's peace. In ancient times there
were certain limits which were known by this name. The pax regis,
or the  verge of the court, as it was afterwards called, extended
from the  palace gate  to the  distance  of  three  miles,  three
furlongs,  three   acres,  nine   feet,  nine   palms  and   nine
barleycorns. Crabb's C. L. 41.

   PEACE.  The  tranquillity  enjoyed  by  a  political  society,
internally, by the good order which reigns among its members, and
externally, by  the good  understanding it  has  with  all  other
nations. Applied  to the  internal regulations of a nation, peace
imports, in  a technical  sense, not merely a state of repose and
security, as opposed to one of violence and warfare, but likewise
a state  of public  order and  decorum. Ham.  N. P. 139;  12 Mod.
566. Vide,  generally, Bac. Ab. Prerogative, D 4;  Hale, Hist. P.
C. 160;   3  Taunt. R. 14;  1 B. & A. 227;  Peake, R. 89;  1 Esp.
R. 294;   Harr.  Dig. Officer, V 4;  2 Benth. Ev. 319, note. Vide
Good behaviour;  Surety of the peace.

         Bouvier's Law Dictionary : P1 : Page 71 of 100

   PECK. A  measure of  capacity,  equal  to  two  gallons.  Vide

    PECULATION,  civil  law.  The  unlawful  appropriation  by  a
depositary of  public funds,  of the  property of  the government
entrusted to  his care,  to his own use or that of others. Domat,
Suppl. au Droit Public, liv. 3, tit. 5.

   PECULIAR, eccles.  law. In  England, a  particular  parish  or
church, which  has, within  itself, independent  of the  ordinary
jurisdiction, power  to grant  probate of  wills, and the like. 1
Eng. Eccl. R. 72, note;  Shelf. on Mar. & Div. 538. Vide Court of

   PECULIUM, civil  law. The  savings which were made by a son or
slave with  the consent  of his  father or master. Inst. 2, 9, 1;
Dig. 15,  1, 5,  3;  Poth. ad Pand. lib. 50 , tit. 17, c. 2, art.

   2. A  master is  not entitled to the extraordinary earnings of
his apprentice, which do not interfere with his services so as to
affect his  master's profits. An apprentice was therefore decreed
to be entitled to salvage in opposition to his master's claim for
it. 2 Cranch, 270.

   PECUNIA, civil  law, property  By the  term was understood, 1.
Money. 2.  Every thing  which constituted the private property of
an individual,  or which  was a  part of his fortune;  a slave' a
field, a house, and the like, were so considered.

   2. It is in this sense the law of the Twelve Tables said;  Uti
quisque pater  familias legassit super pecunia tutelare rei suae,
ita jus  esto. In  whatever manner  a father of a family may have
disposed of  his property, or of the tutorship of his things, let
this disposition be law. 1 Lecons Elem. du Dr. Civ. Rom. 288.

  3. Flocks were the first riches of the ancients, and it is from
pecus that  the words  pecania, peculium, peculatus, are derived.
Co. Litt. 207.

  PECUNIARY. That which relates to money.

   2. Pecuniary  punishment, is  one which  imposes a  fine on  a
convict;  a pecuniary legacy is one which entitles the legatee to
receive a  sum of  money, and  not a  specific  chattel.  In  the
ecclesiastical law, by pecuniary causes is understood such causes
as arise  either from the withholding ecclesiastical dues, or the
doing  or   omitting  such   acts  relating  to  the  church,  in
consequence of  which damage accrues to the plaintiff. In England
these causes are cognizable in the ecclesiastical courts.

   PEDIGREE, descents.  A succession  of degrees from the origin;
it is  the state of the family as far as regards the relationship
of the  different members,  their births,  marriages and  deaths;
this term  is applied  to persons  or families,  who trace  their
origin or descent.

         Bouvier's Law Dictionary : P1 : Page 72 of 100

   2. On  account of  the difficulty  of proving  in the ordinary
manner by living witnesses, facts which occurred in remote times,
hearsay evidence (q. v.) has been admitted to prove a pedigree. 1
Phil. Ev. 186;  1 Stark. Ev. 55;  10 Serg. & Rawle, 383;  2 Supp.
to Ves.  jr. 110;   8  Com. Dig. 583 1 Pet. 337;  6 Pet., 81;  13
Pet. 209  1 Wheat.  6;   3 Wash. C. C. R. 243;  4 Wash.C.C.R.186;
3Bouv.Inst.n. 3067. Vide Descent;  Line.

     PEDIS  POSSESSIO.  A  foothold,  an  actual  possession.  To
constitute adverse possession there must be pedis possessio, or a
substantial enclosure. 2 Bouv. Inst. n. 2193;  2 N. & M. 343.

  PEDLARS. Persons who travel about the country with merchandise,
for the purpose of selling it. They are obliged under the laws of
perhaps all  the states  to take  out licenses, and to conform to
the regulations which those laws establish.

  PEER. Equal. A man's peers are his equals. A man is to be tried
by his peers.

   2. In  England and  some other  countries, this  is a title of
nobility;   as, peers  of the  realm. In  the United States, this
equality is  not so  much political  as civil. A man who is not a
citizen, is nevertheless to be tried by citizens.

  PEERESS. A noblewoman, the wife of a peer.

   PEINE FORTE  ET DURE, Eng. law A punishment formerly inflicted
in England,  on a  person who, being arraigned of felony, refused
to plead and put himself on his trial, and stubbornly stood mute.
He was  to be laid down and as much weight was to be put upon him
as he  could bear,  and  more,  until  he  died.  This  barbarous
punishment has been abolished. Vide Mute.

  PELTWOOL. The wool pulled off the skin or pelt of a dead ram.

   PENAL. That  which may  be punished;   that  which inflicts  a

  PENAL STATUTES. Those which inflict a penalty for the violation
of some of their provisions.

   2. It  is a  rule of  law that such statutes must be construed
strictly. 1  Bl. Com.  88;   Esp. on  Pen. Actions,  1;  Bosc. on
Conv.;   Cro. Jac.  415;   1 Com.  Dig. 444;  5 Com. Dig. 360;  1
Kent, Com.  467. They  cannot, therefore,  be extended  by  their
spirit or  equity to  other offences than those clearly described
and provided for. Paine, R. 32;  6 Cranch, 171.

   PENALTY, contr. A clause in an agreement, by which the obligor
agrees to  pay a certain-sum of money, if he shall fail to fulfil
the contract contained in another clause of the same agreement.

  2. A penal clause in an agreement supposes two obligations, one
of which  is the  primitive or  principal;   and the  other,  is,
conditional or accessory.

         Bouvier's Law Dictionary : P1 : Page 73 of 100

  3. The penal obligation differs from an alternative obligation,
for this  is but  one in  its essence;   while  a penalty  always
includes  two  distinct  engagements,  and,  when  the  first  is
fulfilled, the second is void. When a breach has taken place, the
obligee has  his option  to require  the fulfilment  of the first
obligation, or'  the payment of the penalty, in those cases which
cannot be  relieved in  equity, when the penalty is considered as
liquidated damages.  Dalloz, Dict.  mots Obligation  avec  clause

   4. It  is difficult,  in many  cases, to distinguish between a
penalty and  liquidated damages.  In  general,  the  courts  have
inclined to  consider the  sum reserved by such agreement to be a
penalty, rather than as stipulated damages. (q. v.)

   5. The  sum will  be considered  as  a  penalty,  and  not  as
liquidated damages,  in the following cases:  1. When the parties
to the agreement have expressly declared the sum to be a penalty,
and no  other intent  is to  be collected  from the instrument. 2
Bos. &  P. 346;   1  H. Bl.  227;  1 Pick. 45 1;  4 Pick. 179;  7
Wheat. 14;   3  John. Cases,  297. 2.  When from  the form of the
instrument, as  in the  case of  a money bond, it is sufficiently
clear a penalty was intended.

   3. When  it is  doubtful whether  the sum  was intended  as  a
penalty or  not, and  a certain damage or debt is made payable on
the face  of the  instrument. 2  B. &  P. 350;  3 C. & P. 240. 4.
When the  agreement was  evidently made  for  the  attainment  of
another object, to which the sum, specified is wholly collateral,
11 Mass.  76;   15 Mass. 488;  1 Bro. C. C. 418, 419. 5. When the
agreement contains  several  matters,  of  different  degrees  of
importance, and  yet the  sum mentioned is payable for the breach
of any,  even the  least. 6  Bing. 141;   5  Bing. N.  C. 390;  7
Scott, 364.  6. When  the contract  is not  under seal,  and  the
damages may  be ascertained  and estimated;   and this though the
parties have  expressly declared  the sum  to  be  as  liquidated
damages. 2B.  & Ald. 704;  6 B. & C. 216;  4 Dall. 150;  5 Cowen,
144. See  2 Greenl.  Ev. 258.  1 Holt N. P. C. 43 1 Bing. R. 302;
S. C. 8 Moore, 244;  4 Burr. 2229.

   6. The  penalty remains unaffected, although the condition may
have been  partially performed;   as  in a case where the penalty
was one thousand dollars, and the condition was to pay an annuity
of one  hundred dollars,  which had been paid for ten years;  the
penalty was still valid. 5 Verm. 365.

   7. A  distinction seems to be made in courts of equity between
penalties and  forfeitures. In cases of forfeiture for the breach
of any  covenant other  than a  covenant to pay rent, relief will
not be  granted in  equity, unless  upon the  ground of accident,
fraud, mistake,  or surprise,  when  the  breach  is  capable  of
compensation. Edin. on Inj. 22;  16 Ves. 403;  S. C. 18 Ves. 58 3
Ves. 692;  4 Bouv. List. n. 3915.

         Bouvier's Law Dictionary : P1 : Page 74 of 100

   8. By penalty is understood, also, the punishment inflicted by
law for its violation;  the term is mostly applied to a pecuniarypunishment. See  6 Pet.  404;   10 Wheat. 246;  1 Gall. R. 26;  2
Gall. R.  515;   1 Mason, R. 243;  3 John. Cas. 297:  R. 451;  15
Mass. 488;   7  John. 72  4 Mass. 433;  8 Mass. 223;  8 Com. Dig.
846;   16 Vin.  Ab. 301;   1  Vern. 83,  n.;  1 Saund. 58, n.;  1
Swans. 318;   1  Wash. C. C. R. 1;  2 Wash. C. C. R. 323;  Paine,
C. C. R. 661;  7 Wheat. 13. See, generally, Bouv. Inst. Index, h.

   PENANCE, eccl. law. An ecclesiastical punishment, inflicted by
an ecclesiastical  court, for  some spiritual  offence. Ayl. Par.

   PENCIL. An instrument made of plumbago, black lead, red chalk,
or other suitable substance, for writing without ink.

   2. It has been holden that a will written with a pencil, could
riot, on  this account, be annulled. 1 Phillim. R. 1;  2 Phillim.

   PENDENTE LITE.  Pending the  continuance of  an action,  while
litigation continues.

  2. An administrator is appointed, pendente lite, when a will is
contested. 2 Bouv. Inst. n. 1557. Vide ddministrator.

  PENDENTES, civil law. The fruits of the earth not yet separated
from the ground;  the fruits hanging by the roots. Ersk. Inst. B.
2, Lit. 2, s. 4.

   PENETRATION, crimes.  The act  of inserting the penis into the
female organs  of generation. 9 Car. & Pa 118;  S. C. 38 E. C. L.
R. 63.  See 8  Car. & Payne, 614;  34 E. C. L. R. 562;  5 C. & P.
321;   S. C. 24 E, C. L. R. 339;  9 C. & P. 31 Id. 752;  38 E. C.
L. R.  320. But  in order  to commit  the crime  of rape,  it  is
requisite that  the penetration  should be such as to rupture the
hymen. 5 C. & P. 321.

   2. This  has been denied to be sufficient to constitute a rape
without emission. (q. v.) Bee, on this subject, 12 Co. 37;  Hawk.
bk 1,  c. 41,  s. 3;   1  Hale, P. C. 628;  1 East, P. C. 437, 8;
Russ & Ry. C. C. 519;  6 C. & P. 351;  5 C. & P. 297, 321;  S. C.
24 E.  C. L. R. 339;  1 Chit. Med. Jur. 386 to 395;  1 Virg. Cas.
307;   4 Mood.  Cr. Cas.  142, 337;   4  Car. & P. 249;  1 Par. &
Fonbl. 433;   2  Mood. & M. C. N. P. 122;  1 Russ. C. & M 560;  1
East, P. C. 437.

  PENITENTIARY. A prison for the punishment of convicts.

   2. There  are two  systems of  penitentiaries  in  the  United
States, each of which is claimed to be the best by its partizans:
the Pennsylvauia  system and  the New York system. By the former,
convicts  are   lodged  in   separate,  well  lighted,  and  well
ventilated cells,  where they are required to work, during stated
hours. During the whole time of their confinement, they are never
permitted  to   see  or   speak  with  each  other.  Their  usual
employments are  shoemaking, weaving, winding yarn, picking wool,

         Bouvier's Law Dictionary : P1 : Page 75 of 100

and such  like business.  The only  punishments to which convicts
are subject,  are the  privation of  food for  short periods, and
confinement without  labor in  dark, but  well aired cells;  this
discipline has  been found sufficient to keep perfect order;  the
whip ana  all other  corporal  punishments  are  prohibited.  The
advantages of  the plan  are numerous.  Men cannot long remain in
solitude without labor convicts, when deprived of it, ask it as a
favor, and  in order  to retain  it, use,  generally, their  best
exertions to  do their  work well;  being entirely secluded, they
are of  course unknown to their fellow prisoners, and can form no
combination to  escape while  in prison,  or associations to prey
upon society when they are out;  being treated with kindness, and
afforded books  for their  instruction and amusement, they become
satisfied that  society does  not make  war upon  them, and, more
disposed to return to it, which they are not prevented from doing
by the  exposure of  their fellow  prisoners, when  in a  strange
place;   the labor  of the  convicts tends  greatly to defray the
expenses of  the prison. The disadvantages which were anticipated
have been  found, to  be groundless.;  Among these were, that the
prisoners  would   be  unhealthy;    experience  has  proved  the
contrary;   that they  would become  insane, this  has also  been
found to  be otherwise;   that  solitude is incompatible with the
performance of business;  that obedience to the discipline of the
prison could  not be  enforced. These and all other objections to
this system are, by its friends, believed to be without force.

   3. The  New York system, adopted at Auburn, which was probably
copied from the penitentiary at Ghent, in the Netherlands, called
La Maison  de Force,  is founded  on the  system of isolation and
separation, as  well as  that  of  Pennsylvania,  but  with  this
difference, that  in the  former the  prisoners are  confined  to
their separate  cells during  the night only;  during the working
hours  in  the  day  time  they  labor  together  in  work  shops
appropriated to  their use. They cat their meals together, but in
such a manner as not to be able to speak with each other. Silence
is also  imposed upon them at their labor. They perform the labor
of  carpenters,   blacksmiths,  weavers,   shoemakers,   tailors,
coopers, gardeners,  wood sawyers,  &c.  The  discipline  of  the
prison  is  enforced  by  stripes,  inflicted  by  the  assistant
keepers, on the backs of the prisoners, though this punishment is
rarely exercised.  The advantages  of this  plan  are,  that  the
convicts are  in solitary  confinement during  the night;    that
their labor,  by being joint, is more productive;  that, inasmuch
as a clergyman is employed to preach to the prisoners, the system
affords an,  opportunity for mental and moral improvements. Among
the  objections   made  to   it  are,  that  the  prisoners  have
opportunities of  communicating with  each other,  and of forming
plans of  escape, and when they are out of prison, of associating
together in  consequence of  their previous  acquaintance, to the
detriment of  those who  wish to  return to  virtue, and  to  the
danger of the public;  that the discipline is degrading, and that
it engenders  bitter resentment in the mind of the convict. Vide,
generally, on  the  subject  of  penitentiaries,  Report  of  the
Commissioners (Messrs.  King, Shaler,  and Wharton,) on the Penal
Code of  Pennsylvania;   De Beaumont  and De  Toqueville, on  the
Penitentiary  System   of  the  United  States;    Mease  on  the
Penitentiary System of Pennsylvania;  Carey on ditto;  Reports of

         Bouvier's Law Dictionary : P1 : Page 76 of 100

the Boston  Prison Discipline  Society;   Livingston's  excellent
Introductory Report  to the Code of Reform and Prison Discipline,
prepared for the state of Louisiana;  Encycl. Americ. art. Prison
Discipline;   De. I'Etat  Actuel des Prisons en France, par L. M.
More au  Christophe;   Dalloz, Dict.  mot Peine,  §1, n.  3,  and
Supplem. mots Prisons et Bagnes.

   PENNSYLVANIA. The  name of  one of  the original states of the
United States  of America.  Pennsylvania was occupied by planters
of various  nations, Dutch  Swedes, English,  and  others;    but
obtained no  separate name  until the year 1681, when Charles II.
granted a  charter to  William  Penn,  by  which  he  became  its
proprietary, saving,  however, allegiance  to  the  crown,  which
retained the  sovereignty of the country. This charter authorized
the proprietary, his heirs and successors, by and with the assent
of the  freemen of  the country,  or their deputies assembled for
the purpose,  to make  laws.  Their  laws  were  required  to  be
consonant to  reason, and  not repugnant or contrary, but as near
as conveniently  could be  to the  laws and  statutes of England.
Pennsylvania was  governed by this charter till the period of the

   2. The constitution of the state was adopted on the second day
of September,  1790, and  amended by a convention selected by the
people, on the twenty-second day of February, 1838. The powers of
the government  are divided  into three  distinct branches:   the
legislative, the executive and the judiciary.

   3. -  1st. The  legislative  power  is  vested  in  a  general
assembly,   which   consists   of   a   senate   and   house   of

   4. -  1. The  senate will  be considered with reference to the
qualification of the electors;  the qualification of the members;
the length  of time  for which they are elected;  and the time of
their election.  1. In  elections by  the citizens,  every  white
freeman of  the age  of twenty-one  years having  resided in this
state one  year, and  in the election district where he offers to
vote ten days immediately preceding such election, and within two
years paid  a state or county tax, which shall have been assessed
at least  ten days before the election, shall enjoy the rights of
an elector. But a citizen of the United States who had previously
been a  qualified voter  of this  state and removed therefrom and
returned, and who shall have resided in the election district and
paid taxes as aforesaid, shall be entitled to vote after residing
in the  state six months:  Provided, that white freemen, citizens
of  the  United  States,  between  the  ages  of  twenty-one  and
twenty-two years,  and having  resided in the state one year, and
in  the  election  district  ten  days  as  aforesaid,  shall  be
en-titled to  vote although  they shall not have paid taxes. Art.
3, s.  1. 2.  No person  shall be  a senator  who shall  not have
attained the  age of  twenty-five years,  and have been a citizen
and inhabitant  of the state four years next before his election,
and the last year thereof an inhabitant of the district for which
he shall  be chosen,  unless he  shall have  been absent  on  the
public business  of the  United States  or of this state;  and no
person elected  as aforesaid, shall hold the said office after he

         Bouvier's Law Dictionary : P1 : Page 77 of 100

shall have  removed from  such district.  Art. 1,  s. 8.  3.  The
number of  senators shall  never be  less  than  one-fourth,  nor
greater than  one-third of the number of representatives. Art. 1,
s. 6. 4. The senators hold their office for three years.

  5. Their election takes place on the second Tuesday of October,
one-third of the senate each year.

   6. - 2. The house of representatives will be treated of in the
same manner which has been observed in considering the senate. 1.
The electors  are qualified in the same manner as the electors of
the senate.  2. No person shall be a representative who shall Dot
have attained  the age  of twenty-one  years,  and  have  been  a
citizen and  inhabitant of  the state  three years next preceding
his election,  and the  last year  thereof an  inhabitant of  the
district in  and for  which he  shall be chosen a representative,
unless be  shall have  been absent  on the public business of the
United States  or of  this state.  Art. 1, s. 3. 3. The number of
representatives shall  never be less than sixty, nor greater than
one hundred.  Art. 1,  s. 4. 4. They are elected yearly. 5. Their
election is on the second Tuesday of October, yearly.

   6. -  2d. The  supreme executive power of this commonwealth is
vested in  a governor.  1. He  is elected  by the electors of the
legislature. 2. He must be at least thirty years of age, and have
been a  citizen and  an inhabitant  of the state seven years next
before his  election, unless  he shall  have been  absent on  the
public business of the United States or of this state. Art. 2, s.
4. 3.  The governor shall hold his office during three years from
the third Tuesday of January next ensuing his election, and shall
not be  capable of holding it longer than six in any term of nine
years. Art.  2, s.  3. 4.  His principal duties are enumerated in
the second article of the constitution, as follows:  The governor
shall at  stated times  receive for  his services  a compensation
which shall  be neither increased or diminished during the period
for  which   he  shall   have   been   elected.   He   shall   be
commander-in-chief of the army and navy of this commonwealth, and
of the  militia, except when they shall be called into the actual
service of the United States. He shall appoint a secretary of the
commonwealth during  pleasure;  and he shall nominate, and by and
with the  advice and  consent of the senate appoint, all judicial
officers of  courts of  record, unless  otherwise provided for in
this constitution. He shall have power to fill all vacancies that
may happen  in such  judicial offices  during the  recess of  the
senate, by  granting commissions which shall expire at the end of
their next  session:   Provided,  that  in  acting  on  executive
nominations  the  senate  shall  sit  with  open  doors,  and  in
confirming or rejecting the nominations of the governor, the vote
shall be  taken by  yeas and  nays. He  shall have power to remit
fines and forfeitures, and grant reprieves and pardons, except in
cases of  impeachment. He may require information in writing from
the officers  in the  executive  departiment,  upon  any  subject
relating to  the duties  of their  respective offices.  He shall,
from time  to time,  give to  the general assembly information of
the  state   of  the   commonwealth,  and   recommend  to   their
consideration such  measures as he shall judge expedient. He may,
on extraordinary  occasions, convene  the general assembly;  and,

         Bouvier's Law Dictionary : P1 : Page 78 of 100

in case  of disagreement  between the  two houses with respect to
the time  of adjournment,  adjourn them  to such time as he shall
think proper,  not exceeding four months. He shall take care that
the laws  be  faithfully  executed.  In  case  of  the  death  or
resignation of  the governor,  or of his removal from office, the
speaker of the senate shall exercise the office of governor until
another governor  shall be  duly qualified;   but  in  such  case
another governor  shall be  chosen at the next annual election of
representatives, unless  such death, resignation or removal shall
occur within  three calendar  months, immediately  preceding such
next annual election, in which case a governor shall be chosen at
the second  succeeding annual election of representatives. And if
the trial  of a  contested election  shall continue  longer  than
until the  third Monday  of January  next ensuing the election of
governor, the  governor of  the last  year, or the speaker of the
senate who  may be  in the  exercise of  the executive authority,
shall continue  therein until the determination of such contested
election, and  until  a  governor  shall  be  duly  qualified  as

   7. -  3d. The  judicial power of the commonwealth is vested by
the fifth article of the constitution as follows:

   §1. The judicial power of this commonwealth shall be vested in
a supreme  Court, in courts of oyer and terminer and general jail
delivery, in  a court of common pleas, orphans' court, register's
court, and  a court  of quarter  sessions of  the peace, for each
county in  justices of the peace, and in such other courts as the
legislature may from time to time establish.

   8. -  §2. By  an amendment to this constitution, the judges of
the supreme  court, of the several courts of common pleas, and of
such other  courts of  record as  are or  shall be established by
law, shall  be elected  by the qualified electors, as provided by
act of  April 15, 1851. Pam. Laws, 648. The judges of the supreme
court shall  hold their  offices for the term of fifteen years if
they shall  so long  behave themselves well. The president judges
of the several courts of common pleas and of such other courts of
record as  are or  shall be  established by  law, and  all  other
judges required  to be  learned in  the  law,  shall  hold  their
offices for  the term  of ten  years if they shall so long behave
themselves well.  The associate  judges of  the courts  of common
pleas shall hold their offices for the term of five years if they
shall so  long behave  themselves well.  But for  any  reasonable
cause which  shall not  be sufficient  ground of impeachment, the
governor may  remove any  of them on the address of two-thirds of
each branch  of the  legislature. The judges of the supreme court
and the  presidents of  the several courts of common pleas, shall
at  stated   times  receive   for  their   services  an  adequate
compensation to  be fixed  by law,  which shall not be diminished
during their  continuance in  office, but  they shall  receive no
fees or  perequisites of  office, nor  hold any  other office  of
profit under this commonwealth.

   9. - §3. Until otherwise directed by law, the courts of common
pleas shall  continue as  at present  established. Not  more than
five counties  shall at  any time  be included  in  one  judicial
district organized for said courts.

         Bouvier's Law Dictionary : P1 : Page 79 of 100

   10. -  §4. The  jurisdiction of the supreme court shall extend
over the state;  and the judges thereof shall, by virtue of their
offices be  justices  of  oyer  and  terminer  and  general  jail
delivery, in the several counties.

   11. -  §5. The  judges of  the court  of common pleas, in each
county, shall,  by virtue  of their  offices, be justices of oyer
and terminer  and general jail delivery, for the trial of capital
and other  offenders therein;   any  two of  the said judges, the
president being  one, shall be a quorum;  but they shall not hold
a court  of oyer  and terminer,  or jail delivery, in any county,
when the  judges, of  the supreme court, or any of them, shall be
sitting in  the same  county. The  party accused,  as well as the
commonwealth, may,  under such regulations as shall be prescribed
by law,  remove the  indictment and  proceedings, or a transcript
thereof, into the supreme court,

   12. -  §6. The supreme court, and the several courts of common
pleas, shall,  besides the powers heretofore usually exercised by
them, have the power of a court of chancery, so far as relates to
the perpetuating  If testimony,  the obtaining  of evidence  from
places not  within the  state, and  the care  of the  persons and
estates of those who are non compotes mentis. And the legislature
shall vest  in the  said courts such other powers to grant relief
in equity,  as shall  be found  necessary;  and may, from time to
time, enlarge  or diminish  those powers,  or vest  them in  such
other  courts   as  they   shall  judge   proper  for   the   due
administration of justice.

   13, -  §7. The  judges of  the court  of common  pleas of each
county, any  two of  whom shall  be a  quorum, shall  compose the
court of  quarter sessions  of  the  peace,  and  orphans'  court
thereof:   and the  register of  wills, together  with  the  said
judges, or,  any two  of them, shall compose the register's court
of each county.

   14. -  §8. The  judges of  the courts  of common  pleas shall,
within their  respective counties,  have the like powers with the
judges of  the supreme court, to issue writs of certiorari to the
justices of  the peace,  and to  cause their  proceedings  to  be
brought before them, and the like right and justice to be done.

   15. -  §9. The  president of  the court in each circuit within
such circuit,  and the judges of the court of common pleas within
their respective counties, shall be justices of the peace, so far
as relates to criminal matters.

   16. -  §10. A  register's office, for the probate of wills and
granting  letters  of  administration,  and  an  office  for  the
recording of deeds, shall be kept in each county.

   17. - §11. The style of all process shall be "The commonwealth
of Pennsylvania."  All prosecutions  shall be  carried on  in the
name and  by the  authority of  the commonwealth of Pennsylvania,
and conclude, "against the peace and dignity of the same."

         Bouvier's Law Dictionary : P1 : Page 80 of 100

   PENNY. The name of an English coin of the value of one-twelfth
part of  a shilling.  While the United States were colonies, each
adopted a  monetary system  composed of  pounds,  shillings,  and
pence. The penny varied in value in the different colonies.

   PENNYWEIGHT. A troy weight which weighs twenty-four grains, or
one-twentieth part of an ounce. Vide Weights.

   PENSION.  A  stated  and  certain  allowance  granted  by  the
government to  an individual,  or those  who represent  him,  for
valuable  services   performed  by   him  for  the  country.  The
government of  the United  States has,  by general  laws, granted
pensions to  revolutionary soldiers;   vide  1 Story's Laws U. S.
68;   101, 224,  304, 363,  371, 451;  2 Id. 903, 915, 983, 1008,
1240;   3 Id.  1662, 1747,  1778, 1794,  1825, 1927;  4 Id. 2112,
2270, 2329,  2336, 2366;  to naval officers and sailors;  1 Stor.
L. U.  S. 474,  677, 769;   2  Id. 1284  3 Id. 1565;  to the army
generally;   1 Id.  360, 412,  448;  2 Id. 833;  3 Id 1573 to the
militia generally;   1  Id. 255, 360, 412, 488 2 Id. 1382;  3 Id.
1873;  in the Seminole war, 3 Id. 1706.

   PENSIONER. One who is supported by an allowance at the will of
another. It  is more  usually applied  to  him  who  receives  an
annuity or pension from the government.

  PEONIA, Spanish law. A portion of land which was formerly given
to a  simple soldier,  on the  conquest of a country. It is now a
quantity of  land, of  different size  in different provinces. In
the Spanish  possessions in America, it measured fifty feet front
and one  hundred feet  deep. 2  White's Coll.  49;   12 Pet. 444,

   PEOPLE. A  state;  as, the people of the state of New York;  a
nation in iis collective and political capacity. 4 T. R. 783. See
6 Pet. S. C. Rep. 467.

  2. The word people occurs in a policy of insurance. The insurer
insures against  "detainments of  all kings, princes and people."
He is not by this understood to insure against any promiscuous or
lawless rabble  which may  be guilty  of attacking or detaining a
ship. 2 Marsh. Ins. 508. - Vide Body litic;  Nation.

   PER. By. When a writ of entry is sued out against the alienee,
or descendant  of the  original disseisor,  it is then said to be
brought in  the per,  because the writ states that the tenant had
not the entry but by the original wrong doer. 3 Bl. Com. 181. See
Entry, writ of.

   PER CAPITA, by the head or polls. This term is applied when an
estate is  to be divided share and share alike. For example, if a
legacy be  given to  the issue of A B, and A B at the time of his
death, shall  have two children and two grandchildren, his estate
shall  be   divided  into   four  parts,  and  the  children  and
grandchildren shall  each have  one of them. 3 Ves. 257;  13 Ves.
344. Vide 1 Rop. on Leg. 126, 130.

         Bouvier's Law Dictionary : P1 : Page 81 of 100

   PER AND  CUI. When a writ of entry is brought against a second
alienee or descendant from the disseisor, it is said to be in the
per and  cui, because the form of the writ is that the tenant had
not entry  but by and under a prior alienee, to whom the intruder
himself demised it. 2 Bl. Com. 181. See Entry, writ of.

   PER FRAUDEM.  A replication to a plea where something has been
pleaded which  would be  a discharge,  if it  had  been  honestly
pleaded, that  such a  thing  has  been  obtained  by  fraud  for
example, where on debt on a statute, the defendant pleads a prior
action depending,  if such action has been commenced by fraud the
plaintiff may reply per fraudem:  2 Chit. Pl. *675.

   PER INFORTUNIUM, criminal law. Homicide per infortunium, or by
misadventure, is  said to take place when a man in doing a lawful
act, without  any intent  to hurt,  unfortunately kills  another.
Hawk. bk. 1, c. 11;  Foster, 258, 259;  3 Inst. 56.

   PER MINAS. By threats. When a man is compelled to enter into a
contract by threats or menaces, either for. fear of loss of life,
or mayhem,  he may avoid it afterwards. 1 Bl. Com. 131;  Bac. Ab.
Duress;  Id. Murder A. See Duress.

  PER MY ET PER TOUT. By every part or parcel and by the whole. A
joint tenant  of lands  is said  to be seised per my et per tout.
Litt. s. 288. See 7 Mann. & Gr. 172, note c.

  PER QUOD, pleading. By which;  whereby.

   2. When  the plaintiff  sues for  an injury  to  his  relative
rights, as  for beating  his wife, his child,, or his servant, it
is usual  to lay  the injury with a per quod. In such case, after
complaining of  the injury,  say to  the  wife,  the  declaration
proceeds, "insomuch  that the  said E  F, (the wife,) by means of
the premises, then and there became and was sick, sore, lame, and
disordered, and  so remained  and continued  for a  long space of
time,  to   wit,  hitherto,  whereby  he,  the  said  A  B,  (the
plaintiff,) lost", &c. 2 Chit. Pl. 422;  3 Bl. Com. 140. It seems
that the  per quod is not traversable. 1 Saund. 298;  1 Ld. Raym.
410;  2 Keb. 607;  1 Saund. 23, note 5.

  PER STIRPES. By stock;  by roots.

   2. When,  for example,  a man dies intestate, leaving children
and grandchildren,  whose parents  are deceased, the estate is to
be divided  not per  capita, that is, by each of the children and
grandchildren taking  a share,  but per  stirpes, by  each of the
children taking a share, and the grandchildren, the children of a
deceased child,  taking a  share to  be afterwards  divided among
themselves per capita.

   PERAMBULATIONE FACIENDA, WRIT DE, Eng. law. The name of a writ
which is  sued by consent of both parties, when they are in doubt
as to  the bounds of their respective estates;  it is directed to
the sheriff  to make  perambulation, and  to set  the bounds  and
limits between them in certainty. F. N. B. 309.

         Bouvier's Law Dictionary : P1 : Page 82 of 100

   2. "The  writ de  perambulatione facienda is not known to have
been adopted  in practice  in the  United States," says Professor
Greenleaf, Ev. §146 note, "but in several of the states, remedies
somewhat similar in principle have been provided by statutes."

   PERCH, measure. The length of sixteen feet and a half:  a pole
or rod  of that  length. Forty  perches in  length  and  four  in
breadth make an acre of land.

   PERDONATIO UTLAGARIAE,  Eng. law.  A pardon for a man who, for
contempt in  not yielding  obedience to the process of the king's
courts,  is   outlawed,  and   afterwards,  of  his  own  accord,

   PEREGRINI, civil law. Under the denomination of peregrini were
comprehended all  who did  not enjoy  any capacity  of  the  law,
namely, slaves, alien enemies, and such foreigners as belonged to
nations with which the Romans bad not established relations. Sav.
Dr. Rom. §66.

   PEREMPTORY. Absolute;   positive. A final determination to act
without hope  of renewing  or altering.  Joined to a substantive,
this word  is frequently  used in law;  as peremptory action;  F.
N. B.  35, 38,  104, 108;    peremptory  nonsuit;    Id.  5,  11;
peremptory  exception;    Bract.  lib.  4,  c.  20;    peremptory
undertaking;   3 Chit.  Pract. 112, 793;  peremptory challenge of
jurors, which  is the  right to  challenge without  assigning any
cause. Inst.  4, 13, 9 Code, 7, 50, 2;  Id. 8, 36, 8;  Dig. 5, 1,
70 et 73.

   PEREMPTORY DEFENCE,  equity, pleading. A defence which insists
that the  plaintiff never had the right to institute the suit, or
that if he had, the original right is extinguished or determined.
4 Bouv. Inst. n. 4206.

   PEREMPTORY PLEA, pleading. A plea which denies the plaintiff's
cause of action. 3 Bouv. Inst. n. 2891. Vide Plea.

  PERFECT. Something complete.

   2. This term is applied to obligations in order to distinguish
those which  may be  enforeed by  law, which  are called perfect,
from those  which cannot  be so enforced, which are said to be im
perfect. Vide Imperfect;  Obligations.

  PERFIDY The act of one who has engaged his faith to do a thing,
and does not do it, but does the contrary. Wolff, §390.

   PERFORMANCE. The  act of  doing something;   the thing done is
also called  a performance;   as,  Paul is  exonerated  from  the
obligation of his contract by its performance.

   2. When  it contract  has been made by parol, which, under the
statute of  frauds and  perjuries, could not be enforced, because
it was  not in  writing, and  the party  seeking to avoid it, has
received the  whole or  a part  performance of such agreement, he
cannot afterwards  avoid it;   14 John. 15;  S. C. 1 John. Ch. R.

         Bouvier's Law Dictionary : P1 : Page 83 of 100

273;   and such  part performance  will enable the other party to
prove it  aliunde. 1  Pet. C.  C. R.  380;   1 Rand.  R. 165;   1
Blackf. R.  58;  2 Day, R. 255;  1 Desaus. R. 350;  5 Day, R. 67;
1 Binn.  R. 218;  3 Paige, R. 545;  1 John. Ch. R. 131, 146. Vide
Specific performance.

   PERIL. The  accident by  which a  thing is lost Lee,. Dr. Rom.

  PERILS OF THE SEA, contracts. Bills of lading generally contain
an exception  that the carrier shall not be liable for "perils of
the sea."  What is  the precise  import of  this  phrase  is  not
perhaps very  exactly settled.  In a  'strict  sense,  the  words
perils of  the sea,  denote the natural accidents peculiar to the
sea;  but in more than one instance they have been held to extend
to events  not attributable to natural causes. For instance, they
have been  held to  include a  capture by pirates on the high sea
and a  case of  loss by collision by two ships, where no blame is
imputable to  either, or  at all  events not to the injured ship.
Abbott on  Sh. P.  3, C.  4 §1,  2, 3, 4, 5, 6;  Park. Ins. c, 3;
Marsh. Ins.  B. 1,  c. 7,  p. 214;  1 Bell's Comm. 579;  3 Kent's
Comm. 251 n. (a);  3 Esp. R. 67.

   2. It  has indeed  been said,  that by  perils of  the sea are
properly meant  no other than inevitable perils or accidents upon
the sea,  and, that  by such  perils or accidents common carriers
are, prima  facie, excused,  whether there  be a  bill of  lading
containing the  expression of "peril of the sea," or not. 1 Conn.
Rep. 487.

   3. It  seems that the phrase perils of the sea, on the western
waters of the United States, signifies and includes perils of the
river. 3 Stew. & Port. 176.

   4. If  the law  be so,  then the decisions upon the meaning of
these words  become important in a practical view in all cases of
maritime or water carriage.

   5. It seems that a loss occasioned by leakage, which is caused
by rats  gnawing a  hole in  the bottom of the vessel, is not, in
the English  law, deemed  a loss  by peril  of  the  sea,  or  by
inevitable casualty. 1 Wils. R. 281;  4 Campb. R. 203. But if the
master had  used all reasonable precautions to prevent such loss,
as by having a cat on board, it seems agreed, it would be a peril
of the  sea, or inevitable accident. Abbott on Shipp. p. 3, c. 3,
§9;   but see  3 Kent's  Comm. 243,  and note c. In conformity to
this rule,  the destruction  of goods  at sea  by  rats  has,  in
Pennsylvania, been  held a peril of the sea, where there has been
no default  in the carrier. 1 Binn. 592. But see 6 Cowen, R. 266,
and 3  Kent's Com.  248, n. c. On the other hand, the destruction
of a  ship's bottom by worms in the course of a voyage, has, both
in America and England, been deemed not to be a peril of the sea,
upon the  ground, it  would seem,  that it  is a loss by ordinary
wear and  decay. Park.  on Ins. c. 3;  1 Esp. R. 444;  2 Mass. R.
429 but see 2 Cain. R. 85. See generally, Act of God;  Fortuitous
Event;. Marsh.  Ins. eh. 7;  and ch. 12, §1.;  Hildy on Mar. Ins.

         Bouvier's Law Dictionary : P1 : Page 84 of 100

  PERIPHRASIS. Circumlocution;  the use of other words to express
the sense of one.

   2. Some  words are  so technical  in  their  meaning  that  in
charging offences  in  indictments  they  must  be  used  or  the
indictment will not be sustained;  for example, an indictment for
treason  must   contain  the  word  traitorously;    (q.  v.)  an
indictment for burglary, burglariously;  ( q. v.) and feloniously
(q. v.)  must be  introduced into  every indictment for felony. 1
Chitty's Cr.  Law, 242;  3 Inst. 15;  Carth. 319;  2 Hale , P. C.
172;   184;, 4 Bl. Com. 307;  Hawk B. 2, c. 25, s. 55;  1 East P.
C. 115;   Bac.  Ab. Indictment,  G 1;  Com. ]Dig. Indictment, G 6
Cro. C. C. 37.

  TO PERISH. To come to an end;  to cease to be;  to die.

  2. What has never existed cannot be said to have perished.

   3. When  two or  more persons  die by  the same accident, as a
shipwreck, no  presumption arises  that one  perished before  the
other. Vide Death. Survivorship.

   PERISHABLE GOODS, Goods which are lessened in value and become
worse by being kept. Vide Bona Peritura.

  PERJURY, crim. law. This offence at common law is defined to be
a wilful false oath, by one who being lawfully required to depose
the truth  in any  judicial proceedings,  swears absolutely  in a
matter material  to the point in question, whether he be believed
or not.

   2. If  we analyze  this definition we will find, 1st. That the
oath must  be wilful.  2d. That  it must  be false.  3d. That the
party was  lawfully sworn. 4th. That the proceeding was judicial.
6th. That the assertion was absolute. 6th. That the falsehood was
material to the point in question.

   3. -  1. The  intention must be wilful. The oath must be taken
and the falsehood asserted with deliberation, and a consciousness
of the  nature of  the statement  made;   for if it has arisen in
consequence of inadvertency, surprise or mistake of the import of
the question, there was no corrupt motive;  Hawk. B. 1, c. 69, s.
2;   but one  who swears  wilfully and  deliberately to  a matter
which he  rashly believes,  which is  false, and  which he had no
probable cause  for believing,  is guilty  of perjury. 6 Binn. R.
249. See 1 Baldw. 370;  1 Bailey, 50.

   4. -  2. The  oath must  be false. The party must believe that
what he is swearing is fictitious;  for, if intending to deceive,
he asserts  that  which  may  happen  to  be  true,  without  any
knowledge of the fact, he is equally criminal, and the accidental
truth of  his evidence  will not excuse him. 3 Inst. 166 Hawk. B.
1, c. 69, s. 6.

   5. -  3. The  party must be lawfully sworn. The person by whom
the oath is administered must have competent authority to receive

         Bouvier's Law Dictionary : P1 : Page 85 of 100

it;  an oath, therefore, taken before a private person, or before
an officer  having no jurisdiction, will not amount to perjury. 3
Inst. 166;   1 Johns. R. 498;  9 Cowen, R. 30;  3 M'Cord, R. 308;
4 M'Cord,  It. 165;   2  Russ. on Cr. 520;  3 Carr. & Payne, 419;
S. C.  14 Eng.  Com. Law  Rep. 376;   2  Chitt. Cr.  Law, 304;  4
Hawks, 182;  1 N. & M. 546;  3 M'Cord, 308;  2 Hayw. 56;  8 Pick.

   6. -  4. The  proceedings must be judicial. Proceedings before
those who  are in  any way  entrusted with  the administration of
justice, in  respect of  any matter  regularly before  them,  are
considered as  judicial for  this purpose. 2 Chitt. Crim. C. 303;
2 Russ.  on Cr.  518;  Hawk. B. 1, c. 69, s. 3. Vide 3 Yeates, R.
414;  9 Pet. Rep. 238. Perjury cannot therefore be committed in a
case of  which the  court had  no jurisdiction.  4 Hawks, 182;  2
Hayw. 56;  3 M'Cord, 308;  8 Pick. 453:  1 N. & McC. 546.

   7. -  5. The  assertion must  be absolute.  If a man, however,
swears that  he believes  that to  be true  which he  knows to be
false, it  will be  perjury. 2 Russ. on Cr. 518;  3 Wils. 427;  2
Bl. Rep.  881;   1 Leach,  242;  6 Binn. Rep. 249;  Lofft's Gilb.
Ev. 662.

   8. -  6. The  oath must be material to the question depending.
Where the  facts sworn to are wholly foreign from the purpose and
altogether immaterial  to the  matter in  question, the oath does
not amount to a legal perjury. 2 Russel on Cr. 521;  3 Inst. 167;
8 Ves.  jun. 35;   2 Rolle, 41, 42, 369;  1 Hawk. B. 1, c. 69, s.
8;   Bac. Ab. Perjury, A;  2 N. & M. 118;  2 Mis. R. 158. Nor can
perjury be  assigned upon the valuation under oath, of a jewel or
other thing, the value of which consists in estimation. Sid. 146;
1 Keble, 510.

   9. It  is not  within the  plan of  this work  to cite all the
statutes passed  by the general government, or the several states
on the  subject of  perjury.  It  is  proper,  however,  here  to
transcribe a  part of  the 13th section of the act of congress of
March 3,  1825, which provides as follows:  "If any person in any
case, matter,  bearing, or  other proceeding,  when  an  oath  or
affirmation shall  be required  to be taken or administered under
or by  any law  or laws  of the  United States,  shall, upon  the
taking of such oath or affirmation, knowingly and willingly swear
or affirm  falsely, every  person, so  offending, shall be deemed
guilty of  perjury, and shall, on conviction thereof, be punished
by fine,  not exceeding two thousand dollars, and by imprisonment
and  confinement   to  bard  labor,  not  exceeding  five  years,
according to the aggravation of the offence. And if any person or
persons shall  knowingly or willingly procure any such perjury to
be committed, every person so offending shall be deemed guilty of
subornation of  perjury, and  shall  on  conviction  thereof,  be
punished. by  fine, not  exceeding two  thousand dollars,  and by
imprisonment and  confinement to  bard labor,  not exceeding five
years, according to the aggravation of the offence."

   10. In  general it may be observed that a perjury is committed
as well  by making  a false  affirmation, as  a false oath. Vide,
generally, 16  Vin. Abr.  307;   Bac. Abr.  h.  t.;    Com.  Dig.

         Bouvier's Law Dictionary : P1 : Page 86 of 100

Justices of  the Peace,  B 102 to 106;  4 Bl. Com. 137 to 139;  3
Inst. 163  to 168;   Hawk. B. 1, c. 69;  Russ. on Cr. B. 5, c. 1;
2 Chitt.  Cr. L. c. 9;  Roscoe on Cr. Ev. h. t.;  Burn's J. h. t.
Williams' J. h. t.

  PERMANENT-TRESPASSES. When trespasses of one and the same kind,
are committed on several days, and are in their nature capable of
renewal or  continuation, and  are actually  renowed or continued
from day  to day,  so that  the particular  injury, done  on each
particular day,  cannot be  distinguished from  what was  done on
another day,  these wrongs  are called  permanent trespasses.  in
declaring  for   such  trespasses   they  may   be  laid  with  a
continuando. 3  Bl. Com.  212;  Bac. Ab. Trespass, B 2;  Id. 1 2;
1 Saund. 24, n. 1. Vide Continuando;  Trespass.

  PERMISSION. A license to do a thing;  an authority to do an act
which  without   such  authority  would  have  been  unlawful.  A
permission differs  from a law, it is a cheek upon the operations
of the law.

   2. Permissions  are express or implied. 1. Express permissions
derogate from  something which  before  was  forbidden,  and  may
operate in  favor of  one or more persons, or for the performance
of one or more acts, or for a longer or shorter time. 2. Implied,
are those,  which arise  from the  fact  that  the  law  has  not
forbidden the  act to be done. 3. But although permissions do not
operate as  laws, in respect of those persons in whose favor they
are granted;  yet they are laws as to others. See License.

   PERMISSIVE. Allowed;   that  which may be done;  as permissive
waste, which  is the permitting real estate to go to waste;  when
a tenant  is bound  to repair  he is  punishable  for  permissive
waste. 2 Bouv. Inst. n. 2400. See Waste.

   PERMIT. A  license or  warrant to  do something  not forbidden
bylaw;   as, to land goods imported into the United States, after
the duties  have been paid or secured to be paid. Act of Cong. of
2d March,  1799, s.  49, cl.  2. See form of such a permit, Gord.
Dig. Appendix, No. II. 46.

  PERMUTATION, civil law. Exchange;  barter.

   2. This  contract is formed by the consent of the parties, but
delivery is  indispensable;   for, without it, it mere agreement.
Dig. 31, 77, 4;  Code, 4, 64, 3.

   3. Permutation differs from sale in this, that in the former a
delivery of  the articles  sold must be made, while in the latter
it is  unnecessary. It agrees with the contract of sale, however,
in the following particulars:  1. That he to whom the delivery is
made acquires the right or faculty of prescribing. Dig. 41, 3, 4,
17. 2. That the contracting parties are bound to guaranty to each
other the  title of the things delivered. Code, 4, 64, 1. 3. That
they are  bound to take back the things delivered, when they have
latent defects which they have concealed. Dig. 21, 1, 63. See Aso
& Man. Inst. B. 2, t. 16, c. 1;  Nutation;  Transfer.

         Bouvier's Law Dictionary : P1 : Page 87 of 100

   PERNANCY. This word, which is derived from the French prendre,
to take, signifies a taking or receiving.

   PERNOR OF PROFITS. He who receives the profits of lands, &c. A
cestui que use, who is legally entitled and actually does receive
the profits, i's the pernor of profits.

  PERPETUAL. That which is to last without limitation as to time;
as, a  perpetual statute,  which is one without limit as to time,
although not expressed to be so.

   PERPETUATING TESTIMONY.  The act by which testimony is reduced
to writing  as prescribed  by law, so that the same shall be read
in evidence  in some  suit or  legal proceedings to be thereafter
instituted. The  origin of  this practice  may be  traced to  the
canon law  cap. 5,  it ut  lite  non  contestata,  &c.,  et  ibi.
Bockmer, n.  4;    8  Toull.  n.  22.  Vide  Bill  to  perpetuate

  PERPETUITY, estates. Any limitation tending to take the subject
of it out of commerce for a longer period than a life or lives in
being, and  twenty-one years beyond;  and in case of a posthumous
child, a  few months  more, allowing  for the  term of gestation;
Randell on  Perpetuities, 48;   or  it is  such a  limitation  of
property as  renders it  unalienable beyond the period allowed by
law. Gilbert on Uses, by Sugden, 260, note.

   2. Mr.  Justice Powell,  in Scattergood  v. Edge, 12 Mod. 278,
distinguished  perpetuities   into  two   sorts,   absolute   and
qualified;   meaning thereby, as it is apprehended, a distinction
between a  plain, direct  and palpable  perpetuity, and  the case
where an  estate is  limited on a contingency, which might happen
within a  reasonable  compass  of  time,  but  where  the  estate
nevertheless, from  the nature  of the  limitation, might be kept
out of  commerce longer  than was thought agreeable to the policy
of the  common law.  But this distinction would not now lead to a
better understanding  or explanation of the subject;  for whether
an estate  be so  limited that  it cannot  take effect,  until  a
period too much protracted, or whether on a contingency which may
happen within a moderate compass of time, it equally falls within
the line of perpetuity and the limitation is therefore void;  for
it is  not sufficient  that an  estate may  vest within  the time
allowed, but the rule requires that it must. Randell on Perp. 49.
Vide Cruise,  Dig. tit.  32, c.  23;  1 Supp. to Ves. Jr. 406;  2
Ves. Jr.  357;  3 Saund. 388 h. note;  Com. Dig. Chancery, 4 G 1;
3 Chan. Cas. 1;  2 Bouv. Inst. n. 1890.

  PERQUISITES. In its most extensive sense, perquisites signifies
anything gotten  by industry,  or purchased with money, different
from that  which descends  from a father or ancestor. Bract. lib.
2, c.  30, n.  8;   et lib.  4, c. 22. In a more limited sense it
means something  gained by  a place  or office beyond the regular
salary or fee.

   PERSON. This  word is  applied to men, women and children, who
are called  natural persons.  In law,  man  and  person  are  not
exactly-synonymous terms. Any human being is a man, whether he be

         Bouvier's Law Dictionary : P1 : Page 88 of 100

a member of society or not, whatever may be the rank he holds, or
whatever may  be his  age, sex,  &c. A person is a man considered
according to the rank he holds in society, with all the rights to
which the  place he  holds entitles  him, and the duties which it
imposes. 1 Bouv. Inst. n. 137.

   2. It  is also  used to  denote  a  corporation  which  is  an
artificial person. 1 Bl. Com. 123;  4 Bing. 669;  C. 33 Eng. C. L
R. 488;  Wooddes. Lect. 116;  Bac. Us. 57;  1 Mod. 164.

   3. But  when the  word "Persons"  is spoken  of in legislative
acts, natural  persons will  be intended, unless something appear
in the  context to  show that it applies to artificial persons. 1
Scam. R. 178.

  4. Natural persons are divided into males, or men;  and females
or women.  Men are  capable  of  all  kinds  of  engagements  and
functions, unless  by reasons applying to particular individuals.
Women cannot  be appointed  to any public office, nor perform any
civil functions,  except those  which the  law specially declares
them capable of exercising. Civ. Code of Louis. art. 25.

   5. They  are also  sometimes divided  into  free  persons  and
slaves. Freemen  are  those  who  have  preserved  their  natural
liberty, that  is to say, who have the right of doing what is not
forbidden by  the law.  A slave  is one  who is in the power of a
master to  whom he  belongs. Slaves are sometimes ranked not with
persons but  things. But sometimes they are considered as persons
for example,  a negro  is in contemplation of law a person, so as
to be capable of committing a riot in conjunction with white men.
1 Bay, 358. Vide Man.

   6. Persons are also divided into citizens, (q. v.) and aliens,
(q. v.)  when viewed  with regard to their political rights. When
they are  considered in  relation to their civil rights, they are
living or  civilly dead;   vide  Civil  Death;    outlaws;    and
infamous persons.

   7. Persons  are divided  into legitimates  and bastards,  when
examined as to their rights by birth.

   8. When  viewed in  their domestic relations, they are divided
into parents  and children;   hushands  and wives;  guardians and
wards;  and masters and servants son, as it is understood in law,
see 1 Toull. n. 168;  1 Bouv. Inst. n. 1890, note.

   PERSONABLE. Having  the capacities  of a person;  for example,
the defendant  was judged personable to maintain this action. Old
Nat. Brev. 142. This word is obsolete.

  PERSONAL. Belonging to the person.

   2. This  adjective is  frequently employed  in connection with
substantives, things,  goods, chattels,  actions, right,  duties,
and the  like as  personal estate,  put  in  opposition  to  real
estate;   personal actions, in contradistinction to real actions;
personal rights  are those  which belong to the person;  personal
duties are those which are to be performed in person.

         Bouvier's Law Dictionary : P1 : Page 89 of 100

   PERSONAL ACTIONS.  Personal actions  are those brought for the
specific goods and chattels;  or for damages or other redress for
breach of  contract or  for injuries  of every other description;
the specific  recovery of lands, tenements and hereditaments only
excepted. Vide  Actions, and  1 Com.  Dig. 206,  450;  1 Vin. Ab.
197;  3 Bouv. Inst. n. 2641, et. seq.

   PERSONAL LIBERTY. Vide Liberty.

   PERSONAL PROPERTY.  The right  or interest  which a man has in
things personal;   it  consists of  things temporary and movable,
and includes  all subjects  of property not of a freehold nature,
nor descendable  to the heirs at law. Things of a movable nature,
when a  right can be had in them, are personal property, but some
things movable  are not  the subject  of property;   as light and
air. Under  the term  personal property,  is also  included  some
property which  is in  its nature immovable, distinguished by the
name of chattels real, as an estate for years;  and fixtures (q .
v.) are sometimes classed among personal property. A crop growing
in the  ground is  considered personal property. so far as not to
be considered  an interest  in land, under the statute of frauds.
11 East,  362;  1 Shopl. 337;  5 B & C. 829;  10 Ad. & E. 753;  9
B. & C. 561;  sed vide 9 B. & C. 561.

   2. It  is a general principle of American law, that stock held
in corporations, is to be considered as personal property;  Walk.
Introd. 211;   4 Dane's Ab. 670;  Sull. on Land Tit. 71;  1 Hill.
Ab. 18;   though  it was held that such stock was real estate;  2
Conn. R.  567;   but, this  being found inconvenient, the law was
changed by the legislature.

   3.  Property  in  personal  chattels  is  either  absolute  or
qualified;   absolute, when  the owner  has a  complete title and
full dominion  over it;   qualified,  when -he has a temporary or
special interest,  liable to be totally divested on the happening
of some particular event. 2 Kent, Com. 281.

   4. Considered  in relation  to its  use, personal  property is
either in  possession, that  is, in  the actual  enjoyment of the
owner, or,  in action, that is, not in his possession, but in the
possession of another, and recoverable by action.

   5. Title  to personal  property is  acquired. 1st. By original
acquisition by  occupancy;   as, by capture in war;  by finding a
lost thing.  2d. By  original acquisition;   by accession. 3d. By
original acquisition,  by intellectual labor;  as, copyrights and
patents for inventions. 4th. IV transfer, which is by act of law.
1. By  forfeiture. 2.  By  judgment.  3.  By  insolvency.  4.  By
intestacy. 5th.  By transfer,  by act of the party. 1 . Gifts. 2.
Sale. Vide,  generally, 16  Vin. Ab.  335;  8 Com. Dig. 474;  Id.
562;   1 Supp.  to Ves.  Jr. 49, 121, 160, 198, 255, 368, 9, 399,
412, 478;   2  Ibid. 10, 40, 129, 290, 291, 341;  1 Vern. 3, 170,
412;   2 Salk.  449;   2 Ves. Jr. 59, 336, 176, 261, 271, 683;  7
Ves. 453. See Pew;  Property;  Real property.

         Bouvier's Law Dictionary : P1 : Page 90 of 100

  PERSONAL REPRESENTATIVES. These words are construed to mean the
executors or  administrators of  the person  deceased. 6  Mad. R.
159;  2 Mad. R. 155;  5 Ves. 402;  1 Madd. Ch. 108.

   PERSONAL SECURITY.  The legal and uninterrupted enjoyment by a
man of his life, his body, his health and his reputation. 1 Bouv.
Inst. n. 202.

   PERSONALITY OF  LAWS. Those laws which regulate the condition,
state, or  capacity of persons. The term is used in opposition to
those laws  which concern property, whether real or personal, and
things. See Story, Confl. of L. 23;  and Reality of laws.

   PERSONAITY. An abstract of personal;  as, the action is in the
personalty, that  is, it  is  brought  against  a  person  for  a
personal duty  which he  owes. It  also signifies what belongs to
the person;  as, personal property.

   TO PERSONATE,  crim. law. The act of assuming the character of
another without  lawful authority,  and, in such character, doing
something to  his prejudice,  or to  the  prejudice  of  another,
without his will or consent.

   2. The  bare fact  of personating  another for  the purpose of
fraud, is  no more than a cheat or misdemeanor at common law, and
punishable as such. 2 East, P. C. 1010;  2 Russ. on Cr. 479.

   3. By  the act  of congress  of the 30th April, 1790, s. 15, 1
Story's Laws  U. S. 86, it is enacted, that " if any person shall
acknowledge, or  procure to  be acknowledged  in any court of the
United States, any recognizance, bail or judgment, in the name or
names of  any other  person or persons not privy or consenting to
the same,  every such  person or  persons, on conviction thereof,
shall be  fined  not  exceeding  five  thousand  dollars,  or  be
imprisoned not  exceeding seven  years, and whipped not exceeding
thirty-nine stripes,  Provided nevertheless.  that this act shall
not extend  to the acknowledgment of any judgment or judgments by
any attorney  or attorneys,  duly admitted,  for  any  person  or
persons against  whom any such judgment or judgments shall be bad
or given."  Vide, generally,  2 John. Cas. 293;  16 Vin. Ab. 336;
Com. Dig. Action on the case for a deceit, A 3.

   TO PERSUADE,  PERSUADING. To  persuade is  to induce  to  act:
persuading is  inducing-others to  act. lnst. 4, 6, 23;  Dig. 11,
3, 1, 5.

   2. In  the act of the legislature which declared that " if any
person or persons knowingly and willingly shall aid or assist any
enemies at  open war with this state, &c. by persuading others to
enlist for that purpose, &c., he shall be adjudged guilty of high
treason;" the word persuading, thus used;  means to succeed:  and
there must  be an  actual enlistment,  of the person persuaded in
order to bring the, defendant within the intention of the clause.
1 Dall. R. 39;  Carr. Crim. L 237;  4 Car. & Payne, 369 S. C. 1 9
E. C  L. R.  425;   9 Car.  & P.  79;  and article Administering;
vide 2 Lord Raym. 889. It may be fairly argued, however, that the
attempt to  persuade without  success would  be a  misdemeanor. 1
Russ. on Cr. 44.

         Bouvier's Law Dictionary : P1 : Page 91 of 100

  3. In England it has been decided, that to incite and procure a
person to  commit suicide,  is not  a crime  for which  the party
could be tried. 9 C. & P. 79;  38 E. C.  L. R. 42;  M. C. C. 356.
Vide Attempt;  Solicitation.

  PERSUASION. The act of influencing by expostulation or request.
While the  persuasion is confined within those limits which leave
the mind free, it may be used to induce another to make his will,
or even  to make  it in  his own  favor;   but if such persuasion
should so  far operate on the mind of the testator, that he would
be deprived  of a  perfectly free  will,  it  would  vitiate  the
instrument. 3  Serg. &  Rawle, 269;   5  Serg. &  Rawle, 207;  13
Serg. & Rawle, 323.

   PERTINENT, evidence.  Those facts  which  tend  to  prove  the
allegations of  the party  offering them,  are called  pertinent;
those which  have no  such tendency  are  called  impertinent,  8
Toull. n.  22. By  pertinent is  also meant  that which  belongs.
Willes, 319.

    PERTURBATION.  This  is  a  technical  word  which  signifies
disturbance, or infringement of a right. It is usually applied to
the  disturbance   of  pews,   or  seats  in  a  church.  In  the
ecclesiastical  courts   actions  for   these  disturbances   are
technically called  "suits for  perturbation of seat." 1 Phillim.
323. Vide Pew.

   PESAGE, mer.  law. In  England a  toll bearing  this  name  is
charged for  weighing avoirdupois  goods other than wool. 2 Chit.
Com. Law. 16.

  PETIT, sometimes corrupted into petty. A French word signifying
little, small.  It is  frequently used,  as petit  larceny, petit
jury, petit treason.

   PETIT, TREASON,  English law.  The killing  of a master by his
servant;   a hushand  by his  wife;   a superior  by a secular or
religious man.  In the  United States  this  is  like  any  other
murder. See High, Treason;  Treason.

   PETITION. An  instrument of  writing or  printing containing a
prayer from  the person  presenting it, called the petitioner, to
the body  or person  to whom  it is presented, for the redress of
some wrong,  or the grant of some favor, which the latter has the
right to give.

   2. By  the constitution  of the  United States  the right  "to
petition the  government for a redress of grievances," is secured
to the people. Amendm. Art. 1.

  3. Petitions are frequently presented to the courts in order to
bring some  matters before  them. It  is a  general rule, in such
cases, that  an affidavit  should be  made that the facts therein
contained are  true as  far as  known to the petitioner, and that
those facts which he states as knowing from others be believes to
be true.

         Bouvier's Law Dictionary : P1 : Page 92 of 100

   PETITION OF  RIGHT, Eng. law. When the crown is in possession,
or any title is vested in it which is claimed by a subject, as no
suit can  be brought  against the king, the subject is allowed to
file in chancery a petition of right to the king.

   2. This  is in  the, nature of an action against a subject, in
which the petitioner sets out his right to tbat which is demanded
by him,  and prays  the king  to do  him right and justice;  and,
upon  a   due  and  lawful  trial  of  the  right,  to  make  him
restitution. It  is called  a petition of right, because the king
is bound  of right  to answer  it, and  let  the  matter  therein
contained be  determined in a legal way, in like manner as causes
between subject  and subject.  The petition  is presented  to the
king, who  subscribes it,  with these  words, soit  droit fait al
partie, and  thereupon it  is delivered  to the  chancellor to be
executed according  to law.  Coke's Entr.  419, 422 b;  Mitf. Eq.
Pl. 30, 31;  Coop. Eq. Pl. 22, 23.

   PETITORY. That which demands or petitions that which has, the,
quality of a prayer or petition;  a right to demand.

   2. A  petitory suit or action is understood to be one in which
the mere title to property is to be enforced by means of a demand
or petition,  as distin-guished  from a  possessory suit. 1 Kent,
Com. 371.

   3. In  the Scotch  law, petitory  actions are  so called,  not
because something  is sought  to be  awarded by the judge, for in
that sense  all actions must be petitory, but because some demand
is made  upon the defender, in consequence either of the right of
property or  credit in the pursuer. Thus, actions for restitution
of movables,  actions of pounding, of forthcoming, and indeed all
personal actions  upon contracts,  or quasi  contracts, which the
Romans called condictiones, are petitory. Ersk. Inst. b. 4, t. 1,
n. 47.

   PETTY AVERAGE.  A contribution  by the  owners  of  the  ship,
freight and  goods on board, for losses sustained by the ship and
cargo, which consist of small charges. Vide Average.

   PETTY BAG,  Engl. law.  An office  in the  court of  chancery,
appropriated for  suits against  attorneys and  officers  of  the
court;   and for, process and proceedings, by extent on statutes,
recognizances, ad quod damnum and the like. T. de la Ley.

   PETTIFOGGER. One  who pretends  to be a lawyer, but possessing
neither knowledge, law, nor conscience.

   PEW. A  seat in  a church  separated from  all others,  with a
convenient space to stand therein.

   2. It  is an  incorporeal interest  in the real property. And,
although a  man has  the exclusive right to it, yet, it seems, he
cannot maintain  trespass against  a person entering it;  1 T. R.
430;   but case is the proper remedy. 3 B. & Ald. 361;  8 B. & C.
294;  S. C. 15 Eng. C. L. R. 221.

         Bouvier's Law Dictionary : P1 : Page 93 of 100

   3. The right to pews is limited and usufructuary, and does not
interfere with  the right  of the  parish or congregation to pull
down and rebuild the church. 4 Ohio R 541;  5 Cowen's R. 496;  17
Mass. R.  435;   1 Pick. R. 102;  3 Pick. R. 344;  6 S. & R. 508;
9 Wheat.  R. 445;  9 Cranch, R. 52;  6 John. R. 41;  4 Johns. Ch.
R. 596;   6  T. R. 396. Vide Pow. Mortgages, Index, h. t.;  2 Bl.
Com. 429;  1 Chit. Pr. 208, 210;  1 Pow. Mort. 17 n.

   4. In  Connecticut and Maine, and in Massachusetts, (except in
Boston), pews  are considered  real estate:   in  Boston they are
personal chattels. In New Hampshire they are personal property. 1
Smith's St.  145. The  precise nature  of such  property does not
appear to be well settled in New York. 15 Wend. R. 218;  16 Wend.
R. 28;   5 Cowen's R. 494. See Rev. St. Mass. 413;  Conn. L. 432;
10 Mass. R. 323 17 Mass. 438;  7 Pick. R. 138;  4 N. H. Rep. 180;
4 Ohio  R. 515;  4 Harr. & McHen. 279;  Harr. Dig. Ecclesiastical
Law. Vide  Perturbation of seat;  Best on Pres. 111;  Crabb on R.
P. §481 to 497.

   PHAROS. A  light-house or  beacon. It is derived from Phams, a
small island  at the  mouth of  the Nile,  on which  was built  a

  PHYSICIAN. One lawfully engaged in the practice of medicine.

   2. A  physician in  England cannot  recover for  fees, as  his
practice is altogether honorary. Peake C. N. P. 96, 123;  4 T. R.

   3. But  in Pennsylvania, and perhaps in all the United States,
he may  recover for  his services.  5 Serg. & Rawle, 416. The law
implies, therefore,  a contract  on the part of a medical man, as
well as  those of other professions, to discharge their duty in a
skillful and  attentive manner;   and  the law  will redress  the
party injured  by their neglect or ignorance. 1 Saund. 312, R;  1
Ld. Raym. 213;  2 Wils. 359;  8 East, 348.

   4. They  are sometimes  answerable criminally for mala praxis.
(q. v.)  2 Russ.  on Cr.  288;   Ayl. Pand. 213;  Com. Dig. h. t.
Vin. Ab. h. t.

  PHYSIOLOGY, med. jur. The science which treats of the functions
of animals;  it is the science of life.

  2. The legal practitioner who expects to rise to eminence, must
acquire  some  acquaintance  with  physiology.  This  subject  is
intimately connected  with gestation, birth, life and death. Vide
2 Chit. Pr. 42, n.

   PIGNORATION, civil law . This word is used by Justinian in the
title of  the 52d  novel, and  signifies not  only  a  pledge  of
property, but an engagement of the person.

   PICKPOCKET. A  thief;  one who in a crowd or. in other places,
steals from  the pockets or person of another without putting him
in fear. This is generally punished as simple larceny.

         Bouvier's Law Dictionary : P1 : Page 94 of 100

   PIGNORATIVE CONTRACT,  civ. law. A contract by which the owner
of an estate engages it to another for a sum of money, and grants
to him  and his  successors the right to enjoy it, until he shall
be reimbursed, voluntarily, that sum of money. Poth. h. t.

   PIGNORIS CAPIO,  ROM. civil  law. The name given to one of the
legis actiones  of the  Roman law.  It consisted  chiefly in  the
taking. of  a pledge, and was in fact a mode of execution. It was
confined to  special cases  determined  by  positive  law  or  by
custom, such  as taxes,  duties, rents, &c., and is comparable in
some respects  to distresses  at common  law. The proceeding took
place in the presence of a praetor.

   PIGNUS, civil  law. This  word signifies in English, pledge or
pawn. (q.  v.) It is derived, says Gaius, from pugnium, the fist,
because what  is delivered  in pledge is delivered. in hand. Dig.
50, 16,  238, 2.  This is one of several instances of the failure
of  the   Roman  jurists,   when  they   attempted   etymological
explanation of  words. The  elements of pignus (pig) is contained
in the  word pa(n)g-o,  and its  cognate forms. Smith's Dict. Gr.
and Rom. Antiq. h. v.

   PILLAGE. The  taking by  violence of  private  property  by  a
victorious army  from the  citizens or  subjects of  the  enenly.
This, in  modern times,  is seldom  allowed, and  then, only when
authorized by  the commander or chief officer, at the place where
the pillage  is committed.  The property  thus violently taken in
general  belongs   to  the   common  soldiers.  See  Dall.  Dict.
Propriete, art. 3, §5;  Wolff, §1201;  and Booty;  Prize.

   PILLORY, punishment.  wooden machine  in which the neck of the
culprit is inserted.

   2. This  punishment has been superseded by the adoption of the
penitentiary system  in most of the states. Vide 1 Chit. Cr. Law,
797. The  punishment of  standing in  the pillory,  so far as the
same was provided by the laws of the United States, was abolished
by the  act of  congress of February 27, 1839, s. 5. See Baxr. on
the Stat. 48, note.

   PILOT, mer.  law. This  word has  two meanings.  It signifies,
first, an officer serving on board of a ship during the course of
a voyage,  and having  the charge  of the  helm and of the ship's
route;  and, secondly, an officer authorized by law, who is taken
on board  at a  particular place, for the purpose of conducting a
ship through a river, road or channel, or from or into port.

   2.  Pilots  of  the  second  description  are  established  by
legislative enactments at the principal seaports in this country,
and have  rights, and  are bound  to perform duties, agreeably to
the provisions of the several laws establishing them.

   3. Pilots  have been  established in  all maritime  countries.
After due  trial and experience of their qualifications, they are
licensed to  offer themselves  as guides in difficult navigation;

         Bouvier's Law Dictionary : P1 : Page 95 of 100

and they  are usually,  on the other hand, bound to obey the call
of a  ship-master to  exercise their  functions. Abbott  on Ship.
180;   1 John  R. 305;   4  Dall. 205;  2 New R. 82;  5 Rob. Adm.
Rep. 308;   6  Rob. Adm. R. 316;  Laws of Oler. art. 23;  Molloy,
B. 2,  c. 9, s. 3 and 7;  Wesk. Ins. 395;  Act of Congress of 7th
August, 1789, s. 4;  Merl. Repert. h. t.;  Pardessus, n. 637.

   PILOTAGE, contracts.  The compensation  given to  a pilot  for
conducting a vessel in or out of port. Poth. Des Avaries, n. 147.

   2. Pilotage  is a lien on the ship, when the contract has been
made by  the master  or quasi  master of  the ship, or some other
person lawfully authorized to make it;  1 Mason, R. 508;  and the
admiralty  court   has  jurisdiction,  when  services  have  been
performed at sea. Id.;  10 Wheat. 428;  6 Pet. 682;  10 Pet. 108;
and see 1 Pet. Adm. Dec. 227.

   PIN MONEY. Money allowed by a man to his wife to spend for her
own personal comforts.

   2. When  pin money  is given to, but not spent by the wife, on
his death  it belongs  to his estate. 4 Vin. Ab. 133, tit'. Baron
and Feme, E a. 8;  2 Eq. Cas. Ab. 156;  2 P. Wms. 341;  3 P. Wms.
353;  1 Ves. 267;  2 Ves. 190;  1 Madd. Ch. 489, 490.

   3. In  the French  law the  term Epingles,  pins, is  used  to
designate the  present which  is sometimes given by the purchaser
of an  immovable to the wife or daughters of the seller to induce
them to  consent to the sale. This present is not considered as a
part of  the consideration, but a purely voluntary gift. Diet. de
Jur. mot Epingles.

  4. In England it was once adjudged that a promise to a wife, by
the purchaser,  that if  she would not hinder the bargain for the
sale of  the hushand's  lands, he  would give her ten pounds, was
valid,  and   might  be  enforeed  by  an  action  of  assumpsit,
instituted by hushand and wife. Roll. Ab. 21, 22.

   5. It  has been  conjectured that the term pin money, has been
applied to  signify the  provision for  a married  woman, because
anciently there  was a  tax laid  for providing the English queen
with pins. Barringt. on the Stat. 181.

   PINT. A  liquid measure  containing half a quart or the eighth
part of a gallon.

   PIPE, Eng. laid. The name of a roll in the exchequer otherwise
called the  Great Roll.  A measure containing two hogsheads;  one
hundred and twenty-six gallons is also called a pipe.

   PIRACY, crim.  law. A  robbery or forcible depreciation on the
high seas,  without lawful  authority, done animo furandi, in the
spirit and  intention of  universal hostility. 5 Wheat. 153, 163;
3 Wheat.  610;   3 Wash.  C. C. R. 209. This is the definition of
this offence by the law of nations. 1 Kent, Com. 183. The word is
derived from peira deceptio, deceit or deception:  or from peiron
wandering up  and down,  and resting  in no  place, but  coasting
hither and  thither to  do mischief. Ridley's View, Part 2, c. 1,
s. 3.

         Bouvier's Law Dictionary : P1 : Page 96 of 100

   2. Congress may define and punish piracies and felonies on the
high seas,  and offences against the law of nations. Const. U. S.
Art. 1,  s. 7,  n. 10;   5 Wheat. 184, 153, 76;  3 Wheat. 336. In
pursuance of the authority thus given by the constitution, it was
declared by  the act  of congress  of April  30, 1790,  s.  8,  1
Story's Laws  U. S.  84, that  murder or robbery committed on the
high  seas,   or  in  any  river,  haven,  or  bay,  out  of  the
jurisdiction of  any particular  state, or any offence, which, if
committed within  the body of a county, would, by the laws of the
United States, be punishable with death, should be adjudged to be
piracy and  felony, and  punishable with  death. It  was  further
declared, that  if any  captain or  manner should piratically and
feloniously run  away with  a vessel, or any goods or merchandise
of the  value of  fifty dollars;   or should yield up such vessel
voluntarily to  pirates;    or  if  any  seaman  should  forcible
endeavor to hinder his commander from defending the ship or goods
committed to his trust, or should make revolt in the ship;  every
such offender  should be  adjudged a  pirate and  felon,  and  be
punishable with death. Accessaries before the fact are punishable
as  the   principal;     those  after  the  fact  with  fine  and

   3. By  a subsequent  act, passed March 3, 1819, 3 Story, 1739,
made perpetual  by the  act of  May  15,  1820,  1  Story,  1798,
congress declared,  that if any person upon the high seas, should
commit the  crime of  piracy as defined by the law of nations, he
should, on conviction, suffer death.

   4. And  again by the act of May 15, 1820, s. 3, 1 Story, 1798,
congress declared  that if any person should, upon the high seas,
or in  any open  roadstead, or  in any haven, basin or bay, or in
any river  where the  sea ebbs  and flows,  commit the  crime  of
robbery in  or upon any ship or vessel, or upon any of the ship's
company of any ship or vessel, or the lading thereof, such person
should be  adjudged to  be a pirate, and suffer death. And if any
person engaged in any piratical cruise or enterprize, or being of
the crew  or ship's  company of  any piratical  ship  or  vessel,
should land  from such  ship or  vessel, and,  on shore;   should
commit robbery,  such person  should be  adjudged  a  pirate  and
suffer death.  Provided that  the state  in which the offence may
have been  committed should  not be  deprived of its jurisdiction
over the  same, when  committed within  the body of a county, and
that the  courts of the United States should have no jurisdiction
to try  such offenders,  after conviction  or acquittal,  for the
same offence,  in a  state court. The 4th and 5th sections of the
last mentioned act declare persons engaged in the slave trade, or
in forcibly detaining a free negro or mulatto and carrying him in
any ship  or vessel  into slavery, piracy, punishable with death.
Vide 1  Kent, Com.  183;  Beaussant, Code Maritime, t. 1, p. 244;
Dalloz, Diet. Supp. h. t.;  Dougl. 613;  Park's Ins. Index, h. t.
Bac. Ab. h. t.;  16 Vin. Ab. 346;  Ayl. Pand. 42 11 Wheat. R. 39;
1 Gall. R. 247;  Id. 524 3 W. C. C. R. 209, 240;  1 Pet. C. C. R.
118, 121.

         Bouvier's Law Dictionary : P1 : Page 97 of 100

   PIRACY, torts.  By piracy  is understood  the plagiarisms of a
book, engraving  or other  work, for  which a  copyright has been
taken out.

   2. When  a piracy  has been made of such a work, an injunction
will be  granted. 5  Ves. 709;   4  Ves. 681;   12 Ves. 270. Vide

   PIRATE. A  sea robber,  who, to  enrich himself by subtlety or
open force,  setteth upon  merchants and  others trading  by sea,
despoiling them of their loading, and sometimes bereaving them of
life and,  sinking their  ships;   Ridley's View  of the Civ. and
Ecc. Law,  part 2,  c. 1,  s. 8;  or more generally one guilty of
the crime  of piracy.  Merl. Repert. h. t. See, for the etymology
of this word, Bac. Ab. Piracy

   PIRATlCALLY, pleadings. This is a technical word, essential to
charge the  crime of  piracy in  an indictment,  which cannot  be
supplied by  another word,  or any circumlocution. Hawk. B. 1, c.
37, s. 15;  3 Inst. 112;  1 Chit. Cr. Law, *244.

   PISCARY. The  right of  fishing in the waters of another. Bac.
Ab. h. t.;  5 Com. Dig. 366. Vide Fishery.

   PISTAREEN. A small Spanish coin. It is not a coin made current
by the laws of the United States. 10 Pet. 618.

   PIT, fossa.  A hole  dug in  the earth,  which was filled with
water, and  in which women thieves were drowned, instead of being
hung. The punishment of the pit was formerly common in Scotland.

   PLACE, pleading,  evidence. A  particular  portion  of  space;

   2. In  local actions,  the plaintiff must lay his venue in the
county in  which the action arose. It is a general rule, that the
place of  every traversable fact, stated in the pleading, must be
distinctly alleged;   Com.  Dig. Pleader,  c. 20;  Cro. Eliz. 78,
98;   Lawes' Pl.  57;   Bac. Ab. Venue, B;  Co. Litt. 303 a;  and
some place  must be alleged for every such fact;  this is done by
designating the city, town, village, parish or district, together
with the  county in  which the  fact is alleged to have occurred;
and the place thus designated, is called the venue. (q. v.)

   3. In  transitory actions,  the place laid in the declaration,
need not  be the  place where  the cause  of action arose, unless
when required by statute. In local actions, the plaintiff will be
confined in his proof to the county laid in the declaration.

   4. In criminal cases the facts must be laid and proved to have
been committed  within the  jurisdiction of  the  court,  or  the
defendant must be acquitted. 2 Hawk. c. 25, s. 84;  Arcb. Cr. Pl.
40, 95.  Vide, generally, Gould on Pl. c. 3, 102-104;  Arcb. Civ.
Pl. 366;  Hamm. N. P. 462;  1 Saund. 347, n. 1;  2 Saund. 5 n.

   PLACE OF BUSINESS. The place where a man usually transacts his
affairs or  business. When  a man  keeps a  store, shop, counting

         Bouvier's Law Dictionary : P1 : Page 98 of 100

room or  office, independently  and  distinctly  from  all  other
persons, that  is deemed  his place  of business  3 and  when  he
usually transacts his business at the counting house, office, and
the like,  occupied and  used  by  another,  that  will  also  be
considered his  place of business, if he has no independent place
of his  own. But  when he  has no particular right to use a place
for such  private purpose, as in an insurance office, in exchange
room, banking  room, a  post office,  and the like, where persons
generally resort,  these will  not be  considered as  the party's
place of  business, although  he may  occasionally or transiently
transact business  there. 2 Pet. R. 121;  10 John. 501;  11 John.
231;  1 Pet. S. C. R. 582;  16 Pick. 392.

   2. It is a general rule that a notice of the non-acceptance or
non-payment of  a bill,  or of  the non-payment of a note, may be
sent either  to the domicil or place of business of the person to
be affected  by such notice, and the fact that one is in one town
and the  other in  the other  will make  no difference,  and  the
holder has  his election  to send to either. A notice to partners
may be left at the place of business of the firm or of any one of
the partners. Story on Pr. Notes, §312.

  PLACITUM. A plea. This word is nomen generalissimum, and refers
to all  the pleas  in the  case. 1 Saund. 388, n. 6;  Skinn. 554;
S. C.  earth. 834;   Yelv. 65. By placitum is also understood the
subdivisions in  abridgments and  other works,  where  the  point
decided  in  a  case  is  set  down,  separately,  and  generally
numbered. In  citing, it  is abbreviated  as follows:   Vin.  Ab.
Abatement, pl. 3.

  2. Placita, is the style of the English courts at the beginning
of the  record of Nisi Prius;  in this sense, placita are divided
into pleas of the crown, and common pleas.

   3.  The  word  is  used  by  continental  writers  to  signify
jurisdictions, judgments, or assemblies for discussing causes. It
occurs frequently  in the  laws of tae Longobards, in which there
is a  title de his qui ad, placitum venire coguntur. The word, it
has been  suggested, is  derived from  the  German  platz,  which
signifies the  same as  area facta. See Const. Car. Mag. Cap. IX.
Hine-mar's Epist.  227 and 197. The common formula in most of the
capitularies is  "Placuit atque  convenit inter  Francos et corum
proceres," and  hence, says  Dupin, the laws themselves are often
called placita. Dupin, Notions sur le Droit, p. 73.

   PLAGIARISM. The act of appropriating the ideas and language of
another, and passing them for one's own.

  2. When this amounts to piracy the party who has been guilty of
it will  be enjoined,  when the  original author has a copyright.
Vide Copyright;  Piracy;  Quotation;  Pard. Dr. Com. n. 169.

   PLAGIARIUS, civil law. He who fraudulently concealed a freeman
or slave who belonged to another.

  2. The offence itself was called plagium.

         Bouvier's Law Dictionary : P1 : Page 99 of 100

   3. It  differed from  larceny or  theft in  this, that larceny
always implies  that the  guilty party intended to make a profit,
whereas the  plagiarius did  not intend  to make any profit. Dig.
48, 15, 6;  Code, 9,  20, 9 and 15.

   PLAGIUM. Man  stealing, kidnapping. This offence is the crimen
plagii of the Romans. Alis. Pr. Cr. Law, 280, 281.

   PLAINT, Eng.  law. The  exhibiting  of  any  action,  real  or
personal, in  writing;  the party making his plaint is called the

   PLAINTIFF, practice.  He who,  in a  personal action,  seeks a
remedy for  an injury  to his  rights. Ham. on Parties, h. t.;  1
Chit. Pl. Index, h. t.;  Chit. Pr. Index, h. t.;  1 Com. Dig. 36,
205, 308.

  2. Plaintiffs are legal or equitable. The legal plaintiff is he
in whom  the legal  title or  cause  of  action  is  vested.  The
equitable plaintiff  is he  who, not having the legal title, yet,
is in equity entitled to the thing sued for;  for example, when a
suit is  brought by  Benjamin Franklin  for  the  use  of  Robert
Morris, Benjamin  Franklin is  the legal,  and Robert  Morris the
equitable plaintiff.  This is  the usual manner of bringing suit,
when the  cause of  action is not assignable at law, but is so in
equity. Vide Bouv. Inst. Index, h. t.;  Parties to Actions.

   PLAINTIFF IN  ERROR. A party who sues out a writ of error, and
this whether in the court below he was plaintiff or defendant.

  PLAN. The delineation or design of a city, a house or houses, a
garden, a  vessel,  &c.  traced  on  paper  or  other  substance,
representing the  position, and  the relative  proportions of the
different parts.

  2. When houses are built by one person agreeably to a plan, and
one of  them is  Sold to  a person, with windows and doors in it,
the owner of the others cannot shut up those windows, nor has his
grantee any  greater right.  1 Price,  R. 27;  2 Ry. & Mo. 24;  1
Lev. 122;   2  Saund. 114,  n. 4  1 M.  & M. 396;  9 Bing 305;  1
Leigh's N.  P. 559. See 12 Mass:  159;  Hamm. N. P. 202;  2 Hill.
Ab. c.  12, n.  6 to  12;   Com. Dig.  Action on  the case  for a
nuisance, A. See Ancients Lights;  Windows.

  PLANTATIONS. Colonies, (q. v.) dependencies. (q. v.) 1 Bl. Com.
107. In  England, this  word, as it is used in St. 12, II. c. 18,
is never  applied to, any of the British dominions in Europe, but
only to  the colonies  in the  West Indies  and America. 1 Marsh.
Ins, B. 1, c. 3, §2, page 64.

  2. By plantation is also meant a farm.

         Bouvier's Law Dictionary : P1 : Page 100 of 100

                             #  #  #

Return to Table of Contents for

Bouvier's Law Dictionary