P2:
PLAT. A map of a piece of land, in which are marked the courses
and distances of the different lines, and the quantity of land it
contains.
2. Such a plat may be given in evidence in ascertaining the
position of the land, and what is included, and may serve to
settle the figure of a survey, and correct mistakes. 5 Monr. 160.
See 17 Mass. 211; 5 Greenl. 219; 7 Greenl, 61; 4 Wheat. 444;
14 Mass. 149.
PLEA, chancery practice. "A plea," says Lord Bacon, speaking of
proceedings in courts of equity, "is a foreign matter to
discharge or stay the suit." Ord. Chan. (ed. Beam.) p. 26. Lord
Redesdale defines it to be " a special answer showing or relying
upon one or more thisgs as a cause why the suit should be either
dismissed, delayed or barred." Mitf. Tr. Ch. 177; see Coop. Eq.
Pl. 223; Beames' Pl. Eq. 1. A plea is a special answer to a
bill, and differs in this from an answer in the common form, as
it demands the judgment of the court in the first instance,
whether the matter urged by it does not debar the plaintiff from
his title to that answer which the bill requires. 2 Sch. & Lef.
721.
2. Pleas are of three sorts: 1. To the jurisdiction of the
court. 2. To the person of the plaintiff. 3. In bar of the
plaintiff's suit. Blake's Ch. Pr. 112. See, generally, Beames'
Elem. of Pleas in Eq.; Mitf. Tr. Cha. oh. 2, s. 2, pt. 2; Coop.
Eq. Pl. ch. 5; 2 Madd. Ch. Pr. 296 to 331; Blake's Ch. Pr. 112
to 114; Bouv. Inst. Index, h. t.
PLEA, practice. The defendant's answer by matter of fact, to
the plaintiff's declaration.
2. It is distinguished from a demurrer, which opposes matter of
law to the declaration. Steph. Pl. 62.
3. Pleas are divided into plea dilatory and peremptory; and
this is the most general division to which they are subject.
4. Subordinate to this is another division; they are either to
the jurisdiction of the court, in suspension of the action; in
abatement of the writ; or, in bar of the action; the first
three of which belong to the dilatory class, the last is of the
peremptory kind. Steph. Pl. 63; 1 Chit. Pl. 425; Lawes, Pl. 36.
5. The law has prescribed and settled the order of pleading,
which the defendant is to pursue, to wit; 1st. To the
jurisdiction of the court. 2d. To the disability, &c. of the
person. 1st. Of thepla'intiff. 2d. Of the defendant. 3d. To the
count or declaration. 4th. To the writ. 1st. To the form of the
writ; first, Matter apparent on the face of it, secondly, Matter
dehors. 2d. To the action of the writ. 5th. To the action itself
in bar.
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6. This is said to be the natural order of pleading, because
each subsequent, plea admits that there is no foundation for the
former. Such is the English law. 1 Ch. Plead. 425. The rule is
different with regard to the plea of jurisdiction in the courts
of the United States and those of Pennsylvania. 1. Binn. 138;
ld. 219; 2 Dall. 368; 3 Dall. 19; 10 S. & R. 229.
7. - 2. Plea, in its ancient sense, means suit or action, and
it is sometimes still used in that sense; for example, A B was
summoned to answer C D of a plea that he render, &c. Steph. Pl.
38, 39, u. 9; Warr. Law Studies, 272, note n.
8. - 3. This variable word, to plead, has still another and
more popular use, importing forensic argument in a cause, but it
is not so employed by the profession. Steph. Pl. App. note 1.
9. There are various sorts of pleas, the principal of which are
given below.
10. Plea in abatement, is when, for any default, the defendant
prays that the writ or plaint do abate, that is, cease against
him for that time. Com. Dig. Abatement, B.
11. Hence it may be observed, 1st. That the defendant may plead
in Abatement for faults apparent on the writ or plaint itself, or
for such as are shown dehors, or out of the writ or plaint. 2d.
That a plea in, abatement is never perpetual, but only a
temporary plea, in form at least, and if the cause revived, the
plaintiff may sue again.
12. If the defendant plead a plea in abatement, in his plea, he
ought generally to give a better writ to the plaintiff, that is,
show him what other and better writ can be adopted; Com. Dig.
Abatement, I 1; but if the plea go to the matter and substance
of the writ, &c., he need not give the plaintiff another writ.
Nor need he do so when the plea avoids the whole cause of the
action. Id. I 2.
13. Pleas in abatement are divided into those relating, first,
to the disability of the plaintiff or defendant; secondly, to
the count or declaration; thirdly, to the writ. 1 Chit. Pl. 435.
14. - 1. Plea in abatement to the person of the plaintiff.
Pleas of this kind are either that the plaintiff is not in
existence, being only a fictitious person, or dead; or else,
that being in existence, he is under some disability to bring or
maintain the action, as by being an alien enemy; Com. Dig.
Abatement, E 4 Bac. Abr. Abatement, B 3; 1 Chit. Pl. 436; or
the plaintiff is a married woman, and she sues alone. See 3 T. R.
631; 6 T. R. 265.
15. Plea in abatement to the person of the defendant. These
pleas are coverture, and, in the English law, infancy, when the
parol shall demur. When a feme covert is sued, and the objection
is merely that the hushand ought to have been sued jointly with
her; as when, since entering into the contract, or committing
the tort, she has married; she must, when sued alone, plead her
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coverture in abatement, and aver that her hushand is living. 3 T.
R. 627; 1 Chit. Pl. 437 , 8.
16. - 2. Plea in abatement to the count. Pleas of this kind are
for some -uncertainty, repugnancy, or want of form, not appearing
on the face of the writ itself, but apparent from the recital of
it in the declaration only; or else for some variance between
the writ and declaration. But it was always necessary to obtain
oyer of the writ before the pleading of these pleas; and since
oyer cannot now be had of the original writ for the purpose of
pleading them, it seems that they can no longer be pleaded. See
Oyer.
17. Plea in abatement to the form of the writ. Such pleas are
for some apparent uncertainty, repugnancy, or want of form,
variance from the record, specialty, &c., mentioned therein, or
misnomer of the plaintiff or defendant. Lawes' Civ. Pl. 106; 1
Chit. Pl. 440.
18. Plea in abatement to the action of the writ. Pleas of this
kind are pleaded when the action is misconceived, or was
prematurely commenced before the cause of action arose; or when
there is another action depending for the same cause. Tidd's Pr.
579. But as these matters are ground for demurrer or nonsuit, it
is now very unusual to plead them in abatement. See 2 Saund. 210,
a.
19. Plea in avoidance, is one which confesses the matters
contained in the declaration, and avoids the effect of them, by
some new matter which shows that the plaintiff is not entitled to
maintain his action. For example, the plea may admit the contract
declared upon, and show that it was void or voidable, because of
the inability of one of the parties to make it, on account of
coverture, infancy, or the like. Lawes, Pl. 122.
20. Plea in bar, is one that denies that the plaintiff has any
cause of action. 1 Ch. Pl. 459 Co. Litt. 303 b; 6 Co. 7. Or it
is one which shows some ground for barring or defeating the
action; and makes prayer to that effect, Steph. Pl. 70;
Britton, 92. See Bar.
21. A plea in bar is, therefore, distinguished from all pleas
of the dilatory class, as impugning the right of the action
altogether, instead of merely tending to divert the proceedings
to another jurisdiction, or suspend them, or abate the particular
writ. It is in short a substantial and conclusive answer to the
action. It follows, from this property, that in general, it must
either deny all, or some essential part of the averments of fact
in the declaration; or, admitting them to be true, allege new
facts, which obviate and repel their legal effect. In the first
case the defendant is said, in the language of pleading, to
traverse the matter of the declaration; in the latter, to
confess and avoid it. Pleas in bar are consequently divided into
pleas by way of traverse, and pleas by way of confession and
avoidance. Steph. Pl. 70, 71.
22. Pleas in bar are, also divided into general or special.
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General pleas in bar deny or take issue either upon the whole or
part of the declaration, or contain some new matter which is
relied upon by the defendant in his defence. Lawes Pl. 110.
23. Special pleas in bar a re very various, according to the
circumstances of the defendant's case; as, in personal actions,
the defendant may plead any special matter in denial, avoidance,
discharge, excuse, or justification of the matter alleged in the
declaration, which destroys or bars the plaintiff's action; or
he may plead any matter which estops, or precludes him from
averring or insisting on any matter relied upon by the plaintiff
in his declaration. The latter sort of pleas are called pleas in
estoppel. In real actions, the tenant may plead any matter which
destroys and bars the demandant's title; as, a general release.
Id. 115, 116.
24. The general qualities of a plea in bar are, 1. That it be
adapted to the nature and form of the action, and also
conformable to the count. Co. Litt. 303, a 285, b; Bac. Abr.
Pleas, I; 1 Roll. Rep. 216.
2. That it answers all it assumes to answer, and no more. Co.
Litt. 303 a; Com. Dig. Pleader, E 1, 36; 1 Saund. 28, n. 1, 2,
3; 2 Bos. & Pull. 427; 3 Bos. & Pull. 174.
3. In the case of a special plea, that it confess and admit the
fact. 3 T. R. 298; 1 Salk. 394; Carth. 380; 1 Saund. 28, n.
and 14 u. 3 10 Johns. R. 289.
4. That it be single. Co. Litt. 304; Bac. Ab. Pleas, 2 Saund.
K, 1, 2; Com Dig. Plead. E 2; 49, 50; Plowd. Com. 140, d.
5. That it be certain. Com. Dig. Pleader, E 5, 7, 8, 9, 10, 11;
C 41; this Dict. Certainty; Pleading.
6. It must be direct, positive, and not argumentative. See 6
Cranch, 126; 9 Johns. It. 313.
7. It must be capable of trial. 8. It must be true and capable
of proof. See Plea, sham.
25. The parts of a plea in bar may be considered with reference
to,
1. The title of the court in which it is pleaded.
2. The title of the term.
3. The names of the parties in the margin. These, however, do
not constitute any part of the plea. The surnames only are
usually inserted, and that of the defendant precedes the
plaintiff's; as, " Roeats. Doe."
4. The commencement which includes the statement of, 1. The
name of the defendant; 2. The appearance; 3. The defence; see
Defence; 4. The actio non; see dctio non.
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5. The body, which may contain, 1. The inducement; 2. The
protestation; 3. Ground of defence 4. Qua est eadem; 5. The
traverse.
6. The conclusion.
26. Dilatory pleas are such as delay the plaintiff's remedy, by
questioning, not the cause of action, but the propriety of the
suit, or the mode in which the remedy is sought.
27. Dilatory pleas are divided by Sir William Blackstone, into
three kinds: 1. Pleas to the jurisdiction of the court; as,
that the cause of action arose out of the limits of the
jurisdiction of the court, when the action is local. 2. Pleas to
the disability of the plaintiff, or, as they are usually termed,
to' the person of the plaintiff; as, that he is an alien enemy.
3. Pleas in abatement of the writ, or count; these are founded
upon some defect or mistake, either in the writ itself; as, that
the defendant is misnamed in it, or the like; or in the mode in
which the count pursues it; as, that there is some variance or
repugnancy between the count and writ; in which case, the fault
in the count furnishes a cause for abating the writ. 2 Bl. Com.
301 Com. Dig. Abatement, G 1, 8; Id. Pleader, C 14, 15; Bac.
Ab. Pleas, F 7.
28. All dilatory pleas are sometimes called pleas in abatement,
as contradistinguished to pleas to the action; this is perhaps
not strictly proper, because, though all pleas in abatement are
dilatory pleas, yet all dilatory pleas are not pleas in
abatement. Gould on Pl. ch. 2, §35; vide 1 Chit. PI, ch. 6;
Bac. Ab. Abatement, 0; 1 Mass 358; 1 John. Cas. 101. 2. A plea
in discharge, as distinguish ed from a plea in avoidance, is one
which admits the demand, and instead of avoiding the payment or
satisfaction of it, shows that it has been discharged by some
matter of fact. Such are pleas of payment, release, and the like.
30. A plea in excuse, is one which admits the demand or
complaint stated in the declaration, but excuses the
non-compliance of the plaintiff's claim, or the commission of the
act of which he complains, on account of the defendant having
done all in his power to satisfy the former, or not having teen
the culpable author of the latter. A plea of tender is an example
of the former, and a plea of son assault demesne, an instance of
the latter.
31. A foreign plea is one which takes the cause out of the
court where it is pleaded, by showing a want of jurisdiction in
that court. 2 Lill. Pr. Beg. 374; Carth. 402. See the form of
the plea in Lill. Ent. 475.
32. A plea of justification is one in which the defendant
professes purpo sely to have done the acts which are the subject
of the plaiutiff's suit, in order to exercise that right which he
considers he might in point of law exercise, and in the exercise
of which he conceives himself not merely excused, but justified.
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33. A plea puis darrein continuance. Under the ancient law,
there were continuances, i. e. adjournments of the proceedings
for certain purposes, from one day or one term to another; and,
in such cases, there was an entry made on the record, expressing
the ground of the adjournment, and appointing the parties to
reappear at a given day.
34. In the interval between such continuance and the day
appointed, the parties were of course out of court, and
consequently not in a situation to plead. But it sometimes
happened, that after a plea had been pleaded, and while the
parties were out of court, in consequence of such continuance, a
new matter of defence arose, which did not exist, and which the
defendant had consequently no opportunity to plead, before the
last continuance. This new defence he was therefore entitled, at
the day given for his reappearance, to plead as a matter that had
happened after the last continuance, puis darrein continuance. In
the same cases that occasioned a continuance in the ancient
common Iaw, but in no other, a continuance shall take place. At
the time indeed, when the pleadings are filed and delivered, no
record exists, and there is, therefore, no entry at that time,
made on the record, of the award of a continuance; but the
parties are, from the day when, by the ancient practice, a
continuance would have been entered, supposed to be out of court,
and the pleading is suspended, till the day arrives to which, by
the ancient, practice, the continuance would extend. At that day,
the defendant is entitled, if any new matter of defence has
arisen in the interval, to plead it according to the ancient
plan, puis darrein continuance.
35. A plea puis darrein continuance is not a departure from,
but is a waiver of the first plea, and is always headed by way of
substitution for it, on which no proceeding is afterwards had. 1
Salk. 178; 2 Stran. 1195 Hob. 81; 4 Serg. & Rawle, 239. Great
certainty is requisite in pleas of this description. Doct. Pl.
297; Yelv. 141; Cro. Jac. 261; Freem. 112; 2 Lutw. 1143; 2
Salk. 519; 2 Wils. 139; Co. Entr. 517 b. It is not sufficient
to say generally that after the last continuance such a thing
happened, but the day of the continuance must be shown, and also
the time and place must be alleged where the matter of defence
arose. Id. ibid.; Bull. N. P. 309.
36. Pleas puis darrein continuance are either in bar or
abatement; Com. Dig. Abatement, I 24; and are followed, like
other pleas, by a replication and other pleadings, till issue is
attained upon them such pleas must be verified on oath before
they are allowed. 2 Smith's R. 396; Freem. 352; 1 Strange, 493.
37. A sham plea is one which is known to the pleader to be
false, and is entered for the purpose of delay. There are certain
pleas of this kind, which, in consequence of their having been
long and frequently used in practice, have obtained toleration
from the courts; and, though discouraged, are tacitly allowed;
as, for example, the common plea of judgment recovered, that is,
that judgment has been already recovered by the plaintiff, for
the same cause of action. Steph. on Pleading, 444, 445; 1 Chit.
Pl. 505, 506.
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38. Plea in suspension of the action. Such a plea is one which
shows some ground for not proceeding in the suit at the present
period, and prays that the pleading may be stayed, until that
ground be removed. The number of these pleas is small. Among them
is that which is founded on the nonage of the parties, and termed
parol demurrer. Stephen on Pleading, 64. See, generally, Bac.
Abr. Pleas, Q; Com. Dig. Abatement, I 24, 34; Doct, Pl. 297;
Bull. N. P. 309; Lawes Civ. Pl. 173; 1 Chit. Pl. 634,; Steph.
Pl. 81; Bouv. Inst. Index, h. t.
TO PLEAD. The formal entry of the defendant's defence on the
record. In a popular sense, it signifies the argument in a cause,
but it is not so used by the profession. Steph. Pl. Appex. note
I; Story, Eq. Pl. §5, note.
PLEADING, practice. The statement in a logical, and legal form,
of the facts which constitute the plaintiff's cause of action, or
the defendant's ground of defence; it is the formal mode of
alleging that on the record, which would be the support, or the
defence of the party in evidence. 8 T. R. 159; Dougl. 278; Com.
Dig. Pleader, A; Bac. Abr. Pleas and Pleading; Cowp. 682-3. Or
in the language of Lord Coke, good pleading consists in good
matter pleaded in good form, in apt time, and due order. Co. Lit.
303. In a general sense, it is that which either party to a suit
at law alleges for himself in a court, with respect to the
subject-matter of the cause, and the mode in which it is carried
on, including the demand which is made by the plaintiff; but in
strictness, it is no more than setting forth those facts or
arguments which show the justice or legal sufficiency of the
plaintiff's demand, and the defendant's defence, without
including the statement of the demand itself, which is contained
in the declaration or count. Bac. Abr. Pleas and Pleading.
2. The science of pleading was designed only to render the
facts of each party's case plain and intelligible, and to bring
the matter in dispute between them to judgment. Steph. Pl. 1. It
is, as has been well observed, admirably calculated for analyzing
a cause, and extracting, like the roots of an equation, the true
points in dispute; and referring them with all imaginable
simplicity, to the court and jury. 1 Hale's C. L. 301, n
3. The parts of pleading have been considered as arrangeable
under two heads; first, the regular, or those which occur, in
the ordinary course of a suit; and secondly, the irregular, or
collateral, being those which are occasioned by mistakes in the
pleadings on either side.
4. The regular parts are, 1st. The declaration or count. 2d.
The plea, which is either to the jurisdiction of the court, or
suspending the action, a's in the case of a parol demurrer, or in
abatement, or in bar of the action, or in replevin, an avowry or
cognizance. 3d . The replication, and, in case of an evasive
plea, a new assignment, or in replevin the plea in bar to the
avowry or cognizance. 4th. The rejoinder, or, in replevin, the
replication to the plea in bar. 5th. The sur-rejoinder, being in
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replevin, the rejoinder. 6th. The rebutter. 7th. The
sur-rebutter. Vin. Abr. Pleas and Pleading, C; Bac. Abr. Pleas
and Pleadings, A. 8th. Pleas puis darrein continuance, when the
matter of defence arises pending the suit.
6. The irregular or collateral parts of Pleading are stated to
be, 1st. Demurrers to Illly art of the pleadings above mentioned.
2dly. Demurrers to evidence given at trials. 3dly. Bills of
exceptions. 4thly. Pleas in scire facias. And, 5thly. Pleas in
error. Vin. Abr. Pleas and Pleadings, C.; Bouv. Inst. Index, h.
t.
PLEADING, SPECIAL. By special pleading is meant the allegation
of special or new matter, as distinguished from a direct denial
of matter previously alleged on the opposite side. Gould on Pl.
c. 1, s. 18.
PLEAS OF THE CROWN, Eng. law. This phrase is now employed to
signify criminal causes in which the king is a party. Formerly it
signified royal causes for offences of a greater magnitude than
mere misdemeanors. These were left to be tried in the courts of
the barons, whereas the greater offences, or royal causes, were
to be tried in the king's courts, under the appellation of pleas
of the crown. Robertson's Hist. of Charles V., vol. 1, p. 48.
PLEAS POLL, Engl. practice. A record which contains the
declaration, plea, replication, rejoinder, and other pleadings,
and the issue. Eunom. Dial. 2, §29, p. 111.
PLEBEIAN. One who is classed among the common people, as
distinguished fromthe nobles. Happily in this country the order
of nobles does not exist.
PLEBEIANS. One of the divisions of the people in ancient Rome;
that class which was composed of those who were not nobles nor
slaves. Vide Smith's Dic. Gr. & Rom. Antiq. art. Plebes.
PLEBISCIT, civil law. This is an anglicised word from the Latin
plebiscitum, which is composed or derived from plebs and scire,
and signifies, to establish or ordain.
2. A plebiscit was a law which the people, separated from the
senators and the patricians, made on the requisition of one of
their magistrates, that is, a tribune. Inst. 1, 2, 4.
PLEDGE or PAWN, contracts. These words seem indifferently used
to convey the same idea. Story on Bailm. §286.
2. In the civil code of Louisiana, however, they appear not to
have exactly the same meaning. It is there said that pledges are
of two kinds, namely, the pawn, and the antichresis. Louis'.
Code, art. 3101.
3. Sir William Jones defines a pledge to be a bailment of goods
by a debtor to his creditor, to be kept till the debt is
discharged. Jones' Bailm. 117; Id. 36. Chancellor Kent, 2 Kent's
Com. 449, follows the same definition, and see 1 Dane's Abr. c.
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17, art. 4. Pothier, De Nantissement, art. prelim. 1, defines it
to be a contract by which a debtor gives to his creditor a thing
to detain as security for his debt. The code Napoleon has adopted
this definition, Code Civ. art. 2071, and the Civil Code of
Louisiana has followed it. Louis. Code, 3100. Lord Holt's
definition is, when goods or chattels are delivered to another as
a pawn, to be security for money borrowed of him by the bailor -
and this, he adds, is called in Latin vadium, and in English, a
pawn or pledge. Ld. Raym. 909, 913.
4. The foregoing definitions are sufficiently descriptive of
the nature of a pawn or pledge but they are in terms limited to
cues where a thing is given as a security for a debt; but a pawn
may well be made as security for any other engagement. 2 Bulst.
306; Pothier, De Nantissement, n. 11. The definition of Domat
is, therefore, more accurate, because it is more comprehensive,
namely, that it is an appropriation of the thing given for the
security of an engagement. Domat, B. 3, tit. 1, §1, n. 1. And,
according to Judge Story, it may be defined to be a bailment of
personal property, as security for some debt or engagement. Story
on Bailm. §286.
5. The term pledge or pawn is confined to personal property;
and where real or personal property is transferred by a
conveyance of the title, as a security, it is commonly
denominated a mortgage.
6. A mortgage of goods is, in the common law, distinguishable
from a mere pawn. By a grant or a conveyance of goods in gage or
mortgage, the whole legal title passes conditionally to the
mortgagee; and if not redeemed at the time stipulated, the title
becomes absolute at law, though equity will interfere to compel a
redemption. But in a pledge a special property only passes to the
pledges, the general property remaining in the pledger. 1 Atk.
167; 6 East, 25; 2 Caines' C. Err. 200; 1 Pick. 889; 1 Pet.
S. C. B. 449 2 Pick. R. 610; 5 Pick. R. 60; 8. Pick. R. 236; 9
Greenl. R. 82; 2 N. H. Rep. 13; 5 N. H. Rep. 545; 5 John. R.
258; 8 John. R. 97; 10 John. R. 471; 2 Hall, R. 63; 6 Mass.
R. 425; 15 Mass. R. 480. A mortgage may be without possession,
but a pledge cannot be without possession. 5 Pick. 59, 60; and
see 2 Pick. 607.
7. Things which are the subject of pledge or pawn are
ordinarily goods and chattels; but money, negotiable
instruments, choses in action, and indeed any other valuable
thing of a personal nature, such as patent-rights and
manuscripts, may, by the common law, be delivered in pledge. 10
Johns. R. 471, 475; 12 Johns. R. 146; 10 Jonhs. R. 389; 2
Blackf. R. 198; 7 Greenl. R. 28; 2 Taunt. R. 268; 13 Mass.
105; 15 Mass. 389; Id. 534; 2 Caines' C. Err. 200; 1 Dane's
Abr. ch. 17, art. 4, § ii. See Louis. Code, art. 3121.
8. It is of the essence of the contract, that there should be
an actual delivery of the thing. 6 Mass. 422; 15 Mass. 477 14
Mass. 352; 2 Caines' C. Err. 200; 2 Kent's Com. 452; Bac. Abr.
Bailment, B; 2 Rolle R. 439; 6 Pick. R. 59, 60; Pothier, De
Nantissement, n. 8, 9; Louis. Code, 3129. What will amount to a
delivery, is matter of law. See Delivery.
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9. It is essential that the thing should be delivered as a
security for some debt or engagement. Story on Bailm. §300. And
see 3 Cranch, 73; 7 Cranch, 34; 2 John. Ch. R. 309; 1 Atk.
236; Prec. in Ch. 419; 2 Vern. 691; Gilb. Eq. R. 104; 6 Mass.
339; Pothier, Nantissement, n. 12; Civ. Code of Lo. art. 3119;
Code Civ. art. 2076.
10. In virtue of the pawn the pawnee acquires, by the common
law, a special property in the thing, and is entitied to the
possession of it exclusively, during the time and for the objects
for which it is pledged. 2 Bl. Com. 396; Jones' Bailm. 80; Owen
R. 123, 124; 1 Bulst. 29; Yelv. 178 Cro. Jac. 244; 2 Ld. Raym.
909, 916; Bac. Abr. Bailment, B; 1 Dane's Abr. ch. 17, art. 4,
SSSS 1, 6; Code Civ. art. 2082; Civ. Code of Lo. art. 3131. And
he has a right to sell the pledge, when there has been a default
in the pledger in complying with his engagement. Such a default
does not divest the general property of the pawner, but still
leaves him a right of redemption. But if the, pledge is not
redeemed within the stipulated time, by a due performance of the
contract for which it is a security, the pawnee has then a right
to sell it, in order to have his debt or indemnity. And if there
is no stipulated time for the payment of the debt, but the pledge
is for an indefinite period, the pawnee has a right, upon
request, to a prompt fulfilment of the agreement; and if the
pawner refuses to comply, the pawnee may, upon demand and notice
to the pawner, require the pawn to be sold. 2 Kent's Com. 452;
Story on Bailm. 308.
11. The pawnee is bound to use ordinary diligence in keeping
the pawn, and consequently is liable for ordinary neglect in
keeping it. Jones'-Bailm. 75; 2 Kent's Com. 451; 1 Dane's Abr.
ch. 17, art. 12; 2 Ld. Raym, 909, 916; Domat B 1, tit. 1, §4,
n. 1.
12. The pawner has the right of redemption. If the pledge is
conveyed by way of mortgage, and thus passes the legal title,
unless he redeems the pledge at a stipulated time, the title of
the pledge becomes absolute at law; and the pledger has no
remedy at law, but only a remedy in equity to redeem. 2 Ves. Jr.
378; 2 Caines' C. Err. 200. If, however, the transaction is not
a transfer of ownership, but a mere pledge, as the pledger has
never parted with the general title, he may, at law, redeem,
notwithstanding he has not strictly complied with the condition
of his contract. Com. Dig. Mortgage, B; 1 Pow. on Mortg. by
Coventry & Land. 401, and notes, ibid. See further, as to the
pawner's right of redemption, Story on Bailm. §§345 to 349.
13. By the act of pawning, the pawner enters into an implied
agreement or warranty that he is the owner of the property
pawned, and that he has a good right to pass the title. Story on
Bailm. §354.
14. As to the manner of extinguishing the contract of pledge or
mortgage of personal property, see Story on Bailm. 359 to 366.
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PLEDGE, contracts. He who becomes security for another, and, in
this sense, every one who becomes bail for another is a pledge. 4
Inst. 180 Com. Dig. B. See Pledges.
PLEDGER. The same as pawner. (q. v.)
PLEDGEE. The same as pawnee. (q. v.)
PLEDGES, pleading. It was anciently necessary to find pledges or
sureties to prosecute a suit, and the names of the pledges were
added at the foot of the declaration; but in the course of time
it became unnecessary to find such pledges because the plaintiff
was no longer liable to be amerced, pro falsa clamora, and the
pledges were merely nominal persons, and now John Doe and Richard
Roe are the universal pledges; but they may be omitted
altogether; 1 Tidd's. Pr. 455; Arch. Civ. Pl. 171; or inserted
at any time before judgment. 4 John. 190.
PLEGIIS ACQUIETANDIS, WRIT DE. The name of an ancient writ in
the English law, which lies where a man becomes pledge or surety
for another to pay
a certain sum of money at a certain day; after the day, if the
debtor does not pay the debt, and the. surety be compelled to
pay, he shall have this writ to compel the debtor to pay the
same. F. N. B. 321.
PLENA PROBATIO. A term used in the civil law, to signify full
proof, in contradistinction to semi-plena probatio, which is only
a presumption. Code, 4, 19, 5, &c. 1 Greenl. Ev. §119.
PLENARTY, eccl. law. Signifies that a benefice is full. Vide
Avoidance.
PLENARY. Full, complete.
2. In the courts of admiralty, and in the English
ecclesiastical courts, causes or suits in respect of the
different course of proceeding in each, are termed plenary or
summary. Plenary, or full and formal suits, are those in which
the proceedings must be full and formal: the term summary is
applied to those causes where the proceedings are more succinct
and less formal. Law's Oughton, 41; 2 Chit. Pr. 481.
PLENE ADMINISTRAVIT, pleading.
A plea in bar entered by an executor or administrator by which
he affirms that he had not in his possession at the time of the
commencement of the suit, nor has had at any time since any goods
of the deceased to be administered; when the plaintiff replies
that the defendant had goods, &c., in his possession at that
time, and the parties join issue, the burden of the proof will be
on the plaintiff. Vide 15 John. R. 323; 6 T. R. 10; 1 Barn. &
Ald. 254; 11 Vin. Ab. 349; 12 Vin. Ab. 185; 2 Phil. Ev. 295;
3 Saund. (a) 315, n. 1; 6 Com. Dig. 311.
PLENE ADMINISTRAVIT PRAETER. This is the usual plea of plene
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administravit, except that the defendant admits a certain amount
of assets in his hands.
PLENE COMPUTAVIT, pleading. A plea in an action of account
render, by which the defendant avers that he has fully accounted.
Bac. Ab. Accompt, E. This plea does not admit the liability of
the defendant to account. 15 S. & R. 153.
PLENIPOTENTIARY. Possessing full powers; as, a minister
plenipotentiary, is one authorized fully to settle the matters
connected with his mission, subject however to the ratification
of the government by which he is authorized. Vide Minister.
PLENUM DOMINIUM. The unlimited right which the owner has to use
his property as he deems proper, without accountability to any
one.
PLOUGH-BOTE. An allowance made to a rural tenant, of wood
sufficient for ploughs, harrows, carts, and other instruments of
hushandry.
PLOUGH-LAND, old Eng. law. An uncertain quantity of land; but,
according to some opinions, it contains one hundred and twenty
acres. Co. Litt. 69 a.
TO PLUNDER. The capture of personal property on land by a
public enemy, with a view of making it his own. The property so
captured is called plunder. See Booty; Piize.
PLUNDERAGE, mar. law. The embezzlement of goods on board of a
ship, is known by the name of plunderage.
2. The rule of the maritime law in such cases is, that the
whole crew shall be responsible for the property thus embezzled,
because there must be some negligence in finding out the
depredator. Abbott on Ship. 457; 3 John. Rep. 17; 1 Pet. Adm.
Dee. 243; 1 New Rep. 347; 1 Pet. Adm. Dee. 200, 239.
PLURAL. A term used in grammar, which signifies more than one.
2. Sometimes, however, it may be so expressed that it means
only one, as, if a man were to devise to another all he was
worth, if he, the testator, died without children, and he died
leaving one child, the devise would not take effect. See Dig. 50,
16, 148; Id. 35, 1, 101, 1; Id. 3 1, 17, 4 Code, 6, 49, 6, 2;
Shelf. on L 559, 589. See Singular.
PLURALITY, government. The greater number of votes given at an
election; it is distinguished from a majority, (q. v.) which is
a plurality of all the votes which might have been given; though
in common parlance majority is used in the sense here given to
plurality.
PLURIES, practice. A term by which a writ issued subsequently
to an alias of the same kind, is denominated.
2. The pluries writ is made by adding after we command you, the
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words, " as often times we have commanded you." This is called
the first pluries, the next is called the second pluries, &c.
POINDING, Scotch. law. That diligence, affecting movable
subjects, by which their property is carried directly to, the
creditor. Poinding is real or personal. Ersk. Pr. L. Scot. 3, 6,
11.
POINDING, PERSONAL, Scotch law. Poinding of the goods belonging
to the debtor; and of those goods only.
2. It may have for its warrant either letters of horning,
containing a clause for poinding, and then it is executed by
messengers; or precepts of poinding, granted by sheriffs,
commissaries, &c., which are executed by their proper officers.
No cattle pertaining to the plough, nor instruments of tillage,
can be poinded in the time of laboring or tilling the ground,
unless where the debtor, has no other goods that may be poinded.
Ersk. Pr. L. Soot. 3, 6, 11. See Distress, to which this process
is somewhat similar.
POINDING, REAL, or poinding of the ground, Scotch law. Though
it be properly a diligence, this is generally considered by
lawyers as a species of real action, and is so called to
distinguish it from personal poinding, which is founded merely on
an obligation to pay.
2. Every debitum fundi, whether legal or conventional, is a
foundation for this action. It is therefore competent to all
creditors in debts which make a real burden on lands. As it
proceeds on a, real right, it may be directed against all goods
that can be found on the lands burdened but, 1. Goods brought
upon the ground by strangers are not subject to this diligence.
2. Even the goods of a tenant cannot be poinded for more than his
term's rent, Ersk. Pr. L. Scot. 4, 1, 3.
POINT, practice. A proposition or question arising in a case.
2. It is the duty of a judge to give an opinion on every point
of law, properly arising out of the issue, which is propounded to
him. Vide Resolution.
POINT RESERVED. A point or question of law which the court, not
being fully satisfied how to decide, in the hurried trial of a
cause, rules in favor of the party offering it, but subject to
revision on a motion for a new trial. If, after argument, it be
found to have been ruled correctly, the verdict is supported; if
otherwise, it is set aside .
POINTS, construction. Marks in writing and in print, to denote
the stops that ought to be made in reading, and to point out the
sense.
2. Points are not usually put in legislative acts or in deeds:
Eunom. Dial. 2, §33, p. 239; yet, in construing them, the courts
must read them with such stops as will give effect to the whole.
4 T. R. 65.
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3. The points are the comma, the semi-colon, the colon, the
full point, the point of interrogation and exclamation. Barr. on
the Stat. 294, note; vide Punctuation.
POISON, crim. law. Those substances which, when applied to the
organs of the body, are capable of altering or destroying, in a
majority of cases, some or all of the functions necessary to
life, are called poisons. 3 Fodere, Traite de Med. Leg. 449;
Guy, Med. Jur. 520.
2. When administered with a felonious intent of committing ,
murder, if. death ensues, it is murder the most detestable,
because it can of all others, be least prevented by manhood or
forethought. It is a deliberate act necessarily implying malice.
1 Russ. Cr. 429. For the signs which indicate poisoning, vide 2
Beck's Med. Jurisp. ch. 16, p. 236, et seq.; Cooper's Med.
Jurisp. 47; Ryan's Med. Jurisp. ch. 15, p. 202, et seq.;
Traill, Med. Jur. 109.
POLE. A measure of length, equal to five yards and a half. Vide
Measure.
POLICE. That species of superintendence by magistrates which
has principally for its object the maintenance of public
tranquillity among the citizens. The officers who are appointed
for this purpose are also called the police.
2. The word police has three significations, namely; 1. The
first relates to the measures which are adopted to keep order,
the, laws aud ordinances on cleanliness, health, the markets, &c.
2. The second has for its object to procure to the authorities
the means of detecting even the smallest attempts to commit
crime, in order that the guilty may be arrested before their
plans are carried into execution, and delivered over to the
justice of the country. 3. The third comprehends the laws,
ordinances and other measures which require the citizens to
exercise their rights in a particular form.
3. Police has also been divided into administrative police,
which has for its object to maintain constantly public order in
every part of the general administration; and into judiciary
police, which is intended principally to prevent crimes by
punishing the crim inals. Its object is to punish crimes which
the administrative police has not been able to prevent.
POLICE JURY. In Louisiana this name is given. to certain
officers who collectively exercise jurisdiction in certain cases
of police as levying taxes, regulating roads,
POLICY OF INSURANCE, contracts. An instrument in writing by
which the contract of insurance is effected and reduced into
form.
2. The term policy of insurance, or as surance, as it is
sometimes called, is derived from the Italian di olizza di
assecurazione, or di securanza, or securta; and in that language
signifies a tote or bill of security or indemnity.
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3. The policy is always considered as being made upon an
executed consideration, namely, the payment or security for the
payment of the premium, and contains only the promise of the
underwriters, without anything in nature of a counter promise on
the part of the insured. The policy may be effected by the owner
of the property insured, his broker or agent.
4. As to its form, the policy has been considered in courts of
law as an absurd and incoherent instrument; 4 T. R. 210; but
courts of justice have always construed it according to the
intention of the parties, and so that the indemnity of the
insured, dud the advancement of trade, which are ,the great
objects of insurance, may be attained. It should contain, 1. The
names of the parties. 2. The name of the vessel insured, in order
to identify it; but to prevent the ill consequence that might
result from a mistake in the name of the vessel or master, there
are usually inserted in policies these words, " or by whatsoever
name or names the same ship or the master thereof is, or shall
be, named or called." 3. A Specification of the subject-matter,
of the insurance, whether it be goods, ship, freight,
respondentia or bottomry securities, or other things. Marsh. Ins.
315; 3 Mass. Rep. 476. 4. A description of the voyage, with the
commencement and end of the risk. 5. A statement of the perils
insured against. 6. A power in the insured to save goods in case
of misfortune, without violating the policy. 7. The promise of
the insurers, and an acknowledgment of their receipt of the
premium. 8. The common memorandum. 9. The date and subscription.
5. Policies, with reference to the reality of the interest
insured, are distinguished into interest and wager policies;
with reference to the amount of interest, into open and valued.
6. An interest policy, is where the insured has a real,
substantial, assignable interest in the thing insured; in which
case only it is a contract of indemnity.
7. A wager policy, is a pretended insurance, founded on an
ideal risk, where the insured has no interest in the thing
insured, and can therefore sustain no loss, by the happening of
any of the misfortunes insured against. These policies are
strongly reprobated. 3 Kent, Com. 225.
8. An open policy, is where the amount of the interest of the
insured is not fixed by the policy; but is left to be
ascertained by the insured in case a loss shall happen.
9. A valued policy, is where a value has been set on the ship.
or goods insured, and this value inserted in the policy in the
nature of liquidated damages, to save the necessity of proving it
in case of loss. Marsh. Ins. 287; and see Kent, Com. Lecture 48;
Marsh. Ins. ch. 8; 16 Vin. Ab. 402; 1 Supp. to Ves. jr. 305;
Park. Ins. 1, 14; Westcott, Ins. 400; Pardes. h. t.; Poth. h.
t.; Boulay Paty, h. t.; Bouv. Inst. Index, h. t.
POLICY, PUBLIC. By public policy is meant that which the law
encourages for the promotion of the public good.
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2. That which is against public policy is generally unlawful.
For example, to restrain an individual from marrying, or from
engaging in business, when the restraint is general, in the first
case, to all persons, and, in the second, to all trades,
business, or occupations. But if the restraint be only partial,
as that Titius shall not marry Moevia, or that Caius shall not
engage in a particular trade in a particular town or, place, the
restraint is not against public policy,, and therefore valid. 1
Story, Eq. Jur. §274. See Newl. Contr. 472.
POLITICAL. Pertaining to policy, or the administration of the
government. Political rights are those which may be exercised in
the formation or administration of the government they are
distinguished from civil, rights, which are the rights which a
man enjoys, as regards other individuals, and not in relation to
the government. A political corporation is one which has
principally for its object the administration of the government,
or to which the powers of government, or a part of such powers,
have been delegated. 1 Bouv. Inst. n. 182, 197, 198.
POLL. A head. Hence poll tax is the name of a tax imposed upon
the people at so much a head. 2. To poll a jury is to require
that each juror shall himself declare what is his verdict. This
may be done at the instance of either party, at any time before
the verdict is recorded. 3 Cowen, R. 23. See 18 John. R. 188. See
Deed Poll.
POLLICITATION, civil law. A pollicitation is a promise not yet
accepted by the person to whom it is made; it differs from a
contract inasmuch as the latter includes a concurrence of
intention in two parties, one of whom promises something to the
other, who accepts on his part of such promise. L. 3, ff.
Pollicit.; Grotius, lib. 2, c. 2; Poth. on Oblig. P. 1, c. 1,
s. 1, art. 1,§2.
2. An offer to guaranty, but not accepted, is not a contract on
which an action will lie. 1 Stark. C. 10; 1 M. & S. 557; 3 B. &
C. 668, 690; 5 D. & R. 512, 586; 7 Cranch, 69; 17 John. R.
134; 1 Mason's R. 323, 371; 16 John. R. 67; 3 Conn. R. 438; 1
Pick. R. 282, 3; 1 B. & A. 681.
POLLS. The place where electors cast in their votes.
POLYANDRY. The state of a woman who has several hushands.
2. Polyandry is legalized only in Tibet. This is inconsistent
with the law of nature. Vide Law of Nature.
POLYGARCHY. A term used to express a government which is shared
by several persons; as, when two brothers succeed to the throne,
and reign jointly.
POLYGAMY, crim. law. The act of a person who, knowing he has
two or more wives, or she has two or more hushands living,
marries another. It differs from bigamy. (q. v.) Com. Dig.
Justices, S 5, Dict. de Jur. h. t.
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POND. A body of stagnant water; a pool.
2. Any one has a right to erect a fish pond; the fish in ii
are considered as real estate, and pass to the heir and not to
the executor. Ow. 20. See Pool; River; Water.
PONE, English practice. An original writ issuing out of
chancery, for the purpose of removing a plaint from an inferior
court into the superior courts at Westminster. The word signifies
"put;" put by gages, &c. The writ is called from the words it
contained when in Latin, "Pone per vadium et salvos plegios," &c.
Put by gage and safe pledges, &c. See F. N. B. 69, 70 a;
Wilkinson on Replevin, Index.
PONTAGE. A contribution towards the maintenance, rebuilding or
repairs of a bridge. The toll taken for this purpose also bears
this name. Obsolete.
POOL. A small lake of standing water.
2. By the grant of a pool, it is said, both the land and water
will pass. Co. Litt. 5. Vide Stagnum; Water. Undoubtedly the
right to fish, and probably the right to use hydraulic works,
will be acquired by such grant. 2 N. Hamps. Rep. 259; An on Wat.
Courses, 47; Plowd. 161; Vaugh. 103; Bac. Ab. Grants, H 3;
Com. Dig. Grant, E 5; 5 Cowen, 216; Cro. Jac. 150; 1 Lev. 44;
Co. Litt. 5.
POPE. The chief of the catholic religion is so called. He is a
temporal prince. He is elected by certain officers called
cardinals, and remains in power during life. In the 9th Collation
of the Authentics it is declared the bishop of Rome hath the
first place of sitting in all assemblies, and the bishop of
Constantinople the second. Ridley's View, part 1, chap. 3, sect.
10.
2. The pope has no political authority in the United States.
POPE'S FOLLY. The name of a small island, situated in the bay
of Passama quoddy, which, it has been decided, is within the
jurisdiction of the United States. 1 Ware's R. 26.
POPULAR ACTION, punishment. An action given by statute to any
one who will sue for the penalty. A qui tam action. Dig. 47, 23,
1.
PORT. A place to which the officers of the customs are
appropriated, and which include the privileges and guidance of
all members and creeks which are allotted to them. 1 Chit. Com.
Law, 726; Postlewaith's Com. Dict. h. t.; 1 Chit. Com. L.
Index, h. t. According to Dalloz, a port is a place within land,
protected against the waves and winds, and affording to vessels a
place of safety. Diet. Supp. h. t. By the Roman law a port is
defined to be locus, conclusus, quo importantur merces, et unde
exportantur. Dig. 50,16, 59. See 7 N. S. 81. 2. A port differs
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from a haven, (q. v.) and includes something more. 1st. It is a
place at which vessels may arrive and discharge, or take in their
cargoes. 2. It comprehends a vale, city or borough, called in
Latin caput corpus, for the reception of mariners and merchants,
for securing the goods, and bringing them to market, and for
victualling the ships. 3. It is impressed with its legal
character by the civil authority. Hale de Portibus Mar. c. 2; 1
Harg. 46, 73; Bac. Ab. Prerogative, D 5; Com. Dig. Navigation,
E; 4 Inst. 148; Callis on Sewers, 56; 2 Chit. Com. Law, 2;
Dig. 60, 16, 59; Id. 43, 12, 1, 13; Id. 47, 10, 15, 7; Id. 39,
4, 15.
PORT-REEVE, Eng. law. In some places in England an officer
bearing this name is the chief magistrate of a port-town. Jacob's
Dict. h. t.
PORT TOLL, Mer. law., By this phrase is understood the money
paid for the privilege of bringing goods into a port.
PORTATICA, Engl. law. The generic name for port duties charged
to ships. Harg. L. Tr. 74.
PORTER. The name of an ancient English officer who bore or
carried a rod before the justices. The door-keeper of the English
parliament also bears this name.
2. One who is employed as a common carrier to carry goods from
one place to another in the same town, is also called a porter.
Such person is in general answerable as a common carrier. Story,
Bailm. §496.
PORTION. That part of a parent's estate, or the estate of one
standing in loco parentis, which is given to a child. 1 Vern.
204. Vide 8 Com. Dig. 539; 16 Vin. Ab. 4321; 1 Supp. to Ves.
Jr. 34, 58, 303, 308; 2 Id. 46, 370, 404.
PORTORIA, civil law. Duties paid in ports on merchandise. Code,
4, 61, 3.
PORTSALES. Auctions were anciently so called, because they took
place in ports.
POSITIVE. Express; absolute; not doubtful. This word is
frequently used in composition.
2. A positive condition is where the thing which is the subject
of it must happen; as, if I marry. It is opposed to a negative
condition, which is where the thing which is the subject of it
must not happen; as, if I do not marry.
3. A positive fraud is the intentional and successful
employment of any cunning, deception or artifice, to circumvent,
cheat, or deceive another. 1 Story, Eq. §186; Dig. 4, 3, 1, 2;
Dig. 2, 14, 7, 9. It is cited in opposition to constructive
fraud. (q. v.)
4. Positive evidence is that which, if believed, establishes
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the truth or falsehood of a fact in issue, and does not arise
from any presumption. It is distinguished from circumstantial
evidence. 3 Bouv. Inst. n. 3057.
POSSE. This word is used substantively to signify a
possibility. For example, such a thing is in posse, that is, such
a thing may possibly be; when the thing is in being, the phrase
to express it is, in esse. (q. v.)
POSSE COMITATUS. These Latin words signify the power of the
county.
2. The sheriff has authority by the common law, while acting
under the authority of the writ of the United States,
commonwealth or people, as the case may be, and for the purpose
of preserving the public peace, to call to his aid the posse
comitatus.
3. But with respect to writs which issue, in the first
instance, to arrest in civil suits, the sheriff is not bound to
take the posse comitatus to assist him in the execution of them:
though he may, if he pleases, on forcible resistance to the
execution of the process. 2 Inst. 193; 3 Inst. 161.
4. Having the authority to call in the assistance of all, it
seems to follow, that he may equally require that of any
individual; but to this general rule there are some exceptions;
persons of infirm health, or who want understanding, minors under
the age of fifteen years, women, and perhaps some others, it
seems, cannot be required to assist the sheriff, and are
therefore not considered as a part of the power of the county.
Vin. Ab. Sheriff, B.
5. A refusal on the part of an individual lawfully called upon
to -assist the officer in putting down a riot is indictable. 1
Carr. & Marsh. 314. In this case will be found the form of an
indictment for this offence.
6. Although the sheriff is acting without authority, yet it
would seem that any person who obeys his command, unless aware of
that fact, will be protected.
7. Whether an individual not enjoined by the sheriff to lend
his aid, would be protected in his interference, seems
questionable. In a case where the defendant assisted sheriff's
officers in executing a writ of replevin without their
solicitation, the court held him justified in so doing. 2 Mod.
244. Vide Bac. Ab. Sheriff, N; Hamm. N. P. 63; 5 Whart. R. 437,
440.
POSSESSED. This word is applied to the right and enjoyment of a
termor or a person having a term, who is said to be possessed,
and not seized. Bac. Tr. 335; Poph. 76; Dy. 369.
POSSESSIO FRATRIS. The brother's possession. This is a
technical phrase which is applied in the English law relating to
descents. By the common law, the ancestor from whom the
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inheritance was taken by descent, must have had actual seisin of
the lands, either by his own entry, or by the possession of his
own, or his ancestor's lessee for years, or by being in the
receipt of rent from the lessee of the freehold. But there are
qualifications as to this rule, one of which arises from the
doctrine of possesio fratris. The possession of a tenant for
years, guardian or brother, is equivalent to that of the party
himself, and is termed in law possessio fratris. Litt. sect. 8
Co. Litt. 15 a; 3 Wils. 516 7 T. R. 386 2 Hill Ab. 206.
2. In Connecticut, Delaware, Georgia, Massachusetts, New
Jersey, New York, Ohio, Pennsylvania, Rhode Island, South
Carolina, Virginia, and probably in other states, the real and
personal estates of intestates are distributed among the heirs,
without any reference or regard to the actual seisin of the
ancestor. Reeve on Des. 377 to 379; 4 Mason's R. 467; 3 Day's
R. 166; 2 Pet. R. 59. In Maryland, New Hampshire, North
Carolina, and Vermont, the doctrine of possessio fratris, it
seems, still exists. 2 Peters' Rep. 625; Reeve on Desc. 377; 4
Kent, Com. 384, 5.
POSSESSION, intern. law. By possession is meant a country which
is held by no other title than mere conquest.
2. In this sense Possession differs from a dependency, which
belongs rightfully to the country which has dominion over it;
and from colony, which is a country settled by citizens or
subjects of the mother country. 3 Wash. C. C. R. 286.
POSSESSION, property. The detention or enjoyment of a thing
which a man holds or exercises by himself or by another who keeps
or exercises it in his name. By the possession of a thing, we
always conceive the condition, in which not only one's own
dealing with the thing is physically possible, but every other
person's dealing with it is capable of being excluded. Thus, the
seaman possesses his ship, but not the water in which it moves,
although he makes each subserve his purpose.
2. In order to complete a possession two things are required.
1st. That there be an occupancy, apprehension, (q. v.) or taking.
2dly. That the taking be with an intent to possess (animus
possidendi), hence persons who have no legal wills, as children
and idiots, cannot possess or acquire possession. Poth. h. It.;
Etienne, h. t. See Mer. R. 358; Abbott on Shipp. 9, et seq. But
an infant of sufficient understanding may lawfully acquire the
possession of a thing.
3. Possession is natural or civil; natural, when a man detains
a thing corporeal, as by occupying a house, cultivating grounds
or retaining a movable in his custody; possession is civil, when
a person ceases to reside in the house, or on the land which he
occupied, or to detain the movable he possessed, but without
intending to abandon the possession. See, as to possession of
lands, 2 Bl. Com. 116; Hamm. Parties, 178; 1 McLean's R. 214,
265.
4. Possession is also actual or constructive; actual, when the
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thing is in the immediate occupancy of the party. 3 Dey. R. 34.
Constructive, when a man claims to hold by virtue of some title,
without having the actual Occupancy; as, when the owner of a lot
of land, regularly laid out, is in possession of any part, he is
considered constructively in possession of the whole. 11 Vern. R.
129. What removal of property or loss of possession will be
sufficient to constitute larceny, vide 2 Chit. Cr. Law, 919; 19
Jurist, 14; Etienne, h. t. Civ. Code of Louis. 3391, et seq.
5. Possession, in the civil law, is divided into natural and
civil. The same division is adopted by the Civil Code of
Louisiana.
6. Natural possession is that by which a man detains a thing
corporeal, as by occupying a house, cultivating ground, or
retaining a movable in his possession. Natural possession is also
defined to be the corporeal detention of a thing, which we
possess as belonging to us, without any title to that possession,
or with a title which is void. Civ. Code of Lo. art. 3391, 3393.
7. Possession is civil, when a person ceases to reside in a
house or on the land which he occupied, or to detain the movable
which he possessed, but without intending to abandon the
possession. It is the detention of a thing, by virtue of a just
title, and under the conviction of possessing as owner. Id. art.
3392, 3394.
8. Possession applies properly only to corporeal things,
movables and immovables. The possession of incorporeal rights,
such as servitudes and other rights of that nature, is only a
quasi. possession, and is exercised by a species of possession of
which these rights are susceptible. Id. art. 3395.
9. Possession may be enjoyed by the proprietor of the, thing,
or by another for him; thus the proprietor of a house possesses
it by his tenant or farmer.
10. To acquire possession of a property, two things are
requisite. 1. The intention of possessing as owner. 2. The
corporeal possession of the thing. Id. art. 3399.
11. Possession is lost with or without the consent of the
possessor. It is lost with his consent, 1. When he transfers this
possession to another with the intention to divest himself of it.
2. When he does some act, which manifests his intention of
abandoning possession, as when a man throws into the street
furniture or clothes, of which he no longer chooses to make use.
Id. art. 3411. A possessor of an estate loses the possession
against his consent. 1. When another expels him from it, whether
by force in driving him away, or by usurping possession during
his absence, aud preventing him from reentering. 2. When the
possessor of an estate allows it to be usurped, and held for a
year, without, during that time, having done any act of
possession, or interfered with the usurper's possession. Id. art.
3412.
12. As to the effects of the purchaser's taking possession, see
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Sugd. Vend. 8, 9; 3 P. Wms. 193; 1 Ves. Jr. 226; 12 Ves. Jr.
27; 11 Ves. Jr. 464. Vide, generally, 5 Harr. & John. 230, 263;
6 Har. & John. 336; 1 Har. & John. 18; 1 Greenl. R. 109; 2
Har. & McH. 60, 254, 260; 3 Bibb, R. 209 1 Har. & McH., 210; 4
Bibb, R. 412, 6 Cowen, R. 632; 9 Cowen, R. 241; 5 Wheat. R.
116, 124; Cowp. 217; Code Nap. art. 2228; Code of the Two
Sicilies, art. 2134; Bavarian Code, B. 2, c. 4, n. 5; Prus.
Code, art. 579; Domat, Lois Civ. liv. 3, t, 7, s. 1; Vin. Ab.
h. t.; Wolff, Inst. §200, and the note in the French
translation; 2 Greenl. Ev. §614, 615; Co. Litt. 57 a; Cro. El.
777; 5 Co. 13; 7 John. 1.
POSSESSOR. He who holds, detains or enjoys a thing, either by
himself or his agent, which he claims as his own.
2. In general the possessor of personal chattels is presumed to
be the owner; and in case of real estate he has a right to
receive the profits, until a title adverse to his possession has
been established, leaving him subject to an action for the mesne
profits. (q. v.)
POSSESSORY ACTION, old Eng. law. A reall action in which the
plaintiff called the demandant, sought to recover the possession
of lands, tenements, and hereditaments. On account of the great
nicety required in its management, and the introduction of more
expeditious methods of trying titles by other actions, it has
been laid aside. Finch's Laws, 257; 3 Bouv. Inst. n. 2640.
2. In Louisiana, by this term is understood an action by which
one claims to be maintained in the possession of an immovable
property, or of a right upon or growing out of it, when he has
been disturbed: or to be reinstated to that possession, when he
has been divested or evicted. Code of Practice, art. 6; 2 L. R.
227, 454.
POSSIBILITY. An uncertain thing which may happen; Lilly's Reg.
h. t.; or it is a contingent interest in real or personal
estate. 1 Mad. Ch. 549.
2. Possibilities are near as when an estate is limited to one
after the death of another; or remote, as that one man shall be
married to a woman, and then that she shall die, and he be
married to another. 1 Fonb. Eq. 212, n. e; l6 Vin. Ab. h. t., p.
460; 2 Co. 51 a.
3. Possibilities are also divided into, 1. A possibility
coupled with an interest. This may, of course, be sold, assigned,
transmitted or devised; such a possibility occurs in executory
devises, and in contingent, springing or executory uses.
4. - 2. A bare possibility, or hope of succession; this is the
case of an heir apparent, during the life of his ancestor. It is
evident that he has no right which he can assign, devise, or
even, release.
5. - 3. A possibility' or mere contingent interest, as a devise
to Paul if he survive Peter. Dane's Ab. c. 1, a 5, §2, and the
cases there cited.
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POST. After. When two or more alienations or descents have
taken place between an original intruder ant or defendant in a
writ of entry, the writ is said to be in the post, because it
states that the tenant had not entry unless after the ouster of
the original intruder. 3 Bl. Com. 182. See Entry, limit of.
POST DATE. To date an instrument a time after that on which it
is made. Vide Date.
POST DIEM. After the day; as a plea of payment post diem,
after the, day when the money became due. Com. Dig. Pleader, 2 W
29.
POST DISEISIN, Engl. law. The name of a writ which, lies for
him who, having recovered lands and tenements by force of a novel
disseisin, is again disseised by a former disseisor. Jacob.
POST ENTRY, maritime law. When a merchant makes an entry on
the importation of, goods, and at the time he is not able to
calculate exactly the duties which he is liable to pay, gave rise
to the practice of allowing entries to be made after the goods
have been weighed, measured or gauged, to make up the deficiency
of the original or prime entry; the entry thus allowed to be
made is called a post entry. Chit. Com. Law, 746.
POST FACTO). after the fact. Vide Ex post facto.
POST LITEM MOTAM. After the commencement of the suit.
2. Declarations or acts of the parties made post litem motam,
are presumed to be made with reference to the suit then pending,
and, for this reason, are not evidence in favor of the persons
making them; while those made before an action has been
commenced, in so me cases, as when a pedigree is to be proved,
may in some cases be considered as evidence. 4 Camp. 401.
POST MARK. A stamp or, mark put on letters in the post office.
2. Post marks are evidence of a letter having passed through
the post office. 2 Camp. 620; 2 B. & P. 316; 15 East, 416; 1
M. & S. 201; 15 Com. R. 206.
POST MORTEM. After death; as, an examination post mortem, is
an examination made of a dead body to ascertain the cause of
death; an inquisition post mortem, is one made by the coroner.
POST NOTES. A species of bank notes payable at a distant
period, and not on demand. 2 Watts & Serg. 468. A kind of bank
notes intended to be transmitted at a distance by post. See 24
Maine, R. 36.
POST NATUS. Literally after born; it is used by the old law
writers to designate the second son. See Puisne; Post-nati.
POST NUPTIAL. Something which takes place after marriage; as a
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post nuptial settlement, which is a conveyance made generally by
the hushand for the benefit of the wife.
2. A post nuptial settlement is either with or without
consideration. The former is valid even against creditors, when
in other respects it in untainted with fraud. 4 Mason, 443; 2
Bailey 477. The latter, or when made without consideration, if
bona fide, and the hushand be not involved at the time, and it be
not disproportionate to his means, taking his debts and situation
into consideration, is valid. 4 Mason, 443.7 See 4 Dall. 304;
Settlement; Voluntary conveyance.
POST OBIT, contract. An agreement, by which the obligor borrows
a certain sum of money and promises to pay a larger sum,
exceeding the lawful rate of interest, upon the death of a
person, from whom he has some expectation, if the obligor be then
living. 7 Mass. R. 119; 6 Madd. R. 111; 5 Ves. 57; 19 Ves.
628.
2. Equity will, in general, relieve a party from these unequal
contracts, as they are fraudulent on the ancestor. See 1 Story,
Eq. §842; 2 P. Wms. 182; 2 Sim. R. 183, 192; 5 Sim. R. 524.
But relief will be granted only on equitable terms, for he who
seeks equity must do equity. 1 Fonb. B. 1, c. 2, §13, note, p; 1
Story, Eq. §344. See Catching Bargain; Macedonian Decree.
POST OFFICE. A place where letters are received to be sent to
the persons to whom they, are addressed.
2. The post office establishment of the United States, is of
the greatest importance to the people and to the government. The
constitution of the United States has invested congress with
power to establish post offices and post roads.. Art. 1, s. 8, n.
7.
3. By virtue of this constitutional authority, congress passed
several laws anterior to the third day of March, 1825, when an
act, entitled "An act to reduce into one the several acts
establishing and regulating the post office department," was
passed. 3 Story, U. S. 1985. It is thereby enacted, §1. That
there be established, at the seat of the government of the United
States, a general post office, under the direction of a
postmaster general. The postmaster general shall appoint two
assistants, and such clerks as may be necessary for the
performance of the business of his office, and as are authorized
by law; and shall procure, and cause to be kept, a seal for the
said office, which shall be affixed to commissions of
postmasters, and used to authenticate all transcripts and copies
which may be required from the department. He shall establish
post offices, and appoint postmasters, at all such places as
shall appear to him expedieut, on the post roads that are, or may
be, established by law. He shall give his assistants, the
postmasters, and all other persons whom he shall employ, or who
may be employed in any of the departments of the general post
office, instructions relative to their duty. He shall provide for
the carriage of the mail on all post roads that are, or may be,
established by law, and as often "he, having regard to the
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productiveness thereof, and other circumstances, shall think
proper. He may direct the route or road, where there are more
than one, between places designated by law for a post road, Which
route shall be considered the post road. He shall obtain, from
the postmasters, their accounts and vouchers for their receipts
and expenditures, once in three months, or oftener, with the
balances thereon arising, in favor of the general post office. He
shall pay all expenses which may arise in conducting the post
office, and in the conveyance of the mail, and all other
necessary expenses arising on the collection of the revenue, and
management of the general post office. He shall prosecute
offences against the post office establishment. He shall, once in
three months, render, to the secretary of the treasury, a
quarterly account of all the receipts and expenditures in the
said department, to be adjusted and settled as other public
accounts. He shall, also, superintend the business of the
department in all tho duties that are, or may be assigned to it:
Provided, That, in case of the death, resignation, or, removal
from office, of the postmaster general, all his duties shall be
performed by his senior assistant, until a successor shall be
appointed, and arrive at the general post office, to perform the
business.
4. - §2. That the postmaster general, and all other persons
employed in the general post office, or in the care, custody, or
conveyance of the mail, shall, previous to entering upon the
duties assigned to them, or the execution of their trusts, and
before they shall be entitled to receive any emolument therefor,
respectively take and subscribe the following oath, or
affirmation, before some magistrate, and cause a certificate
thereof to be filed in the general post office: "I, A B, do
swear or affirm, (as the case may be, that I will faithfully
perform all the duties required of me, and abstain from
everything forbidden by the laws in relation to the establishment
of the post office and post road s within the United States."
Every person who shall be, in any manner, employed in the care,
custody, or conveyance, or mauagement of the mail, shall be
subject to all pains, penalties, and forfeitures, for violating
the injunctions, or neglecting the duties, required of him by the
laws relating to the establishment of the post office and post
roads, whether such person shall have taken the oath or
affirmation, above prescribed, or not.
5. - §3. That it shall be the duty of the postmaster general,
upon the appointment of any postmaster, to require, and take, of
such postmaster, bond, with good and approved security, in such
penalty as he may judge sufficient, conditioned for the faithful
discharge of all the duties of such postmaster, required by law,
or which may be required by any instruction, or general rule, for
the government of the department: Provided, however, That, if
default shall be made by the postmaster aforesaid, at any time,
and the postmaster general shall fail to institute suit against
such post-master, and said sureties, for two years from and after
such default shall be made, then, and in that case, the said
sureties shall not be held liable to the United States, nor shall
suit be instituted against them.
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6. - §4. That the postmaster general shall cause a mail to be
carried from the nearest post office, on any established post
road, to the court house of any county which is now, or may
hereafter be established in any of the states or territories of
the United States, and which is without a mail; and the road on
which such mail shall be transported, shall become a post road,
and so continue, until the transportation thereon shall cease. It
shall for the postmaster general to enter into contracts, for a
term not exceeding four years, for extending the line of posts,
and to authorize the persons, so contracting, as a compensation
for their expenses, to receive during the continuance of such
contracts, at rates not exceeding those for like distances,
established by this act, all the postage which shall arise on all
letters, newspapers, magazines, pamphlets, and packets, conveyed
by any such posts; and the roads designated in such contracts,
shall, during the continuance thereof, be deemed and considered
as post roads, within the provision of this act: and a duplicate
of every such contract shall, within sixty days after the
execution thereof, be lodged in the office of the comptroller of
the treasury of the United States.
7. - §5. That the postmaster general be authorized to have the
mail carried in any steamboat, or other vessel, which shall be
used as a packet in, any of the waters of the United States, on
such terms and conditions as shall be considered expedient:
Provided, That he does not pay more than three cents for each
letter, And more than one half cent for each newspaper, conveyed
in such mail.
8. - §8. That, whenever it shall be made appear, to the
satisfaction of the postmaster general, that any road
established, or which may hereafter be established as a post
road, is obstructed by fences, gates, or tars, or other than
those lawfally used on turnpike, roads to collect their toll, and
not kept in good repair, with proper bridges and ferries, where
the same may be necessary, it shall be the duty of the postmaster
general to report the same to congress, with such information as
can be obtained, to enable congress to establish some other road
instead of it, in the same main direction.
9. - §39. That it shall be the duty of the postmaster general
to report, annually, to congress, every post road which shall
not, after the second year from its establishment, have produced
one-third of the expense of carrying the mail on the same.
10. The act "to change the organization of the post office
department, and to provide more effectually for the settlement of
the accounts thereof," passed July 2, 1836, 4 Shars. cont. of
Story L. U. S. 2464, contains a variety of minute provisions for
the settlement of the revenue of the post office department.
11. By the act of the 3d of March, 1845, various provisions are
made to protect the department from fraud and to prevent the
abuse of franking.
12. Finding roads in use throughout the country, congress has
established, that is, selected such as suited the convenience of
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the government, and which the exigencies of the people required,
to be post roads. It has seldom exercised the power of making new
roads, but examples are not wanting of roads having been made
under the express authority of congress. Story, Const. §1133.
Vide Dead Letter; Jeopardy; Letter; Mail; Newspaper;
Postage; Postmaster; Postmaster general.
POSTAGE. The money charged by law for carrying letters, packets
and documents by mail. By act of congress of March 3, 1851,
Minot's Statute at Large, U. S. 587, it is enacted as follows:
2. - §1. That from and after the thirtieth day of June,
eighteen hundred and fifty-one, in lieu of the rates of postage
now established by law, there shall be charged the following
rates, to with or every single letter in manuscript, or paper of
any kind, upon which information shall be asked for, or
communicated, in writing, or, by marks or signs, conveyed in the
mail for any distance between places within the United State's,
not exceeding three thousand miles, when the postage upon such
letter shall have been prepaid, three cents, and five cents when
the postage thereon shall not have been prepaid; and for any
distance exceeding three thousand miles, double those rates. For
every such, single letter or paper when conveyed wholly or in
part by sea, and to or from a foreign country, for any distance
over twenty-five hundred miles, twenty cents, and for any
distance under twenty-five hundred miles, ten cents, (excepting,
however, all cases where such postages have been or shall be
adjusted at different rates, by postal treaty or convention
already concluded or hereafter to be made;) and for a double
letter there shall be charged double the rates above specified;
and for a treble letter, treble those rates; and for a quadruple
letter, quadruple those rates; and every letter or parcel not
exceeding half an ounce in weight shall be deemed a single
letter, and every additional weight of half an ounce, or
additional weight of less than half an ounce, shall be charged
with an adclitional single postage. And all drop letters, or
letters placed in any post office, not for transmission, but for
delivery only, shall be charged with postage at the rate of one
cent each; and all letters which shall hereafter be advertised
as remaining over or uncalled for in any post office, shall be
charged with one cent in addition to the regular postage, both to
be accounted for as other postages are.
3. - §2. That all newspapers not exceeding three ounces in
weight, sent from the office of publication to actual and bona
fide subscribers, shall be charged with postage as follows, to
wit: All newspapers published weekly only, shall circulate in
the mail free of postage within the county where published, and
that the postage on the regular numbers of a newspaper published
weekly, for any distance not exceeding fifty miles out of the
county where published, shall be five cents per quarter; for any
distance exceeding fifty miles and not exceeding three hundred
miles, ten cents per quarter; for any distance exceeding three
hundred miles and not exceeding one thousand miles, fifteen cents
per quarter; for any distance exceeding one thousand miles and
not exceeding two thousand miles, twenty cents per quarter; for
any distance exceeding two thousand miles and not exceeding four
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thousand miles, twenty-five cents per quarter; for any distance
exceeding four thousand miles, thirty cents per quarter; and all
newspapers published monthly, and sent to actual aud bona fide
subscribers, shall be charged with one-fourth the foregoing
rates; and on all such newspapers published semi-monthly shall
be charged with one-half the foregoing rates; and papers
published semi-weekly shall be charged double those rates;
triweekly, treble those rates; and oftener than tri-weekly, five
times, those rates. And there shall be charged upon every other
newspaper, and each circular not sealed, handbill, engraving,
pamphlet, periodical, magazine, book, and every other description
of printed matter, which shall be unconnected with any manuscript
or written matter, and which it may be lawful to transmit through
the mail, of no greater weight than one ounce, for any distance
not exceeding five hundred miles, one cent; and for each
additional ounce or fraction of an ounce, one cent; for any
distance exceeding five hundred miles and not exceeding one
thousand five hundred miles, double those rates; for any
distance, exceeding one thousand five hundred miles-and not
exceeding two thousand five hundred miles, treble those rates;
for any distance exceeding two thousand five hundred miles and
not exceeding three thousand five hundred miles, four times those
rates; for any distance exceeding three thousand five hundred
miles, five times those rates. Subscribers to all periodicals
shall be required to pay one quarter's postage in advance, and in
all such cases the postage shall be one-half the foregoing rates.
Bound books, and parcels of printed matter not weighing over
thirty-two ounces, shall be deemed mailable matter under the
provisions of this section. And the postage on all printed matter
other than newspapers and periodicals published at intervals not
exceeding three months, and sent from the office of publication,
to actual and bona fide subscribers, to be prepaid; and in
ascertaining the weight of newspapers for the purpose of
determining the amount of postage chargeable thereon, they shall
be weighed when in a dry state, And whenever any printed matter
on which the postage is required by this section to be prepaid,
shall, through the inattention of postmasters or otherwise, be
sent without prepayment, the same shall be charged with double
the amount of postage which would have been chargeable thereon if
the postage had been prepaid; but nothing in this act contained
shall subject to postage any matter which is exempted from the
payment of postage by any existing law, And the postmaster
general, by and with the advice and consent of the president of
the United States, shall be, and he hereby is, authorized to
reduce or enlarge, from time to time, the rates of postage upon
all letters. and other mailable matter conveyed between the
United States and any foreign country for the purpose of making
better postal arrangements with other governments, or
counteracting any adverse measures affecting our postal
intercourse with foreign countries, and postmasters at the office
of delivery are hereby authorized, and it shall be their duty, to
remove the wrappers and envelopes from all printed matter and
pamphlets not charged with letter postage, for the purpose of
ascertaining whether there is upon or connected with any such
printed matter, or in such package, any matter or thing which
would authorize or require the charge of a higher rate of postage
thereon. And all publishers of pamphlets, periodicals, magazines,
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and newspapers, which shall not exceed sixteen ounces in weight,
shall be allowed. to interchange their publications reciprocally,
free of postage: Provided, That such interchange shall be
confined to a single copy of each publication: And provided,
also, That said publishers may enclose in their publications the
bills for subscriptions thereto, without any additional charge
for postage; And provided, further, Thai in all cases where
newspapers shall not contain over three hundred square inches,
they may be transmitted through the mails by the publishers to
bona fide subscribers, at one-fourth the rates fixed by this act.
5. By the act of March 3, 1845, providing for the
transportation of the mail between the United States and foreign
countries, it is enacted by the 3d section, that the rates of
postage to be charged and collected on all letters, packages,
newspapers, and pamphlets, or other printed matter, between the
ports of the United States and the ports of foreign governments
enumerated herein, transported in the United States mail under
the provisions of this act, shall be as follows: Upon all
letters and packages not exceeding one-half ounce in weight,
between any of the ports of the United States aud the ports of
England or France, or any other foreign port not less than three
thousand miles distant twenty-four cents, with the inland postage
of the United States added when sent through the United States
mail to or from the post office at a port of the United States;
upon letters and packets over one-half an ounce in weight, and
not exceeding one ounce, forty-eight cents; and for every
additional half ounce or fraction of an ounce, fifteen cents;
upon all letters and packets not, exceeding one-half ounce, gent
through the United States mail between the ports of the United
States and any of the West India islands, or islands in the Gulf
of Mexico, ten cents; and twenty cents upon letters and packets
not exceeding one ounce; and five cents for every additional
half ounce or fraction of an ounce; upon each newspaper,
pamphlet, and price current, sent in the mail between the United
States and any of the ports and places above enumerated, three
cents, with inland United States postage added when the same is
transported to or from said port of the United States in the
United States mail.
POSTAGE STAMPS. The act of congress, approved March 3, 1847,
section 11, and the act of congress of March 3, 1841, sections 3,
4, provide that, to facilitate the transportation of letters in
the mail, the postmaster general be authorized to prepare
postage, stamps, which, when attached to any letter or packet,
shall be evidence of the payment of the postage, chargeable on
such letter. The same sections declare that any person who shall
falsely or fraudulently make, utter, or, forge any postage stamp,
with the intent to defraud the post office department, shall be
deemed guilty of felony, and be punished by a fine not exceeding
five hundred dollars, or by imprisonment not exceeding five
years, or by both such fine and imprisonment. And if any person
shall use or attempt to use, in pre-payment of postage, any
postage stamp which shall have been used before for like
purposes, such person shall be subject, to a penalty of fifty
dollars for every such offence, to be recovered in the name of
the United States in any court of competent jurisdiction.
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POSTEA, practice. Afterwards. The endorsement on the nisi prius
record purporting to be the return of the judge before whom a
cause is tried, of, what has been done in respect of such record.
It states the day of trial, before what judge, by name, the cause
is tried, and also who is or was an associate of such judge; it
also states the appearance of the parties by their respective
attorneys, or their defaults; and the summoning and choice of
the jury, whether those who were originally summoned, or those
who were tales, or taken from the standers by; it then states
the finding of the jury upon oath, and, according to the
description of the action, and the assessment of the damages with
the occasion thereof, together with the costs.
2. These are the usual matters of fact contained in the postea,
but it varies with the description of the action. See Lee's Dict.
Postea; 2 Lill. P. R. 337; 16 Vin. Abr. 465; Bac. Use of the
Law, Tracts, 127, 5.
3. When the trial is decisive, and neither the law nor the
facts can afterwards be controverted, the postea is delivered by
the proper officer to the attorney of the successful party, to
sign his judgment; but it not unfrequently happens that after a
verdict has been given, there is just cause to question its
validity, in such case the postea remains in the custody of the
court. Eunom. Dial. 2, §33, p. 116.
POSTERIORES. This term was used by the Romans to denote the
descendant in a direct line beyond the sixth degree. It is still
used in making genealogical tables.
POSTERIORITY, rights. Being or, coming after. It is a word of
comparison, the correlative of which is priority; as, when a man
holds lands from two landlords, he holds from his ancient
landlord by priority and from the other by posteriority. 2 Inst.
392.
2. These terms, priority and posteriority, are also used in
cases of liens the first are prior liens, and are to be paid in
the first place; the last are posterior liens, and are not
entitled to payment until the former have been satisfied.
POSTERITY, descents. All the descendants of a person in a
direct line.
POSTHUMOUS CHILD. after the death of its father; or, when the
Caesarian operation is performed, after that of the mother.
2. Posthumous children are entitled to take by descent as if
they had been born at the time of their deceased ancestor. When a
father has made a will without providing for a posthumous child,
such a will is in some states, as in Pennsylvania, revoked pro
tanto by implication. 4 Kent, Com. 506; Dig. 28, 5, 92;
Ferriere, Com. h. t.; Domat, Lois Civiles, part 2 ' liv. 2, t.
1, s. 1: Merl. Rep. h. t.; 2 Bouv. Inst. n. 2158.
POSTILS, postillae. Marginal notes made in a book or writing
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for reference to other parts of the same, or some other book or
writing.
POSTLIMINIUM. That right in virtue of which persons and things
taken by the enemy are restored to their former state, when
coming again under the power of the nation to which they belong.
Vat. Liv. 3, c. 14, s. 204; Chit. Law of Nat. 93 to, 104; Lee
on Captures, ch. 5; Mart. Law of Nat. 305; 2 Wooddes. p. 441,
s. 34; 1 Rob. Rep. 134; 3 Rob. Rep. 236; Id. 97 2 Burr. 683;
10 Mod. 79; 6 Rob. R. 45; 2 Rob. Rep. 77; 1 Rob. Rep. 49; 1
Kent, Com. 108.
2. The jus posiliminii was a fiction of the Roman law. Inst. 1,
12, 5.
3. It is a right recognized by the law of nations, and
contributes essentially to mitigate the, calamities of war. When,
therefore, property taken by the enemy is either recaptured or
rescued from him, by the fellow subjects or allies of the
original owner, it does not become the property of the recaptor
or rescuer, as if it had been a new prize, but it is restored to
the original owner by right of postliminy, upon certain terms.
POSTMAN, Eng. law. A barrister in the court of exchequer, who
has precedence in: motions.
POSTMASTER, or DEPUTY POSTMASTER. An officer of the United
States appointed by the postmaster general to hold his office.
during the, plaasure of the former. Before entering on the duties
of his office, he is required to give bond with surety to be
approved by the postmaster general. Act of 3d March, 1825, s. 3.
12. Every postmaster is required to keep an office in the place
for which he may be appointed; and it is his duty to receive and
forward by mail, without delay, all letters, papers, and packets
as directed; to receive the mails and deliver, at all reasonable
hours, all letters, papers and packets to the persons entitled
thereto.
3. In lieu of commissions allowed deputy postmasters by the
14th section of the act of 3d March, 1845,.the postmaster general
is authorized by the act of March 1, 1847, s. 1, to allow, on the
proceeds of their respective offices, a commission not exceeding
the following rates on the amount received in any one year, or a
due proportion thereof for less-than a year: On a sum not
exceeding one hundred dollars, forty per cent; on a sum over the
first hundred and not exceeding four hundred dollars,
thirty-three and one-third per cent; on a sum over and above the
first four hundred dollars and not exceeding twenty-four hundred
dollars, thirty per cent.; on a sum over twenty-four hundred
dollars, twelve and one-half per cent.; on all sums arising from
the postage on newspapers, magazines, and pamphlets, fifty per
cent.; on the amount of postages on letters or packets received
for distribution, seven per cent.: Provided, That all
allowances, commissions, or other emoluments, shall be subject to
the provisions of the forty-first section of the act which this
is intended to amend; and that the annual compensation therein
limited shall be computed for the fiscal year commencing on the
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first of July and ending the thirtieth of June each year, and
that for any period less than a year the restrictions contained
in said section shall be held to apply in a due proportion for
such fractional period: And, provided further, That the
compensation to any,, deputy postmaster under the foregoing
provisions to be computed upon the receipt at his office of a
larger sum shall in no case fall short of the amount to which he
would be entitled under a smaller sum received at his office.
4. By act of congress approved March 3, 1851, §6, it is
enacted, That to any postmaster whose commissions may be reduced
below the amount allowed at his office for the year ending the
thirtieth day of June, eighteen hundred and fifty-one, and whose
labors may be increased, the postmaster general shall be
authorized, in his discretion, to allow such additional
commissions as be may deem just and proper Provided, That the
whole amount of commissions allowed such postmaster during any
fiscal year, shall not exceed by more than twenty per centum the
amount of commissions at such office for the year ending the
thirtieth day of June, eighteen hundred and fifty-one.
5. Although not subject to all the, responsibilities of a
common carrier, yet a postmaster is liable for all losses and
injuries occasioned by his own default in office. 3 Wils. Rep.
443; Cowp. 754; 5 Burr. 2709; 1 Bell's Com. 468; 2 Kent. Com.
474; Story on Bailm. §463.
6. Whether a postmaster is liable for the acts of his clerks or
servants seems not to be settled. 1 Bell's Com. 468, 9. In
Pennsylvania it has been decided that he is not responsible for
their secret delinquencies, though perhaps he is answerable for
want of attention to the official conduct of his subordinates. 8
Watts. R. 453. Vide Frank; Post Office.
POSTMASTER GENERAL. The chief officer of the post office
department of the United States. Various duties are imposed upon
this officer by the acts of congress of March 3, 1825, and July
2, 1836, which will be found under the articles Mail; Post
Office and Postage.
2. The act of February 20, 1819, 3 Story's L. U. S. 1720, gives
the postmaster general a salary of four thousand dollars per
annum and that of March 2, 1827, 3 Story's L. U. S. 2076,
declares there shall be paid, annually, to the postmaster general
two thousand dollars, in addition to his present salary.
POST NATI. Born after. This term is applied to persons who came
to reside in tho United States after the declaration of
independence. They are generally considered aliens, unless they
become naturalized, or are otherwise so declared, by law. In
Massachusetts, by statutory provision, and in Connecticut, by
decision, a person born abroad, if he went there to reside before
the treaty of peace of the 3d of September, 1783, is considered a
citizen. 2 Pick. R. 394 5 Day, R. 169; 2 Kent, Com. 51, 2.
POSTULATIO, Rom. civ. law. The name given to the first act in a
criminal proceeding. A person who wished to accuse another of a
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crime, appeared before the praetor and asked his authority for
that purpose, designating the person intended. This act was
called postulatio. The postulant (calumniam jurabat) made oath
that he was not influenced by a spirit of calumny, but acted in
good faith, with a view to the public interest. The praetor
received this declaration, at, first made verbally, but
afterwards in writing, and called a libel. The postulatio was
posted lip in the forum, to give public notice of the names of
the accuser and the accused. A second accuser sometimes appeared
and went through the same formalities.
2. Other persons were allowed to appear and join the postulant
or principal accuser. These were said postulare subscriptionem
and were denominated subscriptores. Cic. in Caecil Divin. 15. But
commonly such persons acted concurrently with the postulant, and
inscribed, their names at the time he first appeared. Only one
accuser, however, was allowed to act, and if the first inscribed
did not desist in favor of the second, the right was determined,
after discussion, by judges appointed for the purpose. Cic. in
Verr. I. 6. The preliminary proceeding was called divinatio, and
is well explained, in the oration of Cicero, entitled Divinatio.
Bee Aulus Gellius, Att. Noct. lib. II. cap. 4.
3. The accuser having been determined in this manner, he
appeared, before the praetor, and formally charged the accused by
name, specifying the crime. This was called nominis et criminis,
delatio. The magistrate reduced it to writing, which was called
inscriptio, and the accuser and his adjuncts, if any, signed it,
subscribebant. This proceeding corresponds to the indictment of
the common law.
4. If the accused appeared, the accuser formally charged him
with the crime. If the accused confessed it, or stood mute, he
was adjudged to pay the penalty. If he denied it, the inscriptio
contained his answer, and he was then (in reatu) indicted, (as we
should say) and was called reus, and a day was fixed, ordinarily
after an interval of at least ten days, according to the nature
of the case, for the appearance of the parties. In the case of
Verres, Cicero obtained one hundred and ten days to prepare his
proofs, although he accomplished it in fifty days, and renounced,
as he might do, the advantage of the remainder of the time
allowed him.
5. At the day appointed for the trial the accuser and his
adjuncts or colleagues, the accused, and the judges, were
summoned by the herald of the preator. If the accuser did not
appear, the' case was erased from the roll. If the accused made
default he was condemned. If both parties appeared, a jury was
drawn by the praetor or judex questionis. The jury were called
jurati homines, and the drawing of them sortitio, and they were
taken from a general list made out for the year. Either party had
a right to object to a certain extent to the persons drawn, and
then there was a second drawing called subsortitio, to complete
the number.
6. In some tribunals (quaestiones) the jury were (editi)
produced in equal number by the accuser and the accused, and
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sometimes by the accuser alone, who were objected to or
challenged in different ways, according to the nature of the
case. The number of the jury also varied according to the.
tribunal, (quaestio) they were sworn before the trial began.
Hence they were called jurati.
7. The accusers ana often the subscriptores were heard, and
afterwards the accused, either by himself or by his advocates, of
whom he commonly had several. The witnesses, who swore by
Jupiter, gave their testimony after the discussions or during the
progress of the pleadings of the accuser. In some cases it was
necessary to plead the cause on the third day following the first
hearing, which was called comperendinatio.
8. After the pleadings were concluded the praetor or the judex
quastionis distributed tablets to the jury, upon which each wrote
secretly, either the letter A (absolvo) or the letter C,
(condemno) or N. L. (non liquet.) These tablets were deposited in
an urn. The president assorted and counted the tablets. If the
majority were for acquitting the accused, the magistrate declared
it by the words fecisse non videtur, and by the words fecisse
videtur if the majority were for a conviction. If the tablets
marked N. L. were so many as to prevent an absolute majority for
a conviction or acquittal, the cause was put off for more ample
information, ampliatio, which the preator declared by the word
amplies. Such in brief was the course of proceedings before the
quaestiones perpeduae.
9. The forms observed in the comitia centiniata and comitia
tributa were nearly the same, except the composition of the
tribunal, and the mode of declaring the vote.
10. It is easy to perceive in this account of a criminal
action, the germ of the proceedings on an indictment at common
law.
POT-DE-VIN, French law. A sum of money frequently paid, at the
moment of entering into a contract, be=yond the price agreed
upon.
2. It differs from arrha, (q. v.) in this, that it is no part
of the price of the thing sold, and, that the person who has
received it, cannot by returning double the amount, or the other
party by losing what he has paid, rescind the contract. 18 Toull.
n. 52.
POTENTATE. One who has a great power over, an extended country;
a sovereign.
2. By the naturalization laws, an alien is required, before he
can be naturalized, to renounce all allegiance aud fidelity to
any foreign prince, potentate, state, or sovereign whatever.
POTESTAS, civil law. A Latin word which signifies power;
authority; domination; empire. It has several meaning. 1. It
signifies imperium, or the jurisdiction of magistrates. 2. The
power of the father over his children, patriapotestas. 3. The
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authority of masters over their slaves, which makes it nearly
synonymous with dominium. See Inst. 1, 9, et 12; Dig. 2, 1, 13,
1; Id. 14, 1; Id. 14, 4, 1, 4.
POUND, weight. There are two kinds of weights, namely, the
troy, and the avoirdupois. The pound avoirdupois is greater than
the troy pound, in the proportion of seven thousand to five
thousand seven hundred and sixty. The troy pound contains twelve
ounces, that of avoirdupois sixteen ounces.
POUND, Eng. law. A place enclosed to keep strayed animals in. 5
Pick. 514; 4 Pick. 258; 9 Pick. 14.
POUND, money. The sum of twenty shillings. Previous to the
establishment of the federal currency,, the different states made
use of the pound in computing money; it was of different value
in the several states.
2. Pound sterling, is a denomination of money of Great Britain.
It is of the value of a sovereign. (q. v.) In calculating the
rates of duties, the pound sterling shall be considered and taken
as of the value of four dollars and eighty cents. Apt of March 3,
1833.
3. The pound sterling of Ireland is to be computed, in
calculating said duties, at four dollars and ten cents. Id.
4. The pound of the British provinces Nova Scotia, New
Brunswick, Newfoundland, and Canada, is to be so computed at four
dollars. Act of May, 22, 1846.
POUNDAGE, practice. The amount allowed to the sheriff, or other
officer, for commissions on, the money made by virtue of an
execution. This allowance varies in different states, and to
different officers.
POURPARLER, French law. The conversations and negotiations
which have taken place between the parties in order to make an
agreement. These form no part of the agreement. Pard. Dr. Com.
142.
2. The general rule in the common law is the same, parol proof
cannot, therefore, be given to contradict, alter, add to, or
diminish a written instrument, except in some particular cases. 1
Dall. 426; Dall. 340; 8 Serg. & Rawle, 609; 7 Serg. Rawle,
114.
POURSUIVANT. A follower, a pursuer. In the ancient English law,
it signified an officer who attended upon the king in his wars,
at the council table, exchequer, in his court, &e., to be sent as
a messenger. A poursuivant was, therefore, a messenger of the
king.
POWER. This is either inherent or derivative. The former is the
right, ability, or faculty of doing something, without receiving
that right, ability, or faculty from another. The people have the
power to establish a form of govemment, or to change one already
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established. A father has the legal power to chastise his son; a
master, his apprentice.
2. Derivative power, which is usually known, by the technical
name of power, is an authority by which one person enables
another to do an act for him. Powers of this kind were well known
to the common law, and were divided into two sorts: naked powers
or bare authorities, and powers coupled with an interest. There
is a material difference between them. In the case of the former,
if it be exceeded in the act done, it is entirely void; in the
latter it is good for so much as is within the power, and void
for the rest only.
3. Powers derived from, the doctrine of uses may be defined to
be an authority, enabling a person, through the medium of the
statute of uses, to dispose of an interest, vested either in
himself or another person.
4. The New York Revised Statute's define a power to be an
authority to do some act in relation to lands, or the creation of
estates therein, or of charges thereon, which the owner granting
or reserving such power might himself lawfully perform.
5. They are powers of revocation and appointment which are
frequently inserted in conveyances which owe their effect to the
statute of uses; when executed, the uses originally declared
cease, and new uses immediately arise to the persons named in the
appointment, to which uses the statute transfers the legal estate
and possession.
6. Powers being found to be much more convenient than
conditions, were generally introduced into family settlements.
Although several of these powers are not usually called powers of
revocation, such as powers of jointuring, leasing, and charging
settled estates with the payment of money, yet all these are
powers of revocation, for they operate as revocations, pro tanto,
of the preceding estates. Powers of revocation and appointment
may be reserved either to-the original owners of the land or to
strangers: hence the general division of powers into those which
relate to the land, and those which are collateral to it.
7. Powers relating to the land are those given to some person
having an interest in the land over which they are to be
exercised. These again are subdivided into powers appendant and
in gross.
8. A power appendant is where a person has an estate in land,
with a power of revocation and appointment, the execution of
which falls within the compass of his estate; as, where a tenant
for life has a power of making leases in possession.
9. A power in gross is where a person has an estate in the
land, with a power of appointment, the execution of which falls
outof the compass of his estate, but, notwithstanding, is annexed
in privity to it, and takes effect in the appointee, out of an
interest vested in the appointer; for instance, where a tenant
for life has a power of creating an estate, to commence after the
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determination of his own, such as to settle a jointure on his
wife, or to create a term of years to commence after his death,
these are called powers in gross, because the estate of the
person to whom they are given, will not be affected by the
execution of them.
10. Powers collateral, are those which are given to mere
strangers, who have no interest in the laud: powers of sale and
exchange given to trustees in a marriage settlement are of this
kind. Vide, generally, Powell on Powers, assim; Sugden on
Powers, passim; Cruise, Dig. tit. 32, ch.
13; Vin. Ab. h. t.; C om. Dig. Poiar; 1 Supp. to Ves. jr.
40, 92, 201, 307; 2 Id. 166, 200; 1 Vern. by Raithby, 406; 3
Stark. Ev. 1199; 4 Kent, Com. 309; 2 Lilly's Ab. 339; Whart.
Dig. h. t. See 1 Story, Eq. Jur. §169, as to the execution of a
power, and when equity will supply the defect of execution.
11. This classification of powers is admitted to be important
only with reference to the ability of the donee to suspend,
extinguish or merge the power. The general rule is that a power
shall not be exercised in derogation of a prior grant by the
appointer. But this whole division of powers has been condemned'
as too artificial and arbitrary.
12. Powell divides powers into general and particular. powers.
General powers are those to be exercised in favor of any person
whom the appointer chooses. Particular powers are those which are
to be exercised in favor of specific objects. 4 Kent, Com. 311,
Vide, Bouv. Inst. Index, h. t.; Mediate powers; Primary powers.
POWER OF ATTORNEY. Vide Letter of attorney, and 1 Mood. Or.
Cas. 57, 58.
POYNING'S LAW, Engl. law. The name usually given to an act
which was passed by a parliament holden in Ireland in the tenth
of Henry the Seventh; it enacts that all statutes made in the
realm of England before that time should be in force and put in
use in the realm of Ireland. Irish Stat. 10 H. VII. c. 22; Co.
Litt. 141 b; Harg. n. 3.
PRACTICE. The form, manner and order of conducting and carrying
on suits or prosecutions in the courts through their various
stages, according, to the principles of law, and the rules laid
down by the respective courts.
2. By practice is also meant the business which an attorney or
counsellor does; as, A B has a good practice.
3. The books on practice are very numerous; among the most
popular are those Of Tidd, Chiity, Archbold, Sellon, Graham,
Dunlap, Caines, Troubat and Haly, Blake, Impey.
4. A settled, uniform, and loll, continued practice, without
objection is evideuce of what the law is, and such practice is
based on principles which are founded in justice and convenience.
Buck, 279; 2 Russ. R. 19, 570; 2 Jac. It. 232; 5 T. R. 380; 1
Y. & J. 167, 168; 2 Crompt. & M. 55; Ram on Judgm. ch. 7.
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PRAEDA BELLICA. Lat. Booty; property seized in war. Vide
Booty; Prize.
PRAECIPE or PRECIPE, practice. The name of the written
instructions given by an attorney or plaintiff to the clerk or
prothonotary of a court, whose duty it is to make out the writ,
for the making of the same.
PRAEDIAL. That which arises immediately from the ground; as,
grain of all sorts, hay, wood, fruits, herbs, and the like.
PRAEDIUM DOMINANS, civil law. The name given to an estate to
which a servitude is due; it is called the ruling estate.
PRAEDIUM RUSTICUM, civil law. By this is understood all
heritages which are not destined for the use of man's habitation;
such, for example, as lands, meadows, orchards, gardens, woods,
even though they should be within the boundaries of a city.
PRAEDIUM SERVIENS, Civil law. The name of an estate which
suffers or yields a service to another estate.
PRAEDIUM URBANUM, civil law. By this term is understood
buildings and edifices intended for the habitation and use of
man, whether they be built in cities or whether they be
constructed in the country.
PRAEFECTUS VIGILUM, Roman civ. law. The chief officer of the
night watch. His jurisdiction extended to certain offences
affecting the public peace; and even to larcenies. But he could
inflict only slight punishments.
PRAEMUNIRE. In older to prevent the pope from assuming the
supremacy in granting ecclesiastical livings, a number of
statutes were made in England during the reigns of Edward I., and
his successors, punishing certain acts of submission to the papal
authority, therein mentioned. In the writ for the execution of
these statutes, the words praemunire facias, being used, to
command a citation of the party, gave not only to the writ, but
to the offence itself, of maintaining the papal power, the name
of praemunire. Co. Lit. 129; Jacob's L. D. h. t.
PRAETOR, Roman civil law. A municipal officer of Rome, so
called because, (praeiret populo,) he went before or took
precedence of the people. The consuls were at first called
praetors. Liv. Hist. III. 55. He was a sort of minister of
justice, invested with certain legislative powers, especially in
regard to the forms or formalities of legal proceedings.
Ordinarily, be aid not decide causes as a judge, but prepared the
grounds of decision for the judge and sent to, him the questions
to be decided between the parties. The judge was always chosen by
the parties, either directly, or by rejecting, under certain
rules and limitations, the persons proposes to them by the
praetor. Hence the saying of Cicero, (pro Cluentis, 43,) that no
one could be judged except by a judge of his own choice. There
were several kinds of officers called proctors. See Vicat, Vocab.
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2. Before entering on his functions he published an edict
announcing the system adopted by him for the application and
interpretation of the laws during his magistracy. His authority
extended over all jurisdictions, and was summarily expressed by
the word do, dico, addico, i, e. do I give the action, dico I
declare the law, I promulgate the edict, addico I invest the
judge with the right of judging. There were certain cases which
he was bound to decide himself, assisted by a council chosen by
himself perhaps the Decemvirs. But the greater part of causes
brought before him, be sent either to a judge, an arbitrator, or
to recuperators, (recuperatores,) or to the centumvirs, as before
stated. Under the empire the powers of the praetor passed by
degrees to the praefect of the praetorium, or the praefect of the
city; so that this magistrate, who at first ranked with the
consuls, at last dwindled into a director or manager of the
public spectacles or games.
3. Till lately, there were officers in certain cities of
Germany denominated praetors Vide 1 Kent, Com. 528.
PRAGMATIC SANCTION, French law. This expression is used to
designate those ordinances which concern the most important
object of the civil or ecclesiastical administration. Merl.
Repert, h. t.; 1 Fournel, Hist. des Avocats, 24, 38, 39. 2. In
the civil law, the answer given by the emperors on questions of
law, when consulted by a corporation or the citizens of a
province, or of a, municipality, was called a pragmatic sanction.
Lecons El. du Dr. Civ. Rom. §53. This differed from a rescript.
(q. v.)
PRAYER, chanc. pleadings. That part of a bill which asks for
relief.
2. The skill of the solicitor is to be exercised in framing
this part of the bill. An accurate specification of the matters
to be decreed in complicated cases, requires great discernment
and experience; Coop. Eq. Pl. 13; it is varied as the case is
made out, concluding always with a prayer of general relief, at
the discretion of the court. Mitf. Pl. 45.
PRAYER OF PROCESS, chanc. plead. That part of a bill which
prays that the defendant be compelled to appear and answer the
bill, and abide the determination of the court on the subject, is
called prayer of process. This prayer must contain the name's of
all Persons who are intended to be made parties. Coop. Eq. Pl.
16; Story, Eq. Pl. §44.
PRAYER FOR RELIEF, chan. pleading. This is the name of that
part of the bill, which, as the phrase imports, prays for relief.
This prayer is either general or special but the general course
is for the plaintiff to make a special prayer for particular
relief to which he thinks himself entitled, and then to conclude
with a prayer of general relief at the discretion of the court.
Story, Eq. Pl. §40; 4 Bouv. Inst. n. 4174-6.
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PREAMBLE. A preface, an introduction or explanation of what is
to follow: that clause at the head of acts of congress or other
legislatures which explains the reasons why the act is made.
Preambles are also frequently put in contracts to, explain the
motives of the contracting parties,
2. A preamble is said to be the key of a statute, to open the
minds of the makers as to the mischiefs which are to be remedied,
and the objects which are to be accomplished by the provisions of
the statutes. It cannot amount, by implication, to enlarge what
is expressly given. 1 Story on Const. B 3, c. 6. How far a
preamble is to be considered evidence of the facts it recites,
see 4 M. & S. 532; 1 Phil. Ev. 239; 2 Russ. on Cr. 720; and
see, generally, Ersk. L. of Scotl. 1, 1, 18; Toull. liv. 3, n.
318; 2 Supp. to Ves. jr. 239; 4 L. R. 55; Barr. on the Stat.
353, 370.
PRECARIOUS RIGHT. The right which the owner of a thing
transfers to another, to enjoy the same until it shall please the
owner to revoke it.
2. If there is a time fixed during which the right may be used
it is then vested for that time, and cannot be revoked until
after its expiration. Wolff, Inst. §833.
PRECARIUM. The name of a contract among civilians, by which the
owner of a thing at the request of another person, gives him a
thing to use as long as the owner shall please. Poth. h. t. n.
87. See Yelv. 172; Cro. Jac. 236; 9 Cowen, 687; Roll. R. 128;
Bac. Ab. Bailment, c; Ersk. Prin. B. 3, t. 1, n. 9; Wolff, Ins.
Nat. §333.
2. A tenancy at will is a right of this kind.
PRECATORY WORDS. Expressions in a will praying or requesting
that a thing shall be done.
2. Although recommendatory words used by a testator, of
themselves, seem to leave the devisee to act as he may deem
proper, giving him a discretion, as when a testator gives an
estate to a devisee, and adds that he hopes, recommends, has a
confidence, wish or desire that the devisee shall do certain
things for the benefit of another person; yet courts of equity
have construed such precatory expressions as creating a trust. 18
Ves. 41; 8 Ves. 380; Bac. Ab. Legacies, B, Bouv. ed.
3. But this construction will not prevail when either the
objects to be benefited are imperfectly described, or the amount
of property to which the trust should attach, is not sufficiently
defined . 1 Bro. C. C. 142; 1 Sim. 542, 556. See 2 Story, Eq.
Jur. §1070; Lewin on Trusts, 77; 4 Bouv. Inst. n. 3953.
PRECEDENCE. The right of being first placed in a certain order,
the first rank being supposed the most honorable.
2. In this country no precedence is given by law to men.
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3. Nations, in their intercourse with each other, do not admit
any precedence; hence in their treaties in one copy one is named
first, and the other in the other. In some cases of officers when
one must of necessity act as the chief, the oldest in commission
will have precedence; as when the president of a court is not
present, the associate who has the oldest commission will have a
precedence; or if their. commissions bear the same date, then
the oldest man.
4. In. the, army and navy there is an order of precedence which
regulates the officers in their command.
PRECEDENTS. the decision of courts of justice; when exactly in
point with a case before the court, they are generally held to
have a binding authority, as well to keep the scale of justice
even and steady, as because the law in that case has been
solemnly declared and determined. 9 M. R. 355.
2. To render precedents valid, they must be founded in reason
and justice; Hob. 270; must have been made upon argument, and
be the solemn decision of the court; 4 Co. 94; and in order to
give them binding effect, there must be a current of decisions.
Cro. Car. 528; Cro. Jac. 386; 8 Co. 163.
3. According to Lord Talbot, it is "much better to stick to the
known general rules, than to follow any one particular precedent,
which may be founded on reason, unknown to us." Cas. Temp. Talb.
26. Blackstone, 1 Com. 70, says, that a former decision is in
general to be followed, unless "manifestly absurd or unjust,",
and, in the latter case, ii is declared, when overruled, not that
the former sentence was bad law, but that it was not law.
4. Precedents can only be useful when they show that the case
has been decided upon a certain principle, and ought not to be
binding when contrary to such principle. If a precedent is to be
followed because it is a precedent, even when decided against an
established rule of law, there can be no possible correction of
abuses, because the fact of, their existence renders them above
the law. It is always safe to rely upon principles. See
Principle; Rewon. de 16 Vin. Ab. 499; Wesk. on Inst. h. t.: 2
Swanst. 163; 2 Jac. & W. 31; 3 Ves. 527; 2 Atk. 559; 2 P.
Wms. 258; 2 Bro. C. C. 86; 1 Ves. jr. 11; and 2 Evans Poth.
377, where the author argues against the policy of making
precedents binding when contrary to reason. See also 1 Kent,
Comm.475-77; Liv.Syst. 104-5; Gresl. Ev. 300; 16 Johns. R.
402; 20 Johns. R. 722; Cro. Jac. 527; 33 H. VII. 41; Jones,
Bailment, 46; and the articles Reason and Stare decisis.
PRECEPT. A writ directed to the sheriff or other officer,
commanding him to do something. The term is derived from the
operative praecipimus, we command.
PRECINCT. The district for which a high or petty constable is
appointed, is in England, called a precinct. Willc. Office of
Const. xii.
2. In day time all persons are bound to recognize a constable
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acting within his own precincts; after night the constable is
required to make himself known, and it is, indeed, proper he
should do so at all times. Ibid. n. 265, p. 93.
PRECIPUT, French law. An object which is ascertained by law or
the agreement of the parties, and which is first to be taken out
of property held in common, by one having a right, before a
partition takes place.
2. The preciput is an advantage, or a principal part to which
some one is entitled, praecipium jus, which is the origin of the
word preciput. Dict. de Jur. h. t.; Poth. h. t. By preciput is
also understood the right to sue out the preciput.
PRECLUDI NON, pleading. A technical allegation contained in a
replication which denies or confesses and avoids the plea. It is
usually in the following form; "And the said A B, as to the plea
of the said C D, by him secondly above pleaded, says, that he the
said A B, by reason of any thing by the said C D, in that plea
alleged, ought not to be barred from having and maintaining his
aforesaid action thereof against the said C D, because he says
that," &c. 2 Wils. 42; 1 Chit. Pl. 573.
PRECOGNITION, Scotch law. The examination of witnesses who were
present at the commission of a criminal act, upon the special
circumstances attending it, in order to know whether there is
ground for a trial, and to serve for direction to the prosecutor.
But the persons examined may insist on having their declaration
cancelled before thev give testimony at the trial. Ersk. Princ.
B. 4, t. 4, n. 49.
PRECONTRACT. An engagement entered into by a person, which
renders him unable to enter into another; as a promise or
covenant of marriage to be had afterwards. When made per verba de
presenti, it is in fact a marriage, and in that case the party
making it cannot marry another person.
PREDECESSOR. One who has preceded another.
2. This term is applied in particular to corporators who are
now no longer such, and whose rights have been vested in their
successor; the word ancestor is more usually applicable to
common persons. The predecessor in a corporation stands in the
same relation to the successor, that the ancestor does to the
heir.
3. The term predecessor is also used to designate one who has
filled an office or station before the present incumbent.
PRE-EMPTION, intern. law. The right of preemption is the right
of a nation to detain the merchandise of strangers passing
through her territories or seas, in order to afford to her
subjects the preference of purchase. 1 Chit. Com. Law, 103; 1
Bl. Com. 287.
2. This right is sometimes regulated by treaty. In that which
was made between the United States and Great Britain, bearing
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date the 10th day of November, 1794, ratified in 1795, it was
agreed, art. 18, after mentioning that the usual munitions of
war, and also naval materials should be confiscated as
contraband, that "whereas the difficulty of agreeing on precise
cases in which alone provisions and other articles not generally
contraband may be regarded as such, renders it expedient to
provide against the inconveniences and misunderstandings which
might thence arise. It is further agreed that whenever any such
articles so being contraband according to the existing laws of
nations, shall for that reason be seized, the same shall not be
confiscated, but the owners thereof shall be speedily and
completely indemnified; an the captors, or in their default-the
government under whose authority they act, shall pay to the
masters or owners of such vessel the full value of all articles,
with a reasonable mercantile profit thereon, together with the
freight, and also the damages incident to such detention." See
Mann. Com. B. 3, c. 8.
3. By the laws of the United States the right given to settlers
of public lands, to purchase them in preference to others, is
called the preemption right. See act of L. April 29, 1830, 4
Sharsw. Cont. of Story, U. S. 2212.
PREFECT, French law. A chief officer invested with the
superintendence of the administration of the laws in each
department. Merl. Repert. h. t.
PREFERENCE. The paying or securing to one or more of his
creditors, by an insolvent debtor, the whole or a part of their
claim, to the exclusion of the rest. By preference is also meant
the right which a creditor has acquired over others to be paid
first out of the assets of his debtor, as, when a creditor has
obtained a judgment against his debtor which binds the latter's
land, he has a preference.
2. Voluntary preferences are forbidden by the insolvent laws of
some of the states, and are void, when made in a general
assignment for the benefit of creditors. Vide Insolvent;
Priority.
PREGNANCY, med. jurisp. This is defined by medical writer; to
be the state of a female who has within her ovary or womb, a
fecundated germ which gradually becomes developed in the latter
receptaale. Dunglison's Med. Diet. h. t.
2. The subject may be considered with reference to the signs of
pregnancy; its duration; and the laws relating to it.
3. - §1. The fact that women sometimes conceal their state of
pregnancy in order to avoid disgrace, and to destroy their
offspring in its mature or immature state; and that in other
cases to gratify the wishes of relations, the desire to deprive
the legal successor of his just claims, to gratify their avarice
by extorting money, and to avoid or delay execution, pregnancy is
prtended, renders it necessary that an inquiry should take place
to ascertain whether a woman has or has not been pregnant.
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4. There are certain signs which usually indicate this state;
these have been divided into those which affect the system
generally, and those which affect the uterus.
5. - 1. The changes observed in the system from conception and
pregnancy, are principally the following; namely, increased
irritability of temper, melancholy, a languid cast of
countenance, nausea, heart-burn, loathing of food, vomiting in
the morning, an increased salivary discharge, feverish neat, with
emaciation and costiveness, occasionally depravity of appetite, a
congestion in the head, which gives rise to spots on the face, to
headache, and erratic pains in the face and teeth. The pressure
of increasing pregnancy, occasions protrusion of the umbilicus,
and, sometimes, varicose tumors or anasarcous swellings of the
lower extremities. The breasts also enlarge, an areola, or brown
circle is observed around the nipples, and a secretion of lymph,
composed of milk and water, takes place. It should be remembered
that these do not occur in every pregnancy, but many of them in
most cases.
6. - 2. The changes which affect the uterus, are, a suppression
and cessation of the menses; an augmentation in size of the
womb, which becomes perceptible between the eighth and tenth
weeks; as time progresses, the enlargement continues about the
middle of pregnancy, the woman feels the motion of the child, and
this is called quickening. (q. v.) The vagina is also subject to
alteration, as its glands throw out more mucus, and apparently
prepare the parts for the passage of the foetus. Ryan's Med. Jur.
112, 113, 1 Beck's Med. Jur. 157, 158; 2 Dunglison's Human
Physiology, 361. These are the general signs of pregnancy; it
will be proper to consider them more minutely, though briefly, in
detail.
7. - 1. The expansion and enlargement of the abdomen. This sign
is not visible during the early months of pregnancy, and by art
in the disposition of the dress and the use of stays, it may be
concealed for a much longer period. The corpulency of the woman
or the peculiarity of her form, may also contribute to produce
the same effect. In common cases, where there is no such
obstacle, this sign is generally manifest at the end of the
fourth month, and continues till delivery. But the enlargement
may originate from disease; from suppression or retention of the
menses; tympanites; dropsy; or schirrosity of the liver and
spleen. Patient and assiduous investigation and professional
skill are requisite to pronounce as to this sign, and all these
may fail. Fodere, tome i. p. 443. Cyclop. of Practical Medicnae,
h. t. Cooper's Lect. vol. ii. p. 163.
8. - 2. Change in the state of the breasts. They are said to
grow larger and more firm; but this enlargement occurs in
suppressed menses, and sometimes at the period of the cessation
of the menses; and sometimes they do not enlarge till after
delivery. The dark appearance of the areola is no safe criterion;
and the milky fluid may occur without pregnancy.
9. - 3. The suppression of the menses. Although this usually
follows conception, yet in some cases menstruation is carried on
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till within a few weeks of delivery. When the suppression takes
place, it is not always the effect of impregnation; it may, and
frequently does arise, from, disease. Some medical authors,
however, deem the suppression to be a never failing consequence
of conception.
10. - 4. The loss of appet ite, nausea, vomiting, &c. Although
attendant upon pregnancy in many cases, are very equivocal signs.
11. - 5. The motion of the foetus in the mother's womb. In the
early months of pregnancy this is wanting, but afterwards it can
be ascertained. In cases of concealed pregnancy it cannot be
ascertained from the declarations of the mother, and the examiner
must discover it by other means. When the fcetus is alive, the
sudden application of the hand, immediately after it has been
dipped in cold water, over the regions of the uterus, will
generally produce a motion of the foetus; but this is not an
infallible test, the foetus may be dead, or there may be twins;
in the first case, then, there will be no motion and in the
latter, the motion is not felt sometimes until a late period.
Vide Quickening.
12. - 6. Alteration in the state of the uterus. This is
ascertained by what is technically called the touch. This is an
examination, made with the hand of the examiner, of the uterus.
13. - 7. By the application of auscultation to the impregnated
uterus, it is said certainty can be obtained. The indications of
the presence of a living foetus in the womb, as derived from
auscultation, are two: - 1. The action of the foetal heart This
is marked by double pulsations; that of the foetus generally
exceeds in frequency the maternal pulse. These pulsations may be
perceived at the fifth, or between the fifth and sixth months.
Their situation varies with that of the child. 2. The other
auscultatory sign to denote the presence of the foetus has been
variously denominated the placental bellows sound, the placental
sound, and the utero placental souffflet. It is generally agreed
that its seat is in the enlarged vessels of the portion of the
uterus which is immediately connected with the placenta.
According to Laennec, it is an arterial pulsation perfectly
isochronous with the pulse of the mother, and accompanied by a
rushing noise, resembling the blast of a pair of a bellows. It
commonly begins to be beard with the aid of the stethoscope, (an
instrument invented by Professor Laennec of Paris, for examining
the chest) at the end of the fourth month of pregnancy. In the
case of twins, Laennec detected the pulsation of two foetal
hearts before delivery, by means of this instrument.
14. - 8. Another sign of pregnancy has been discovered, which
is said by M. Jaquemin never to fail. It is the peculiar dark
color which the mucous merabrane of the vagina acquires during
this state. It was only after an examination of four thousand
five hundred women that M. Jacquemin came to the conclusion which
be formed of the certainty of this sign. Parent Duchatellet, De
la Prostitution dans la ville de Paris, c, 3, §5.
15. It is, always difficult though perhaps not impossible to
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ascertain the presence of the foetus, and on the other band, many
of the signs which would indicate such presence, have been known
to fail. 1 Beck's Med. Jur. ch. Chit. Med. Jur. b. t.; Ryan's
Med. Jur. 112, 113; Allison's Princ. of the Cr., Law of Scotl.
ch. 3, p. 153; 1 Briand, Med. Leg. c. 3.
16.- §2. The duration of human pregnancy is not certain, and
probably is not the same in every woman. It may perbaps be safely
stated that forty weeks is the ordinary duration, though much
discussion has taken place among medico-legal writers on this
subject, and opinions fluctuate largely. 1 Beck's Med. Jur. 862.
This is occasioned perhaps by the difficulty of ascertaining the
time from which this period begins to run. Chit. Med. Jur. 409;
Dewees, Midwifery, 125; 1 Paris & Fonbl. 218, 230, 245; 2
Dunglison's Human Physiology, 362; Rvan's Med. Jur. 121; 1
Fodere, M4d. Leg. §407-416.
17. - §3. The laws relating to pregnancy are to be considered,
first, in reference to the fact of pregnancy; and, secondly,
inrelation to its duration.
18. - 1. As to the fad of pregnancy. There are two cases where
the fact whether a woman is or has been pregnant is of
importance; when it is supposed she pretends pregnancy, and when
she is charged with concealing it.
19. - 1st. Pretended pregnancy may arise from two causes: the
one when a widow feigns herself with child, in order to produce a
supposititious heir to the estate. In this case in England the
heir presumptive may have a writ de ventre inspiciendo, to
examine whether she be with child or not; and if she be, to keep
her under proper restraint until delivered; but if, upon
examination, the widow be found not pregnant, the presumptive
heir shall be admitted to the inheritance, though liable to lose
it again on the birth of a child within forty weeks from the
death of the hushand. 1 Bl. Com. 456; Cro. Eliz. 566; 4 Bro. C.
C. 90; 2 P. Wms. 591; Cox's C. C. 297. In the civil law there
was a similar practice. Dig. 25, 4.
20. The second cause of pretended pregnancy occurs when a woman
has been sentenced to death, for the commission of a crime. At
common law, in case this plea be made before execution, the court
must direct a jury of twelve matrons, or discreet women, to
ascertain the fact, and if they bring in their verdict quick with
child, execution shall be staid generally till the next session
of the court, and so from session to session till either she be
delivered, or proves by the lapse of time, not to have been with
child at all. 4 Bl. Com. 394, 395; 1 Bay, 487. It is proper to
remark that a verdict of the matrons that the woman is pregnant
is not sufficient, she must be found to be quick with child. (q.
v.)
21. Whether under the English law a woman would be hanged who
could be proved to be privement enceinte, beyond all doubt, is
not certain; but in this country, it is presumed if it could be
made to appear, indubitably: that the woman was pregnant, though
not quick with child, the execution would be respited until after
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delivery. Fatal errors have been made by juries of matrons. A
case occurred at Norwich in England in the month of March, 1833,
of a murderess who pleaded pregnancy. Twelve married women were
impanneled on the jury; after an hour's examination, they
returned a verdict that she was not quick with child. She was
ordered for execution. Fortunately three of the principal
surgeons in the place, fearing some error, waited upon the
convict and examined her; they found her not only pregnant, but
quick with child. The matter was represented to the judge, who
respited the execution, and on the 11th day of July she was
safely delivered of a living child. London Medical Gazette, vol.
xii. p. 24, 585.
22. In New York it is provided by legislative enactment, (2
Rev. Stat. 658,) that "if a female convict, sentenced to the
punishment of death, be pregnant, the sheriff shall summon a jury
of six physicians, and shall give notice to the district
attorney, who shall have power to subpoena witnesses. If, on such
inquisition, it shall appear that the female is quick with child,
the sheriff shall suspend the execution, and transmit the
inquisition to the governor. Whenever the governor shall be
satisfied that she is no longer quick with child, he shall issue
Iiis warrant for execution, or commute it, by imprisonment for
life in the state prison."
23. By the laws of. Franco, "if a woman condemned to death
declares herself to be pregnant, and it is verified that she is
pregnant, she shall not suffer her punishment till after her
delivery. Code Penal, art. 27.
24. - 2d. Concealed pregnancy seldom takes place except for the
criminal purpose of destroying the life of the foetus in utero,
or of the child immediately after its birth. The extreme facility
of extinguishing the infant life, at the time, or shortly after
birth,, and the experienced difficulty of proving this unnatural
crime, has induced the passage of laws, in perhaps all the
states, as well as in England and other countries, calculated to
facilitate the proof, land also to punish the very act of
concealment of pregnancy and death of the child, when, if born
alive, it would have been a bastard. The English statute of 21
Jac. 1, c. 27, required that any mother of such child who had
endeavored to conceal its birth, should prove, by one witness at
least, that the child was actually born dead; and for want of
such proof it arrived at the forced conclusion that the mother
murdered it. But it was considered a blot upon even the English
code, and it was therefore repealed by 43 Geo. III. c. 58, s. 3.
An act of assembly of Pennsylvania, of the 31st May, 1781, made
the concealment of the death of a bastard child conclusive
evidence to convict the mother of murder; which was repealed by
the act of 5th of April, 1790, s. 6, which declared that the
constrained presumption that the child whose death is concealed,
was therefore murdered by the mother, shall not be sufficient to
convict the party indicted, without probable presumptive proof is
given that the child was born alive. The law was further modified
by the act of 22d of April, 1794, s. 18, which declares that the
concealment of the death of any such child shall not be
conclusive evidence to convict the party indicted of the murder
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of her child, unless the circumstances attending it be such as
shall satisfy the mind of the jury, that she did wilfully and
maliciously troy take away the life of such a child. The last
mentioned act, section 17, punishes the concealment of the death
of a bastard child by fine and imprisonment. See, for the law of
Connecticut on the subject, 2 Swift's Digest, 296. See Alison's
Principles of the Criminal Law of Scotland, ch. 3.
26. - 2. As to the duration of pregnancy. Lord Coke lays down
the peremptory rule that forty weeks is the longest time allowed
by law for gestation. Co. Litt. 123. There does not, however,
appear to be any time fixed by the law as to the duration of
pregnancy. Note by Hargr. & Butler, to 1 Inst. 123, b: 1 Rolle's
Ab. 356, 1. 10; Cro. Jac. 541; Palm. 9.
27. The civil code of Louisiana provides that the child capable
of living, which is born before the one hundred and eightieth day
after the marriage, is not presumed to be the child of the
hushand; every child born alive more than six months after
conception, is presumed to be capable of living. Art. 205. The
same rule applies with respect to the child born three hundred
days after the dissolution of the marriage, or after sentence of
separation e and board. Art. 206. The Code Civil of France
contains the following provision. The child conceived during the
marriage, has the hushand for its father. Nevertheless the
hushand may disavow the child, if he can prove that during the
time that has elapsed between the three hundredth and the one
hundred and eightieth before its birth he was prevented either by
absence, or in consequence of some accident, or on account of
some physical impossibility, from cohabiting with his wife. Art.
312. A child born before the one hundred and eightieth day after
the marriage cannot be disavowed by the hushand in the following
cases: - l. When he had knowledge of the pregnancy before the
marriage; 2. When he has assisted in writing the act of birth,
[a certificate stating the birth and sex of the child, the time
when born, &c. required by law to be filed with a proper officer
and recorded,] and when that act has been signed by him, or when
it contains his declaration that he cannot sign;
3. When the child is not declared capable of living. Art. 314.
And the legitimacy of a child born three hundred days after the
dissolution of the marriage may be contested. Art. 315.
PREGNANT, pleading. A fulness in the pleadings which admits or
involves a matter which is favorable to the opposite party. 2. It
is either an affirmative pregnant, or negative pregnant. See
Affirmative pregnant; Negative pregnant.
PREJUDICE. To decide beforehand; to lean in favor of one side
of a cause for some reason or other than its justice.
2. A judge ought to be without prejudice, and he cannot
therefore sit in a case where he has any interest, or when a near
relation is a partt, or where he has been of counsel for one of
the parties. Vide Judge.
3. In the civil law prejudice signifies a tort or injury; as
the act of one man should never prejudice another. Dig. 60, 17,
74.
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PRELATE. The name of an ecclesiastical officer. There are two
orders of prelates; the first is composed of bishops, and the
second, of abbots, generals of orders, deans, &c.
PRELEVEMENT, French law. The portion which a partner is
entitled to take out of the assets of a firm before any sion
shall be made of the remainder of the assets, between the
partners.
2. The partner who is entitled to a prelevement is not a
creditor of the partnership; on the contrary he is a part owner
for if the assets should be deficient, a creditor has a
preference over the partner; on the other hand, should the
assets yield any profit, the partner is entitled to his portion
of it, whereas the creditor is entitled to no part of it, but he
has a right to charge interest, when he is in other respects
entitled to it.
PREHENSION. The lawful taking of a thing with an intent to,
assert a right in it.
PRELIMINARY. Something which precedes, as preliminaries of
peace, which are the first sketch of a treaty, and contain the
principal articles on which both parties are desirous of
concluding, and which are to serve as the basis of the treaty.
PREMEDITATION. A design formed to commit a crime or to do some
other thing before it is done.
2. Premeditation differs essentially from will, which
constitutes the crime, because it supposes besides an actual
will, a deliberation and a continued persistance which indicate
more perversity. The preparation of arms or other instruments
required for the execution of the crime, are indications of a
premeditation, but are not absolute proof of it, as these
preparations may have been intended for other purposes, and then
suddenly changed to the performance of the criminal act. Murder
by poisoning must of necessity be done with premeditation. See
Aforethought; Murder.
PREMISES. that which is put before. The word has several
significations; sometimes it means the statements which have
been before made; as, I act upon these premises; in this sense,
this word may comprise a variety of subjects, having no connexion
among themselves; 1 East, R. 456; it signifies a formal part of
a deed; and it is made to designate an estate.
PREMISES, estates. Lands and tenements are usually, called
premises, when particularly spoken of; as, the premises will be
sold without reserve. 1 East, R. 453.
PREMISES, conveyancing. That part in the beginning of a deed,
in which are set forth the names of the parties, with their
titles ana additions, and in which are recited such deeds,
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agreements, or matters of fact, as are necessary to explain the
reasons upon which the contract then entered into is founded;
and it is here also the consideration on which it is made, is set
down, and the certainty of the thing granted. 2 Bl. Com. 298. The
technical meaning of the premises in a deed, is every thing which
precedes the habendum. 8 Mass. R. 174; 6 Conn. R. 289. Vide
Deed.
PREMISES, equity pleading. That part of a bill usually
denominated the stating part of the bill. It contains a narrative
of the facts and circumstances of the plaintiff's case, and the
wrongs of which he complains, and the names of the persons by
whom done, and against whom he seeks redress. Coop. Eq. Pl..9;
Bart. Suit in equity, 27; Mitf. Eq. Pl. by Jeremy, 43; Story,
Eq. Pl. §27; 4 Bouv, Inst. n. 4158.
PREMIUM, contracts. The consideration paid by the insured to
the insurer for making an insurance. It is so called because it
is paid primo, or before the contract shall take effect. Poth. h.
t. n. 81; Marah. Inst. 234.
2. In practice, however, the premium is not always paid when
the policy is underwritten; for insurances are frequently
effected by brokers, and open accounts are kept between them and
the underwriters, in which they make themselves debtors for all
premiums;, and sometimes notes or bills are given for the amount
of the premium.
3. The French writers, when they speak of the consideration
given for maritime loans, employ a variety of words in order to
distinguish it according to the nature of the case. Thus, they
call it interest when it is stipulated to be paid by the month or
at other stated periods. It is a premium, when a gross sum is to
be paid at the end of a voyage, and here the risk is the
principal object which they have in view. When the sum is a
percentage on the money lent, they denominate it exchange,
considering it in the light of money lent in one place to be
returned in another, with a difference in amount between the sum
borrowed and that which is paid, arising from the difference of
time and place. When they intend to combine these various shades
into one general denomination, they make use of the term maritime
profit, to convey their meaning. Hall on Mar. Loans, 56, n. Vide
Park, Ills. h. t. Poth. h. t.; 3 Kent, Com. 285; 15 East, R.
309, Day's note, and the cases there cited.
PREMIUM PUDICITIAE, contracts. Literally the price of chastity.
2. This is the consideration of a contract by which a man
promises to pay to a woman with whom he has illicit intercourse a
certain sum of money. When the contract is made as the payment of
past cohabitation, as between the parties, it is good, and will
be enforced against the obligor, his heirs, executors and
administrators, but it cannot be paid, on a deficiency of assets,
until all cred itors are paid, though it has a preference over
the heir, next of kin, or devisee. If the contract be for future
cohabitation, it is void. Chit. Contr. 215; 1 Story, Eq. Jur.
§296; 5 Ves. 286; 2 P. Wms. 432; 1 Black. R. 517; 3 Burr.
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1568; 1 Fonbl. Eq, B. 1, a. 4, §4, and notes s and y; 1 Ball &
Beat. 360; 7 Ves. 470; 11 Ves. 535; Rob. Fraud. Conv. 428;
Cas. Temp. Talb. 153; and the cases there cited; 6 Ham. R. 21;
5 Cowen, R. 253; Harper, R. 201; 3 Mont. R. 35; 2 Rev. Const.
Ct; 279; 11 Mass. R. 368; 2 N. & M. 251.
PRENDER or PRENDRE. To take. This word is used to signify the
right of taking a thing before it is offered,; hence the phrase
of law, it lies in render, but not in prender. Vide A prendre;
and Gale and Whatley on Easements, 1.
PROENOMEN. The first or Christian name of a person; Benjamin
is the proenomen of Benjamin Franklin. See Cas. temp. Hard. 286;
1 Tayl. 148.
PREPENSE. The same as aforethought. (q. v.) Vide 2 Chit. Cr.
Law, *784.
PREROGATIVE, civil law. The privilege, preeminence, or
advantage which one person has over another; thus a person
vested with an office, is entitled to all the rights, privileges,
prerogatives, &c. which belong to it.
PREROGATIVE, English law. The royal prerogative is an arbitrary
power vested in the executive to do good and not evil. Rutherf.
Inst. 279; Co. Litt. 90; Chit. on Prerog.; Bac. Ab. h. t.
PREROGATIVE COURT, eccles. law. The name of a court in England
in which all testaments are proved and administrations granted,
when the deceased has left bona notabilia in the province in some
other diocese than that in which he died. 4 Inst. 335.
2. The testamentary courts of the two archbishops, in their
respective provinces, are styled prerogative courts, from the
prerogative of each archbishop to grant probates and
administrations, where there are bona, notabilia; but still
these are only inferior and subordinate jurisdictions; and the
style of these courts has no connexion with the royal
prerogative. Derivatively, these courts are the king's
ecclesiastical courts; but immediately, they are only the courts
of the ecclesiastical ordinary. The ordinary, and not the crown,
appoints the judges of these courts; they are subject to the
control of the king's courts of chancery and common law, in case
they exceed their jurisdiction; and they are subject in some
instances to the command of these courts, if they decline to
exercise their jurisdiction, when by law they ought to exercise
it. Per Sir John Nicholl, In the Goods of George III.; 1 Addams,
R. 265; S. C. 2 Eng. Eccl. R. 112.
PRESCRIPTIBLE. That which is subject to prescription.
PRESCRIPTION. The manner of acquiring property by a long,
honest, and uninterrupted possession or use during the time
required by law. The possession must have been possessio longa,
continua, et pacifica, nec sit ligitima interruptio, long,
continued, peaceable, and without lawful interruption. Domat,
Loix Civ. liv. 3, t. 29, s. 1; Bract. 52, 222, 226; Co. Litt.
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113, b; Pour pouvoir prescire, says the Code Civil, 1. 3, t. 20,
art. 22, 29, il faut une possession continue et non interrompue,
paisible, publique, et a titre de proprietaire. See Knapp's R.
79.
2. The law presumes a grant before the time of legal memory
when the party claiming by prescription, or those from whom he
holds, have had adverse or uninterrupted possession of the
property or rights claimed by prescription. This presumption may
be a mere fiction, the commencement of the user being tor-tious;
no prescription can, however, be sustained, which is not
consistent with such a presumption.
3. Twenty years uninterrupted user of a way is prima facie
evidence of a prescrptive right. 1 Saund. 323, a; 10 East, 476;
2 Br. & Bing. 403; Cowp. 215; 2 Wils. 53. The subject of
prescription are the several kinds of incorporeal rights. Vide,
generally, 2 Chit. Bl. 35, n. 24; Amer. Jurist, No. 37, p. 96;
17 Vin. Ab. 256; 7 com. Dig. 93; Rutherf. Inst. 63; Co. Litt.
113; 2 Conn. R. 584; 9 conn. R. 162; Bouv. Inst. Index, h. t.
4. The Civil Code Louisiana, art. 3420, defines a prescription
to be a manner of acquiring property, or of discharging debts, by
the effect of time, and under the conditions regulated by law.
For the law relating to prescription in that state, see Code,
art. 8420 to 3521. For the difference between the meaning of the
term prescription as understood by the common law, and the same
term in the civil law, see 1 Bro. Civ. Law, 246.
5. The prescription which has the effect to liberate a
creditor, is a mere bar which the debtor may oppose to the
creditor, who has neglected to exercise his rights, or procured
them to be acknowledged during the time prescribed by law. The
debtor acquires this right without any act on his part, it
resalts entirely from the negligence of the creditor. The
prescription does not extinguish the debt, it merely places a bar
in the hands of the debtor, which he may use or not at his choice
against the creditor. The debtor may therefore abandon this
defence, which has been acquired by mere lapse of time, either by
paying the debt, or acknowledging it. If he pay it, he cannot
recover back the money so paid, and if he acknowledge it, he may
be constrained to pay it. Poth. Intr. au titre xiv. des
Prescriptions, Bect. 2. Vide Bouv. Inst. Theo. pars prima, c. 1,
art. 1, §4, s. 3; Limitations.
PRESENCE. The existence of a person in a particular place.
2. In many contracts and judicial proceedings it is necessary
that the parties should be present in order to reader them valid;
for example, a party to a deed when it is executed by himself,
must personally acknowledge it, when such acknowledgment is
required by law, to give it its full force aud effect, and his
presence is indispensable, unless, indeed, another person
represent him as his attoruey, having authority from him for that
purpose.
3. In the criminal law, presence is actual or constructive.
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When a larceny is committed in a house by two men, united in the
same design, and one of them goes into the house, arid commits
the crime, while the other is on the outside watching to prevent
a surprise, the former is actually, an the latter constructively,
present.
4. It is a rule in the civil law, that he who is incapable of
giving his consent to an act, is not to be considered present,
although he be actually in the place; a lunatic, or a man
sleeping, would not therefore be considered present. Dig. 41, 2,
1, 3. And so, if insensible; 1 Dougl. 241; 4 Bro. P. R. 71; 3
Russ. 441; or if the act were done secretly so that he knew
nothing of it. 1 P. Wms. 740.
5. The English statute of fraud, §5, directs that all devises
and bequests of any lands or tenements shall be attested or
subscribed in the presence of said devisor. Under this statute it
has been decided that an actual presence is not indispensable,
but that where there was a constructive presence it was
sufficient; as, where the testatrix executed the will in her
carriage stand- ing in the street before the office of her
solicitor, the witness retired into the office to attest it, and
it being proved that the carriage was accidentally put back, so
that she was in a situation to see the witness sign the will
through the window of the office. Bro. Ch. C. 98; see 2 Curt. R.
320; 2 Salk. 688; 3 Russ. R. 441; 1 Maule & Selw. 294; 2
Car.& P. 491 2 Curt. R. 331. Vide Constructive.
PRESENT. A gift, or wore properly the thing given. It is
provided by the constitution of the United States, art. 1, s. 9,
n, 7, that "no person holding any office of profit or trust under
them, [the United States] shall, without the consent of congress,
accept of any present, emolument, or office, or title of any kind
whatever, from any king, prince, or foreign state."
PRESENTS. This word signifies the writing then actually made
and spoken of; as, these presents; know all men by these
presents, to all to whom these presents shall come.
PRESENTATION, eccl. law. The act of a patron offering his clerk
to the bishop of the diocese to be instituted in a church or
benefice.
PRESENTEE, eccles. law., A clerk who has been presented by his
patron to a bishop in order to be instituted in a church.
PRESENTMENT, crim. law, practice. The written notice taken by a
grand jury of any offence, from their own knowledge or
observation, without any bill of indictment laid before them at
the suit of the government; 4 Bl. Com. 301; upon such
presentment, when 'proper, the officer emloyed to prosecute,
afterwards frames a till of indictment, which is then sent to the
grand jury, and they find it to be a true bill. In an extended
sense presentments include not only what is properly so called,
but also inquisitions of office, and indictments found by a grand
jury. 2 Hawk. c. 25, s. 1.
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2. The difference between a presentment and an inquisition, (q.
v.) is this, that the former is found by a grand jury authorized
to inquire of offences generally, whereas the latter is an
accusation found by a jury specially returned to inquire
concerning the particular offence. 2 Hawk. c. 25, s. 6. Vide,
generally, Com. Dig. Indictment, B Bac. Ab. Indictment, A 1 Chit.
Cr. Law, 163; 7 East, R. 387 1 Meigs. 112; 11 Humph. 12.
3. The writing which contains the accusation so presented by a
grand jury, is also called a presentment. Vide 1 Brock. C. C. R.
156; Grand Jury.
PRESENTMENT, contracts. The production of a bill of exchange or
promissory note to the party on whom the former is drawn, for his
acceptance, or to the person bound to pay either, for payment.
2. The holder of a bill is bound, in order to hold the parties
to it responsible to him, to present it in due time for
acceptance, and to give notice, if it be dishonored, to all tho
parties he intends to hold liable. And when a bill or note
becomes payable, it must be presented for payment.
3. The principal circumstances concerning presentment, are the
person to whom, the place where, and the time when, it is to be
made.
4. - 1. In general the presentment for payment should be made
to the maker of a note, or the drawee of a bill for acceptance,
or to the acceptor, for payment; but a presentment made at a
particular place, when pavable there, is in general sufficient. A
personal demand on the drawee or acceptor is not necessary; a
demand at his usual place of residence of his wife or other agent
is sufficient. 2 Esp. Cas. 509; 5 Esp. Cas. 265 Holt's N. P.
Cas. 313.
5. - 2. When a bill or note is made payable at a particular
place, a presentment, as we have seen, may be made there; but
when the acceptance is general, it must be presented at the house
or place of business of the acceptor. 3 Kent, Com. 64, 65.
6. - 3. In treating of the time for presentment, it must be
considered with reference, 1st. To a presentment for acceptance.
2d. To one for payment. 1st. When the bill is payable at sight,
or after sight, the presentment must be made in reasonable time;
and what this reasonable time is depends upon the circumstances
of each case. 7 Taunt. 397; 1 Dall. 255; 2 Dall. 192; Ibid.
232; 4 Dall. 165; Ibid. 129; 1 Yeates, 531; 7 Serg. & Rawle,
324; 1 Yeates 147. 2d. The presentment of a note or bill for
payment ought to be made on the day it becomes due, and notice of
non-payment given, otherwise the holder will lose the security of
the drawer and endorsers of a bill and the endorsers of a
promissory note, and in case the note or bill be payable at a
particular place and the money lodged there for its payment, the
holder would probably have no recourse against the maker or
acceptor, if he did not present them on the day, and the money
should be lost. 5 Barn. & Ald. 244. Vide 5 Com. Dig. 134; 2
John. Cas. 75; 3 John. R. 230; 2 Caines' Rep. 343; 18 John. R.
230; 2 John. R. 146, 168, 176; 2 Wheat. 373; Chit. on Bills,
Index, h. t.; Smith on Mer. Law, 138; Byles on Bills, 102.
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7. The excuses for not making a presentment are general or
applicable to all persons, who are endorsers; or they are
special and applicable to the particular' endorser only.
8. - 1. Among the former are, 1. Inevitable accident or
overwhelming calamity; Story on Bills, §308; 3 Wend. 488; 2
Smith's R. 224. 2. The prevalence of a malignant disease, by
which the ordinary operations of business are suspended. 2 John.
Cas. 1; 3 M. & S. 267; Anth. N. P. Cas. 35. 3. The breaking out
of war between the country of the maker and that of the holder.
4. The occupation of the country where the note is payable or
where the parties live, by a public enemy, which suspends
commercial operations and intercourse. 8 Cranch, 155 15 John. 57;
16 John. 438 7 Pet. 586 2 Brock. 20; 2 Smith's R. 224. 51. The
obstruction of the ordinary negotiations of trade by the vi's maj
or. 6. Positive interdictions and public regulations of the state
which suspend commerce and intercourse. 7. The utter
impracticability of finding the maker, or ascertaining his place
of residence. Story on Pr. N. 205, 236, 238, 241, 264.
9. - 2. Among the latter or special excuses for not making a
presentment may be enumerated the following: 1. The receiving
the note by the holder from the payee, or other antecedent party,
too late to make a due presentment; this will be an excuse as to
such party. 16 East, 248; 7 Mass. 483; Story, P. N. §§201,
265; 11 Wheat. 431 2 Wheat. 373. 2. The note being an
accommodation note of the maker for the benefit of the endorser.
Story on Bills, §370; see 2 Brock. 20; 7 Harr. & J. 381; 7
Mass. 452; 1 Wash. C. C. R. 461; 2 Wash. C. C. R. 514; 1 Rayw.
271; 4 Mason, 113; 1 Har. & G. 468; 1 Caines, 157; 1 Stew.
175; 5 Pick. 88; 21 Pick. 327. 3. A special agreement by which
the endorser waives the presentment. 8 Greenl. 213; 11 Wheat.
629; Story on Bills, §§371, 373; 6 Wheat. 572. 4. The receiving
security or money by an endorser to secure himself from loss, or
to pay the note at maturity. In this case, when the indemnity or
money is a full security for the amount of the note or bill, no
presentment is requisite. Story on Bills, §374; Story on P. N.
§281; 4 Watts, 328.; 9 Gill & John. 47; 7 Wend. 165; 2
Greenl. 207; 5 Mass. l70; 5 Conn. 175. 5. The receiving the
note by the holder from the endorser, as a collateral security
for another debt. Story on Pr. Notes, §284; Story on Bills,
§372; 2 How. S. C. R. 427, 457.
10. A want of presentment may be waived by the party to be
affected, after a full knowledge of the fact. 8 S. & R. 438; see
6 Wend. 658; 3 Bibb, 102; 5 John. 385; 4 Mass. 347; 7 Mass.
452; Wash. C. C. R. 506; Bac. Ab. Merchant, &c. M. Vide,
generally, 1 Hare & Wall. Sel. Dec. 214, 224. See Notice of
dishonor.
PRESERVATION. keeping safe from harm; avoiding injury. This
term always presupposes a real or existing danger.
2. A jettison, which is always for the preservation of the
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remainder of the cargo, must therefore be made only when there is
a real danger existing. See Average; Jettison.
PRESIDENT. An officer of a company who is to direct the manner
in which business is to be transacted. From the decision of the
president there is an appeal to the body over which he presides.
PRESIDENT OF THE UNITED STATES OF AMERICA. This is the title of
the executive officer of this country.
2. The constitution directs that the executive power shall be
vested in a president of the United States of America. Art. 2, s.
1.
3. This subject will be examined by considering, 1. His
qualifications. 2. Hi's election. 3. The duration of his office.
4. His compensation. 5. His powers.
4. - §1. No person except a natural born a citizen, or a
citizen of the United States at the time of the adoption of this
constitution, shall be eligible to the office of president
neither shall any person be eligible to that office who shall not
have attained the age of thirty-five years, and been fourteen
years a resident within the United States. Art. 2, s. 1, n. 5. In
case of the removal of the president from office, or of his
death, resignation, or inability to discharge the powers and
duties of the said office, the same shall devolve on the
vice-president; and the congress may by law provide for the
removal, death, resignation, or inability both of the president
and vice-president, declaring what officer shall then act as
president and such officer shall act accordingly, until the
disability be removed, or a president shall be elected. Art. 2,
s. 1, n. 6.
5. - §2. He is chosen by electors of president. (q. v.) See
Const. U. S. art. 2, s. 1, n. 2, 3, and 4; 1 Kent, Com. 273
Story on the Constit. §1447, et seq. After his election and
before he enters on the execution of his office, he shall take
the following oath or affirmation: "I do solemnly swear (or
affirm) that I will faithfully execute the office of president of
the United States, and will, to the best of my ability, preserve,
protect and defend the constitution of the United States."
Article 2, s. 1, n. 8 and 9.
6. - §3. He holds his office for the term of four years; art.
2, s. 1, n. 1; he is reeligible for successive terms, but no one
has ventured, contrary to public opinion, to be a candidate for a
third term.
7. - §4. The president shall, at stated times, receive for his
services, a compensation which shall neither be increased nor
diminished during the period for which he shall have been
elected; and he shall not receive, within that period, any other
emolument from the United States, or any of them. Art. 2, sect.
1, n. 7. The act of the 24th September, 1789, ch. 19, fixed the
salary of the president at twenty-five thousand dollars. This is
his salary now.
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8. - §5. The powers of the president are to be exercised by him
alone, or by him with the concurrence of the senate.
9. - 1. The constitution has vested in him alone, the following
powers: be is commander-in-chief of the army and navy of the
United States, and of the militia of the several states, when
called into the actual service of the United States; he may
require the opinion, in writing, of the principal officers of
each of the executive departments, upon any subject relating to
the duties of their respective offices; and he shall have the
power to grant reprieves and pardons for offences against the
United States, except in cases of impeachluent. Art. 2, s. 2, n.
2. He may appoint all officers of the United States, whose
appointments are not otherwise provided for in the constitution,
and which shall be established by law, when congress shall vest
the appointment of such officers in the president alone. Art. 2,
s. 2, n. 2. He shall have power to fill up all vacancies that may
happen during the recess of the senate, by granting commissions,
which shall expire at the end of their next session. Art. 2,
sect. 2, n. 3. He shall from time to time give congress
information of the state of the Union, and recommend to their
consideration such measures as he shall judge necessary and
expedient; he may, on extraordinary occasions, convene both
houses, or either of them, and in case of disagreement between
them with respect to the time of adjournment, he may adjourn them
to such time as he shall think proper he shall receive
ambassadors and other public ministers; he shall take care that
the laws be faithfully executed, and shall commission all
officers of the United States.
10. - 2. His power, with the concurrence of the senate, is as
follows: to make treaties, provided two-thirds of the senators
present concur; nominate, and by and with the advice and consent
of the senate, shall appoint ambassadors, other public ministers
and consuls, judges of the supreme court, and all other officers
of the United States whose appointments are not provided for in
the constitution, and which have been established by law; but
the congress may by law vest the appointment of such inferior
officers, as they shall think proper, in the president alone, in
the courts of law, or in the heads of departments. Art. 2, s. 2,
n. 2. Vide 1 Kent, Com. Lect. 13; Story on the Const. B. 3, ch.
36; Rawle on the Const. Index, h. t.; Serg. Const. L. Index, h.
t.
PRESS. By a figure this word signifies the art of printing. The
press is free.
2. All men have a right to print and publish whatever they may
deem proper, unless by doing so they infringe the rights of
another, as in the case of copyrights, (q. v.) when they may be
enjoined. For any injury they may commit against the public or
individuals they may be punished, either by indictment, or by a
civil action at the suit of the party injured, when the injury
has been committed against a private individual. Vide Const. of
the U. S. Amendm. art. 1, and Liberty of the Press.
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PRESUMPTION, evidence. An inference as to the existence of one
fact, from the existence of some other fact, founded on a
previous experience of their connexion. 3 Stark. Ev. 1234; 1
Phil. Ev. 116; Gilb. Ev. 142; Poth. Tr. des. Ob. part. 4, c. 3,
s. 2, n. 840. Or it, is an opinion, which circumstances, give
rise to, relative to a matter of fact, which they are supposed to
attend. Menthuel sur les Conventions, liv. 1, tit. 5.
2. To constitute such a presumption, a previous experience of
the connexion between the known and inferred facts is essential,
of such a nature that as soon as the existence of the one is
established, admitted or assumed, an inference as to the
existence of the other arises, independently of any reasoning
upon the subject. It follows that an inference may be certain or
not certain, but merely, probable, and therefore capable of being
rebutted by contrary proof.
3. In general a presumption is more or less strong according as
the fact presumed is a necessary, usual or infrequent consequence
of the fact or facts seen, known, or proven. When the fact
inferred is the necessary consequence of the fact or facts known,
the presumption amounts to a proof when it is the usual, but not
invariable consequence, the presumption is weak; but when it is
sometimes, although rarely,the consequence of the fact or facts
known, the presumption is of no weight. Menthuel sur les
Conventions, tit. 5. See Domat, liv. 9, tit. 6 Dig. de
probationibus et praesumptionibus.
4. Presumptions are either legal and artificial, or natural.
5. - 1. Legal or artificial presumptions are such as derive
from the law a technical or artificial, operation and effect,
beyond their mere natural. tendency to produce belief, and
operate uniformly, without applying the process of reasoning on
which they are founded, to the circumstances of the particular
case. For instance, at the expiration of twenty years, without
payment of interest on a bond, or other acknowledgment of its
existence, satisfaction is to be presumed; but if a single day
less than twenty years has elapsed, the presumption of
satisfaction from mere lapse of time, does not arise; this is
evidently an artificial and arbitrary distinction. 4 Greenl. 270;
10 John. R. 338; 9 Cowen, R. 653; 2 M'Cord, R. 439; 4 Burr.
1963; Lofft, 320; 1 T. R. 271; 6 East, R. 215; 1 Campb. R.
29. An example of another nature is given under this head by the
civilians. If a mother and her infant at the breast perish in the
same conflagration, the law presumes that the mother survived,
and that the infant perished first, on account of its weakness,
and on this ground the succession belongs to the heirs of the
mother. See Death, 9 to 14.
6. Legal presumptions are of two kinds: first, such as are
made by the law itself, or presumptions of mere law; secondly,
such as are to be made by a jury, or presumptions of law and
fact.
7. - 1st. Presumptions of mere law, are either absolute and
conclusive; as, for instance, the presumption of law that a bond
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or other specialty was executed upon a good consideration, cannot
be rebutted by evidence, so long as the instrument is not
impeached for fraud; 4 Burr. 2225; or they are not absolute,
and may be rebutted evidence; for example, the law presumes that
a bill of exchange was accepted on a good consideration, but that
presumption may be rebutted by proof to the contrary.
8. - 2d. Presumptions of law and fact are such artificial
presumptions as are recognized aud warranted by the law as the
pro er inferences to be made by juries under particular
circumstances; for instance, au unqualified refusal to deliver
up the goods on demand made by the owner, does not fall within
any definition of a conversion, but inasmuch as the detention is
attended with all the evils of a conversion to the owner, the law
makes it, in its effects and consequences, equivalent to a
conversion, by directing or advising the jury to infer a
conversion from the facts of demand and refusal.
9. - 2. Natural presumptions depend upon their own form and
efficacy in generating belief or conviction on the mind, as
derived from these connexions which are pointed out by
experience; they are wholly independent of any artificial
connexions and relations, and differ from mere presumptions of
law in this essential respect, that those depend, or rather are a
branch of the particular system of jurisprudence to which they
belong; but mere natural presumptions are derived wholly by
means of the common experience of mankind, from the course of
nature and the ordinary habits of society.
Vide, generally, Stark. Ev. h. t.; 1 Phil. Ev. 116; Civ. Code
of Lo. 2263 to 2267; 17 Vin. Ab. 567; 12 Id. 124; 1 Supp. to
Ves. jr. 37, 188, 489; 2 Id. 51, 223, 442; Bac. Ab. Evidence,
H; Arch. Civ. Pl. 384; Toull. Dr. Civ. Fr. liv. 3, t. 3, o. 4,
s. 3; Poth. Tr. des Obl. part 4, c. 3, s. 2; Matt. on Pres.;
Gresl. Eq. Ev. pt. 3, c. 4, 363; 2 Poth. Ob. by Evans, 340; 3
Bouv. Inst. n. 3058, et seq.
PRESUMPTIVE HEIR. One who, if the ancestor should die
immediately, would under the present circumstances of things be
his heir, but whose right of inheritance may be defeated by the
contingency of some nearer heir being born; as a brother, who is
the presumptive heir, may be defeated by the birth of a child to
the ancestor. 2 Bl. Com. 208.
PRET A USAGE. Loan for use. This phrase is used in the French
law instead of commodatum. (q. v.)
PRETENTION, French law. The claim made to a thing which a party
believes himself entitled to demand, but which is not admitted or
adjudged to be his.
2. The words rights, actions and pretensions, are usually
joined, not that they are synonymous, for right is something
positive and certain, action is what is demanded, while
pretention is sometimes not even accompanied by a demand.
PRETERITION, civil law. The omission by a testator of some one
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of his heirs who is entitled to a legitime, (q. v.) in the
succession.
2. Among the Romans, the preterition of children when made by
the mother were presumed to have been made with design; the
preterition of sons by any other testator was considered as a
wrong and avoided the will, except the will of a soldier in
service, which was not subject to so much form.
PRETEXT. The reasons assigned to justify an act, which have
only the appearance of truth, and which are without foundation;
or which if true are not the true reasons for such act. Vattel,
liv. 3, c. 3, 32.
PRETIUM AFFECTIONIS. An imaginary value put upon a thing by the
fancy of the owner in his affection for it, or for the person
from whom he obtained it. Bell's Dict. h. t.
2. When an injury has been done to an article, it has been
questioned whether in estimating the damage there is any just
ground in any case, for admitting the pretium affectionis? It
seems that when the injury has been done accidentally by culpable
negligence, such an estimation of damages would be unjust, but
when the mischief has been intentional, it ought to be so
admitted. Kames on Eq. 74, 75.
PREVARICATION. Praevaricatio, civil law. The acting with
unfaithfulness and want of probity. The term is applied
principally to the act of concealing a crime. Dig. 47, 15, 6.
PREVENTION, civil and French law. The right of a judge to take
cognizance of an action over which he has concurrent jurisdiction
with another judge.
2. In Pennsylvania it has been ruled that a justice of the
peace cannot take cognizance of a cause which has been previously
decided by another justice. 2 Dall. 77; Id. 114.
PRICE, contracts. The consideration in money given for the
purchase of a thing.
2. There are three requisites to the quality of a price iii
order to make a sale.
3. - 1. It must be serious, and such as may be demanded: if,
therefore, a person were to sell me an article, and by the
agreement, reduced to writing, he were to release me from the
payment, the transaction would no longer be a sale, but a gift,
Poth. Vente, n. 18.
4. - 2. The second quality of a price is, that the price be
certain and determinate; but what may be rendered certain is
considered as certain if, therefore, I sell a thing at a price to
be fixed by a third person, this is sufficiently certain,
provided the third person make a valuation and fix the price.
Poth. Vente, n. 23, 24.
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5. - 3. The third quality of a price is, that it consists in
money, to be paid down, or at a future time, for if it be of any
thing else, it will no longer be a price, nor the contract a
sale, but exchange or barter. Poth. Vente, n. 30; 16 Toull. n.
147.
6. The true price of a thing is that for which things of a like
nature and quality are usually sold in the place where situated,
if real property; or in the place where exposed to sale, if
personal. Poth. Contr. de Vente, n. 243. The first price or cost
of a thing does not always afford a sure criterion of its value.
It may have been bought very dear or very cheap. Marsh. Ins. 620,
et seq.; Ayliffe's Pand. 447; Merlin, Repert. h. t.; 4 Pick.
179; 8 Pick. 252; 16 Pick. 227.
7. In a declaration in trover it is usual, when the chattel
found is a living one, to lay it as of such a price when dead, of
such a value. 8 Wentw. Pl. 372, n; 2 Lilly's Ab. 629. Vide Bouv.
Inst. Index, h. t.; Adjustment; Inadequacy of price; Pretium
offectionis.
PRICE CURRENT. The price for which goods, usually sell in the
market. A printed newspaper containing a list of such prices is
also called a price current.
PRIMA FACIE. The first blush; the first view or appearance of
the business; as, the holder of a bill of exchange, indorsed in
blank, is prima facie its owner.
2. Prima facie evidence of a fact, is in law sufficient to
establish the fact, unless rebutted. 6 Pet. R. 622, 632; 14 Pet.
R. 334. See, generally, 7 J. J. Marsh, 425; 3 N. H. Rep. 484; 3
Stew. & Port. 267; 5 Rand. 701; 1 Pick. 332; 1 South. 77; 1
Yeates, 347; Gilp. 147; 2 N. & McCord, 320; 1 Miss. 334; 11
Conn. 95; 2 Root, 286; 16 John. 66, 136; 1 Bailey, 174: 2 A.
K. Marsh. 244. For example, when buildings are fired by sparks
emitted from a locomotive engine passing along the road, it is
prima facie evidence of negligence on the part of those who have
the charge of it. 3 Man. Gr. & Sc. 229.
PRIMA TONSURA. A grant of a right to have the first crop of
grass. 1 Chit. Pr. 181.
PRIMAGE, merc. law. A duty payable to the master and mariner of
a ship or vessel; to the master for the use of his cables and
ropes to discharge the goods of the merchant; to the mariners
for lading and unlading in any port or haven. Merch. Dict. h. t.;
Abb. on Ship. 270.
2. This payment appears to be of very ancient date, and to be
variously regulated in different voyages and trades. It is
sometimes called the master's hat money. 3 Chit. Com. Law, 431.
PRIMARY. That which is first or principal; as primary
evidence, or that evidence which is to be admitted in the first
instance, as distinguished from secondary evidence, which is
allowed only when primary evidence cannot be had.
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2. A primary obligation is one which is the principal object of
the contract; for example, the primary obligation of the seller
is to deliver the thing sold, and to transfer the title to it. It
is distinguished from the accessory or secondary obligation to
pay damages for not doing so. 1 Bouv. Inst. n. 702.
PRIMARY EVIDFNCE. The best evidence of which the case in its
nature is susceptible. 3 Bouv. Inst. n. 3053. Vide Evidence.
PRIMARY POWERS. The principal authority given by a principal to
his agent; it differs from mediate powers. (q. v.) Story, Ag.
§58.
PRIMATE, eccles. law.. An archbishop who has jurisdiction over
one or several other metropolitans.
PRIMER ELECTION. A term used to signify first choice.
2. In England, when coparcenary lands are divided, unless it is
otherwise agreed, the eldest sister has the first choice of the
purparts; this part is called the enitia pars. (q. v.) Sometimes
the oldest sister makes the partition, and in that case, to
prevent partiality, she takes the last choice. Hob. 107; Litt.
§§243, 244, 245; Bac. Ab. Coparceners, C.
PRIMER SEISIN, Eng. law. The right which the king had, when any
of his tenants died seised of a knight's fee, to receive of the
heir, provided he were of fall age, one whole year's profits of
the lands, if they were in immediate possession; and half a
year's profits, if the lands were in reversion, expectant on an
estate for life. 2 Bl. Com. 66.
PRIMOGENITURE. The state of being first born the eldest.
2. Formerly primogeniture gave a title in cases of descent to
the oldest son in preference to the other children; this unjust
distinction has been geuerally abolished in the United States.
PRIMOGENITUS. The first born. 1 Ves. 290 and see 3 M. & S. 25;
8 Taunt. 468; 3 Vern. 660.
PRIMUM DECRETUM. In the courts of admiralty, this name is given
to a provisional decree. Bac. Ab. The Court of Admiralty, E.
PRINCE. In a general sense, a sovereign the ruler of a nation
or state. The son of a king or emperor, or the issue of a royal
family; as, princes of the blood. The chief of any body of men.
2. By a clause inserted in policies of insurance, the insurer
is liable for all losses occasioned by "arrest or detainment of
all kings, princes, and people, of what nation, condition, or
quality soever." 1 Bouv. Inst. n. 1218.
PRINCIPAL. This word has several meanings. It is used in
opposition to accessary, to show the degree of crime committed by
two persons; thus, we say, the principal is more guilty than the
accessary after the fact.
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2. In estates, principal is used as opposed to incident or
accessory; as in the following rule: "the incident shall pass
by the grant of the principal, but not the principal by the grant
of the incident. Accessorium non ducit, sed sequitur suum
principale." Co. Litt. 152, a.
3. It is used in opposition to agent, and in this sense it
signifies that the principal is the prime mover.
4. It is used in opposition to interest; as, the principal
being secured tho interest will follow.
5. It is lased also in opposition to surety; thus, we say the
principal is answerable before the surety.
6. Principal is used also to denote the more important; as,
the principal person.
7. In the English law, the chief person in some of the inns of
chancery is called principal of the house. Principal is also used
to designate the best of many things as, the best bed, the best
table, and the like.
PRINCIPAL, contracts. One who, being competent to contract, and
who is sui juris, employs another to do any act for his own
benefit, or on his own account.
2. As a general rule, it may be said, that every person, sui
juris, is capable of being a principal, for in all cases where a
man has power as owner, or in his own right to do anything, he
may do it by another. 16 John. 86; 9 Co. 75; Com. Dig.
Attorney, C 1; Heinec. ad Pand. P. 1, lib. 3, tit. §424.
3. Married women, and persons who are deprived of
understanding, as idiots, lunatics, and others, not sui juris,
are wholly incapable of entering into any contract, and,
consequently, cannot appoint an agent. Infants and married women
are generally, incapable but, under special circumstances, they
may make such appointments. For instance, an infant may make an
attorney, when it is for his benefit; but lie cannot enter into
any contract which is to Iiis prejudice. Com. Dig. Enfant, C 2;
Perk. 13; 9 Co. 75; 3 Burr. 1804. A married woman cannot, in
general, appoint an agent or attorney, and when it is requisite
that one should be appointed, the hushand generally appoints for
both. Perhaps for her separate property she may, with her
hushand, appoint an agent or attorney; Cro. Car. 165,; 2 Leon.
200; 2 Buls. R. 13; but this seems to be doubted. Cro. Jac.
617; Yelv. 1; 1 Brownl. 134; 2 Brownl. 248; Adams' Ej. 174;
Runn. Ej. 148.
4. A principal has rights which he can enforce, and is liable
to obligations which he must perform. These will be briefly
considered: 1. The rights to which principals are entitled arise
from obligations due to them by their agents, or by third
persons.
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5. - 1st. The rights against their agents, are, 1. To call them
to an account at all times, in relation to the business of their
agency. 2. When the agent violates his obligations to his
principal, either by exceeding his authority, or by positive
misconduct, or by mere negligence or omissions in the discharge
of the functions of his agency, or in any other manner, and any
loss or damage falls on his principal, the latter will be
entitled to full indemnity. Paley on Ag. by Lloyd, 7, 71, 74, and
note 2 12 Pick. 328; 1 B. & Adolph. 415; 1 Liverm. Ag. 398. 3.
The principal has a right to supersede his agent, where each may
maintain a suit against a third person, by suing in his own name;
and he may, by his own intervention, intercept, suspend, or
extinguish the right of the agent under the contract. Paley Ag.
by Lloyd, 362; 7 Taunt. 237, 243; 1 M. & S. 576 1 Liverm. Ag.
226-228; 2 W. C. C. R. 283; 3 Chit. Com. Law, 201-203.
6. - 2d. The principal's rights against third persons. 1. When
a contract is made by the agent with a third person in the name
of his principal, the latter may enforce it by action. But to
this rule there are some exceptions 1st. When the instrument is
under seal, and it has been exclusively made between the agent
and the third person; as, for example, a charter party or
bottomry bond iii this case the principal cannot sue on it. See 1
Paine, Cir. R. 252; 3 W. C. C. R. 560; 1 M. &. S. 573; Abbott,
Ship, pt. 3, c. 1, s. 2. 2d. When an exclusive credit is given to
and by the agent, and therefore the principal cannot be
considered in any manner a party to the contract, although he may
have authorized it, and be entitled to all the benefits arising
from it. The case of a foreign factor, buying or selling goods,
is an example of this kind: he is treated as between himself and
the other party, as the sole contractor, and the real principal
cannot sue or be sued on the contract. This, it has been well
observed, is a general rule of commercial law, founded upon the
known usage of trade; and it is strictly adhered to for the
safety and convenience of foreign commerce. Story, Ag. §423;
Smith Mer. Law, 66; 15 East, R. 62; 9 B. & C. 87. 3d. When the
agent, has a lien or claim upon the property bought or sold, or
upon its proceeds, when it equals or exceeds the amount of its
value. Story, Ag. §§407, 408, 424.
7. - 2. But contracts are not unfrequently made without
mentioning the name of the principal; in such case he may avail
himself of the agreement, for the contract will be treated as
that of the principal, as well as of the agent. Story, Ag. §109,
111, 403, 410, 417, 440; Paley, Ag. by Lloyd, 21, 22; Marsh.
Ins. b. 1, c. 8, §3, p. 311; 2 Kent's Com. 3d edit. 630; 3
Chit. Com. Law, 201; vide 1 Paine's C. C. Rep. 252.
8. - 3. Third persons are also liable to the principal for any
tort or injury done to his property or rights in the course of
the agency. Pal. Ag. by Lloyd, 363; Story, Ag. §436; 3 Chit.
Com. Law, 205, 206; 15 East, R. 38.
9. - 2. The liabilities of the principal are either to his
agent or to third persons.
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10. - 1st. The liabilities of the principal to his agent, are,
1. To reimburse him all expenses he may have lawfully incurred
about the agency. Story, Ag. §335 Story, Bailm. §196, 197; 2
Liv. Ag. 11 to 33.
2. To pay him his commissions as agreed upon, or according to
the usage of trade, except in cases of gratuitous agency. Story,
Ag. §323; Story, Bailm. 153, 154, 196 to 201. 3. To indemnify
the agent when he has sustained damages in consequence of the
principal's conduct for example, when the agent has innocently
sold the goods of a third person, under the direction or
authority of his principal, and a third person recovers damages
against the agent, the latter will be entitled to reimbursement
from the principal. Pal. Ag. by Lloyd, 152, 301; 2 John. Cas.
54; 17 John. 142; 14 Pick. 174.
11. - 2d. The liabilities of the principal to third persons,
are, 1. To fulfii all the engagements made by the agent, for or
in the name of the principal, and which come within the scope of
his authority. Story, Ag. §126.
2. When a man stands by and permits another to do an act in his
name, his authority will be presumed. Vide Authority, and 2 Kent,
Com. 3d edit. 614; Story, Ag. §89, 90, 91; and articles Assent;
Consent.
3. The principal is liable to third persons for the
misfeasance, negligence, or omission of duty of his agent; but
he has a remedy over against the agent, when the injury has
occurred in consequence of his misconduct or culpable neglect;
Story, Ag. §308; Paley, Ag. by Lloyd, 152, 3; 1 Metc. 560; 1
B. Mont. 292; 5 B. Monr. 25; 9 W. & S. 72; 8 Pick. 23; 6 Gill
& John. 292; 4 Q. B. 298; 1 Hare & Wall. Sel. Dee. 467; Dudl.
So. Car. R. 265, 268; 5 Humph. 397; 2 Murph. 389; 1 Ired. 240;
but the principal is not liable for torts committed by the agent
without authority. 5 Humph. 397; 2 Murph. 389; 19 Wend. 343; 2
Metc. 853. A principal is also liable for the misconduct of a
sub-agent, when retained by his direction, either express or
implied. 1 B. & P. 404; 15 East, 66.
12. The general, rule, that a principal cannot be charged with
injuries committed by his agent without his assent, admits of one
exception, for reasons of policy. A sheriff is liable, even under
a penal statute, for all injurious acts, wilful or negligent,
done by his appointed officers, colore officii, when charged and
deputed by him to execute the law. The sheriff is, therefore,
liable where his deputy wrongfully executes a writ; Dougl. 40;
or where he takes illegal fees. 2 E. N. P. C. 585.
13. But the principal may be liable for his agent's misconduct,
when he has agreed, either expressly or by implication, to be so
liable. 8 T. R . 531; 2 Cas. N. P. C. 42. Vide Bouv. Inst.
Index, h. t.; Agency; Agent.
PRINCIPAL, crim. law. A principal is one who is the actor in
the commission of a crime.
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2. Principals are of two kinds; namely, 1. Principals in the
first degree, are those who have actually with their own hands
committed the fact, or have committed it through an innocent
agent incapable himself, of doing so; as an example of the
latter kind, may be mentioned the case of a person who incites a
child wanting discretion, or a person non compos, to the
commission of murder, or any other crime, the incitor, though
absent, when the crime was committed, is, ex necessitate, liable
for the acts of his agent and is a principal in the first degree.
Fost. 340; 1 East, P. C. 118; 1 Hawk. c. 31, s. 7; 1 N. R. 92;
2 Leach, 978. It is not requisite that each of the principals
should be present at the entire transaction. 2 East, P. C. 767.
For example, where several persons agree to forge an instrument,
and each performs some part of the forgery in pursuance of the
common plan, each is principal in the forgery, although one may
be away when it is signed. R. & R. C. C. 304; Mo. C. C. 304,
307.
3. - 2. Principals in the second degree, are those who were
present aiding and abetting the commission of the fact. They are
generally termed aiders and abettors, and sometimes, improperly,
accomplices. (q. v.) The presence which is required in order to
make a man principal in the second degree, need not be a strict
actual, immediate presence, such a presence as would make him an
eye or ear witness of what passes, but may be a constructive
presence. It must be such as may be sufficient to afford aid and
assistance to the principal in the first degree. 9 Pick. R. 496;
1 Russell, 21; Foster, 350.
4. It is evident from the definition that to make a wan a
principal, he must be an actor in the commission of the crime
and, therefore, if a man happen merely to be present when a
felony is committed without taking any part in it-or aiding those
who do, he will not, for that reason, be considered a principal.
1 Hale, P. C. 439; Foster, 350.
PRINCIPAL CONTRACT. One entered into by both parties, on their
own accounts, or in the several qualities they assume. It differs
from an accessory contract. (q. v.) Vide Contract.
PRINCIPAL OBLIGATION. That obligation which arises from the
principal object of the engagement which has been contracted
between the parties. It differs from an accessory obligation. (q.
v.) For example, in the sale of a horse, the principal obligation
of the seller is to deliver the horse; the obligation to take
care of him till delivered is an accessory engagement. Poth. Obl.
n. 182. By principal obligation is also understood tho engagement
of one who becomes bound for himself and not for the benefit of
another. Poth. Obl. n. 186.
PRINCIPLES. By this term is understood truths or propositions
so clear that they cannot be proved nor contradicted, unless by
propositions which are still clearer. They are of two kinds, one
when the principle is universal, and these are kuown as axioms or
maxims; as, no one can transmit rights which he has not; the
accessory follows the principal, &c. The other class are simply
called first principles. These principles have known marks by
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which they may always be recognized. These are, 1. That they are
so clear that they cannot be proved by anterior and more manifest
truths. 2, That they are almost universally received. 3. That
they are so strongly impressed on our minds that we conform
ourselves to them, whatever may be our avowed opinions.
2. First principles have their source in the sentiment of our
own existence, and that which is in the nature of things. A
principle of law is a rule or axiom which is founded in the
nature of the subject, and it exists before it is expressed in
the form of a rule. Domat, Lois Civiles, liv. prel. t. 1, s. 2
Toull. tit. prel. n. 17. The right to defend one's self,
continues as long as an unjust attack, was a principle before it
was ever decides by a court, so that a court does Dot establish
but recognize principles of law.
3. In physics, by principle is understood that which
constitutes the essence of a body, or its constituent parts. 8 T.
R. 107. See 2 H. Bl. 478. Taken in this sense, a principle cannot
be patented; but when by the principle of a machine is meant the
modus operandi, the peculiar device or manner of producing any
given effect, the application of the principle may be patented. 1
Mason, 470; 1 Gallis, 478; Fessend. on Pat. 130; Phil. on Pat.
95, 101; Perpigna, Manuel des Inventeurs, &c., c. 2, s. 1.
PRINTING. The art of impressing letters; the art of making
books or papers by impressing legible characters.
2. The right to print is guarantied by law, and the abuse of
the right renders the guilty person liable to punishment. See
Libel,; Liberty of the Press; Press.
PRIORITY. Going before; opposed to posteriority. (q. v.)
2. He who has the precedency in time has the advantage in
right, is the maxim of the law; not that time, considered barely
in itself, can make any such difference, but because the whole
power over a thing being secured to one person, this bars all
others from obtaining a title to it afterwards. 1 Fonb. Eq. 320.
3. In the payment of debts, the United States are entitled to
priority when the debtor is insolvent, or dies and leaves an
insolvent estate. The priority was declared to extend to cases in
which the insolvent debtor had made a vol-untary assignment of
all his property, or in which his effects had been attached as an
absconding or absent debtor, on which an act of legal bankruptcy
had been committed. 1 Kent, Com. 243; 1 Law Intell. 219, 251;
and the cases there cited.
4. Among common creditors, he who has the oldest lien has the
preference; it being a maxim both of law and equity, qui prior
est tempore, potior est jure. 2 John. Ch. R. 608. Vide
Insolvency; and Serg. Const. La*, Index, h. t.
PRISAGE. The name of an ancient duty taken by the English crown
on wines imported into England. Bac. Ab. Smuggling and Customs,
C. 2; Harg. L. Tr. 75.
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PRISON. A legal prison is the building designated by law, or
used by the sheriff, for the confinement, or detention of those
whose persons are judicially ordered to be kept in custody. But
in cases of necessity, the sheriff may make his own house, or any
other place, a prison. 6 John. R. 22. 2. An illegal prison is one
not authorized by law, but established by private authority;
when the confinement is illegal, every place where the party is
arrested is a prison; as, the street, if he be detained in
passing along. 4 Com. Dig. 619; 2 Hawk. P. C. c. 18, s. 4; 1
Buss. Cr. 378; 2 Inst. 589.
PRISON BREAKING. The act by which a prisoner, by force and
violence, escapes from a place where he is lawfully in custody.
This is an offence at common law.
2. To constitute this offence, there must be, 1. A lawful
commitment of the prisoner; vide Regular and Irregular process.
2. An actual breach with force and violence of the prison, (q.
v.) by the prisoner himself or by others with his privity and
procurement. Russ. & Ry. 458; 1 Russ. Cr. 380. 3. The prisoner
must escape. 2 Hawk. P. C. c. 18, s. 12; vide 1 Hale P. C. 607;
4 Bl. Com. 130; 2 Insts. 500; 2 Swift's Dig. 327; Alis. Prin.
555; Dalloz, Dict. mot Effraction.
PRISONER One held in confinement against his will.
2. Prisoners are of two kinds, those lawfully confined, and
those unlawfully imprisoned.
3. Lawful prisoners are either prisoners charged with crimes,
or for a civil liability. Those charged with crimes are either
persons accused and not tried, and these are considered innocent,
and are therefore entitled to be treated with as little severity
as possible, consistently with the certain detention of their
persons; they are entitled to their discharge on bail, except in
capital cases, when the proof is great; or those who have been
convicted of crimes, whose imprisonment, and the mode of
treatment they experience, is intended as a punishment, these are
to be treated agreeably to the requisitions of the law, and in
the United States, always with humanity. Vide Penitentiary.
Prisoners in civil cases, are persons arrested on original or
mesne process, and these may generally be discharged on bail;
and prisoners in execution, who cannot be discharged, except
under the insolvent laws.
4. Persons unlawfully confined, are those who are not detained
by virtue of some lawful, judicial, legislative; or other
proceeding. They are entitled to their immediate discharge on
habeas corpus. For the effect of a contract entered into by a
prisoner, see 1 Salk. 402, n.; 6 Toull. 82.
5. By tho resolution. of congress, of September 23, 1789, it
was recommended to the legislatures of the several states, to
pass laws, making it expressly the duty of the keepers of those
jails to receive and safely keep therein, all persons committed
under the authority of the United States, until they shall be
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discharged by due course of the laws thereof, under the like
penalties as in the case of prisoners committed under the
authority of such states respectively. And by the resolution of
March 3, 1791, it is provided, that if any state shall not have
complied with the above recommendation the marshal in such state,
under the direction of the judge of the district, shall be
authorized to hire a convenient place to serve as a temporary
jail. See 9 Cranch, R. 80.
PRISONER OF WAR. One who has been captured while fighting under
the banner of some state. He is a prisoner, although never
coufined in a prison.
2. In modern times, prisoners are treated with more humanity
than formerly; the individual captor has now no personal right
to his prisoner. Prisoners are under the superintendence of the
government, and they are now frequently exchanged. Vide 1 Kent,
Com . 14.
3. It is a general rule, that a prisoner is out of the
protection of the laws of the state, so for, that he can have no
civil remedy under them, and he can, therefore, maintain no
action. But his person is protected against all unlawful acts.
Bac. Ab. Abatement, b. 3; Bac. Ab. Aliens, D.
PRIVATE. Not general, as a private act of the legislature; not
in office; as, a private person, as well as an officer, may
arrest a felon; individual, as your private interest; not
public, as a private way, a private nuisance.
PRIVATEER war. A vessel owned by one or by a society of private
individuals, armed and equipped at his or their expense, for the
purpose of carrying on a maritime war, by the authority of one of
the belligerent parties.
2. For the purpose of encouraging the owners of private armed
vessels, they are usually allowed to appropriate to themselves
the property they capture, or, at least, a large proportion of
it. 1 Kent, Com. 96; Posh. du Dr. de Propr. n. 90 et seq. See 2
Dall. 36; 3 Dall. 334; 4 Cranch, 2; 1 Wheat. 46; 3 Wheat.
546; 2 Gall. R. 19; Id. 526; 1 Mason, R. 365 3 Wash. C. C. R.
209 2 Gall. R. 56; 5 Wheat. 338; Mann. Com. 1.16.
PRIVEMENT ENCEINTE. This term is used to signify that a woman
is pregnant, but not quick with child; (q. v.) and vide Wood's
Inst. 662; Enceinte; Foetus; Pregnancy.
PRIVIES. Persons who are partakers, or have an interest in any
action or thing, or any relation to another. Wood, Inst. b. 2, c.
3, p. 255; 2 Tho. Co. Lit. 506 Co. Lit. 271, a.
2. There aye several kinds of privies, namely, privies in
blood, as the heir is to the ancestor; privies in
representation, as is the executor or administrator to the
deceased privies in estate, as the relation between the donor-and
donee, lessor and lessee; privies in respect to contracts; and
privies on account of estate and contract together. Tho. Co. Lit.
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506; Prest. Con v. 327 to 345. Privies have also been divided
into privies in fact, and privies in law. 8 Co. 42 b. Vide Vin.
Ab. Privily; 5 Coin. Dig. 347; Ham. on Part. 131; Woodf. Land.
& Ten. 279, 1 Dane's Ab. c. 1, art. 6.
PRIVILEGE, civil law. A right which the nature of a debt gives
to a creditor, and which entitles him to be preferred before
other creditors. Louis. Code, art. 3153; Dict. de Juris. art.
Privilege: Domat, Lois Civ. liv. 2, t. 1, s. 4, n. 1.
2. Creditors of the same rank of privileges, are paid in
concurrence, that is, on an equal footing. Privileges may exist
either in movables, or immovables, or both at once. They are
general or special, on certain movables. The debts which are
privileged on all the movables in general, are the following,
which are paid in this order. 1. Funeral charges. 2. Law charges,
which are such as are occasioned by the prosecution of a suit
before the courts. But this name applies more particularly to
costs, which the party cast has to pay to the party gaining the
cause. It is in favor of these only that the law grants the
privilege. 3. Charges, of whatever nature, occasioned by the last
sickness, concurrently among those to whom they are due; see
Last sickness. 4. The wages of servants for the year past, and so
much as is due for the current year. 5. Supplies of provisions
made to the debtor or his family during the last six months, by
retail dealers, such as bakers, butchers, grocers; and during
the last year by keepers of boarding houses and taverns. 6. The
salaries of clerks, secretaries, and other persons of that kind.
7. Dotal rights, due to wives by their hushands.
3. The debts which are privileged on particular movables, are,
1. The debt of a workman or artizan for the price of his labor,
on the movable which he has repaired, or made, if the thing
continues still in his possession. 2. That debt on the pledge
which is in the creditor's possession. 3. The carrier's charges
and accessory expenses on the thing carried. 4. The price due on
movable effects, if they are yet in the possession of the
purchaser; and the like. See Lien.
4. Creditors have a privilege on immovables, or real estate in
some, cases, of which the following are instances: 1. The vendor
on the estate by him sold, for the payment of the price, or so
much of it as is due whether it be sold on or without a credit.
2. Architects and undertakers, bricklayers and other workmen
employed in constructing, rebuilding or repairing houses,
buildings, or making other works on such houses, buildings, or
works by them constructed, rebuilt or repaired. 3. Those who have
supplied the owner with materials for the construction or repair
of an edifice or other work, which he has erected or repaired out
of these materials, on the edifice or other work constructed or
repaired. Louis. Code, art. 3216. See, generally, as to
privilege. Louis. Code, tit. 21; Code Civ. tit. 18; Dict. de
Juris. tit. Privilege; Lien; Last sickness; Preference.
PRIVILEGE, mar. law. An allowance to the master of a ship of
the general nature with primage, (q. v.) being compensation or
rather a gratuity customary in certain trades, and which the law
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assumes to be a fair and equitable allowance, because the
contract on both sides is made under the knowledge such usage by
the parties. 3 Chit. Com. Law, 431.
PRIVILEGE, rights. This word, taken its active sense, is a
particular law, or a particular disposition of the law, which
grants certain special prerogatives to some persons, contrary to
common right. In its passive sense, it is the same prerogative
granted by the same particular law.
2. Examples of privilege may be found in all systems of law;
members of congress and of the several legislatures, during a
certain time, parties and witnesses while attending court; and
coming to and returning from the same; electors, while going to
the election, remaining on the ground, or returning from the
same, are all privileged from arrest, except for treason, felony
or breach of the peace.
3. Privileges from arrest for civil cases are either general
and absolute, or limited and qualified as to time or place.
4. - 1. In the first class may be mentioned ambassadors, and
their servants, when the debt or duty has been contracted by the
latter since they entered into the service of such ambassador;
insolvent debtors duly discharged under the insolvent laws; in
some places, as in Pennsylvania, women for any debt by them
contracted; and in general, executors and administrators, when
sued in their representative character, though they have been
held to bail. 2 Binn. 440.
5. - 2. In the latter class may be placed, 1st. Members of
congress this privilege is strictly personal, and is not only his
own, or that of his constituent, but also that of the house of
which he is a member, which every man is bound to know, and must
take notice of. Jeff. Man. §3; 2 Wils. R. 151; Com. Dig.
Parliament, D. 17. The time during which the privilege extends
includes all the period of the session of congress, and a
reasonable time for going to, and returning from the seat of
government. Jeff. Man. §3; Story, Const. §§856 to 862; 1 Kent,
Com. 221; 1 Dall. R. 296. The same privilege is extended to the
members of the different state legislatures.
6. - 2d. Electors under the constitution and laws of the United
States, or of any state, are protected from arrest for any civil
cause, or for any crime except treason, felony, or a breach of
the peace, eundo, morando, et redeundo, that is, going to,
staying at, or returning from the election.
7. - 3d. Militia men, while engaged in the performance of
military duty, under the laws, and eundo, morando et redeundo.
8. - 4th. All persons who, either necessarily or of right are
attending any court or forum of justice, whether as judge, juror,
party interested or witness, and eundo, morando et redeundo. See
6 Mass. R, 245; 4 Dall. R. 329, 487; 2 John. R. 294; 1 South.
R. 366; 11 Mass. R. 11; 3 Cowen, R. 381; 1 Pet. C. C. R. 41.
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9. Ambassadors are wholly exempt from arrest for civil or
criminal cases.
Vide Ambassador. See, generally, Bac. Ab. h. t.; 2 Rolle's Ab.
272; 2 Lilly's Reg. 369; Brownl. 15; 13 Mass. R. 288; 1 Binn.
R. 77; 1 H. Bl. 686; Bouv. Inst. Index, h. t.
PRIVILEGED COMMUNICATIONS. Those statements made by a client to
his counsel or attorney, or solicitor, in confidence, relating to
some cause Or action then pending or in contemplation.
2. Such communications cannot be disclosed without the consent
of the client. 6 M. & W. 587; 8 Dow]. 774; 2 Yo. & C. 82; 1
Dowl. N. S. 651; 9 Mees. & W. 508. See Confidential
communication.
PRIVILEGIUM CLERICALE. The same as benefit of clergy.
PRIVITY. The mutual or successive relationship to the same
rights of property. 1 Greenl. Ev. §189; 6 How. U. S. R. 60.
PRIVITY OF CONTRACT. The relation which subsists between two
contracting parties. Hamm. on Part. 182.
2. From the nature of the covenant entered into by him, a
lessee has both privity of contract and of estate; and though by
an assignment of his lease he may destroy his privity of estate,
still the privity of contract remains, and he is liable on his
covenant notwithstanding the assignment. Dougl. 458, 764; Vin.
Ab. h. t. 6 How. U. S. R. 60. Vide Privies.
PRIVITY OF ESTATE. The relation which subsists between a
landlord and his tenant.
2. It is a general rule that a termor cannot transfer the
tenancy or privity of estate between himself and his landlord,
without the latter's consent: an assignee, who comes in only in
privity of estate, is liable only while he continues to be legal
assignee; that is, while in possession under the assignment.
Bac. Ab. Covenant, E 4; Woodf. L. & T. 279; Vin. Ab. h: t.;
Hamm. on Part. 132. Vide Privies.
PRIVY. One who is a partaker, or has an interest in any action,
matter or thing.
PRIVY COUNCIL, Eng. law. A council of state composed of the
king and of such persons as he may select.
PRIVY SEAL, Eng. law. A seal which the king uses to such grants
or things as pass the great seal. 2 Inst. 554.
PRIVY VERDICT. One which is delivered privily to a judge out of
court.
PRIZE, mar. law, war. The apprehension and detention at sea, of
a ship or other vessel, by authority of a belligerent power,
either with the design of appropriating it, with the goods and
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effects it contains, or with that of becoming master of the whole
or a part of its cargo. 1 Rob. Adm. R. 228. The vessel or goods
thus taken are also called a prize. Goods taken on land from a
public enemy, are called booty, (q. v.) and the distinction
between a prize and booty consists in this, that the former is
taken at sea and the latter on laud.
2. In order to vest the title of the prize in the cap tors, it
must be brought with due care into some convenient port for
adjudication by a competent court. The condemnation must be
pronounced by a prize court of the government of the captor
sitting in the country of the captor, or his ally; the prize
court of an ally cannot condemn. Strictly speaking, as between
the belligerent parties the title passes, and is vested when the
capture is complete; and that was formerly held to be complete
and perfect when the battle was over, and the spes recuperandi
was gone. 1 Kent, Com. 100; Abbott on Shipp. Index, h. t.; 13
Vin. Ab. 51; 8 Com. Dig. 885; 2 Bro. Civ. Law, 444; Harr. Dig.
Ship. and Shipping, X; Merl. Repert. h. t.; Bouv. Inst. Index.
h. t. Vide Infra praesidia.
PRIZE, contracts. A reward which is offered to one of several
persons who shall accomplish a certain condition; as, if an
editor should offer a silver cup to the individual who shall
write the best essay in favor of peace.
2. In this case there is a contract subisting between the
editor and each person who may write such essay that he will pay
the prize to the writer of the best essay. Wolff, Dr. de la Nat.
§675.
3. By prize is also meant a thing which is won by putting into
a lottery.
PRIZE COURT, Engl. law The name of court which has jurisdiction
of all captures made in war on the high seas.
2. In England this is a separate branch of the court of
admiralty, the other branch being called the instance court. (q.
v.)
3. The district courts of the United States have jurisdiction
both as instance and prize courts, there being no distinction in
this respect as in England. 3 Dall. 6; vide 1 Gall. R. 563;
Bro. Civ. & Adm. Law, ch. 6 & 7; 1 Kent, Com. 356; Mann. Comm.
B. 3, c. 12.
PRO. A Latin proposition signifying `for.' As to its effects in
contracts, vide Plowd. 412.
PRO AND CON. For and against. For example, affidavits are taken
pro and con.
PRO CONFESSO, chan. pract. For confessed.
2. When the defendant has been served personally with a
subpoena, or when not being so served has appeared, and
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afterwards neglects to answer the matter contained in the bill,
it shall be taken pro confesso, as if the matter were confessed
by the defendant. Blake's Ch. Pr. 80; Newl. Ch. Pr. c. 1, s. 12;
1 Johns. Cb. Rep. 8. It also be taken pro confesso if the manner
is sufficient. 4 Vin. Ab. 446 2 Atk. 24 3 Ves. 209; Harr. Ch.
Pr. 154. Vide 4 Ves. 619, and the cases there cited.
PRO-CURATORS, PRO-TUTORS. Persons who act as curators or
tutors, without being lawfully authorized. They are, in general,
liable to all the duties of curators or tutors, and are entitled
to none of the advantages which legal curators or tutors can
claim.
PRO EO QUOD, pleading. For this that. It is a phrase of
affirmation, and is sufficiently direct and positive for
introducing a material averment. 1 Saund. 117, n. 4; 1 Com. Dig.
Pleader, c. 86 2 Chit. Pl. 369-393 Gould on Pl. c. 3, 34.
PRO INDIVISO. For an undivided part. The possession or
occupation of lands or tenements belonging to two or mare
persons, and consequently neither knows his several portion till
divided: Bract. 1. 5.
PRO QUERENTE. For the plaintiff; usually abbreviated, pro
quer.
PRO RATA. According to the rate, proportion or allowance. A
creditor of an insolvent estate, is to be paid pro rata with
creditors of the same class.
PRO RE NATA. For the occasion as it may arise.
PRO TANTO. For so much. See 17 Serg. & Rawle, 400.
PROAMITA. Great paternal aunt; the sister of one's
grandfather. Inst. 3, 6, 3 & 4; Dig. 38, 10, 10, 14, et seq.
PROAVUS. Great grandfather. This term is employed in making
genealogical tables.
PROBABILITY. That which is likely to happen; that which is
most consonant to reason; for example, there is a strong
probability that a man of a good moral character, and who has
heretofore been remarkable for truth, will, when examined as a
witness under oath, tell the truth; and, on the contrary, that a
man who has been guilty of perjury, will not, under the same
circumstances, tell the truth; the former will, therefore, be
entitled to credit, while the latter will not.
PROBABLE. That which has the appearance of truth; that which
appears to be founded in reason.
PROBABLE CAUSE. When there are grounds for suspicion that a
person has committed a crime or misdemeanor, and public justice
and the good of the community require that the matter should be
examined, there is said to be a probable cause for, making a
charge against the accused, however malicious the intention of
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the accuser may have been. Cro. Eliz. 70; 2 T. R. 231; 1 Wend.
140, 345; 5 Humph. 357; 3 B. Munr. 4. See 1 P. S. R. 234; 6 W.
& S. 236; 1 Meigs, 84; 3 Brev. 94. And probable cause will be
presumed till the contrary appears.
2. In an action, then, for a malicious prosecution, the
plaintiff is bound to show total absence of probable cause,
whether the original proceedings were civil or criminal. 5 Taunt.
580; 1 Camp. N. P. C. 199; 2 Wils. 307; 1 Chit. Pr. 48; Hamm.
N. P. 273. Vide Malicious prosecution, and 7 Cranch, 339; 1
Mason's R. 24; Stewart's Adm. R. 115; 11 Ad. & El. 483; 39 E.
C. L. R. 150; 24 Pick.-81; 8 Watts, 240; 3 Wash. C. C. R. 31:
6 Watts & Serg. 336; 2 Wend. 424 1 Hill, S. C. 82; 3 Gill &
John. 377; 1 Pick. 524; 8 Mass. 122; 9 Conn. 309; 3 Blackf.
445; Bouv. Inst. Index, h. t.
PROBATE OF A WILL. The proof before an officer appointed by
law, that an instrument offered to be recorded is the act of the
person whose last will and testament it purports to be. Upon
proof being so made and security being given when the laws of the
state require such security, the officer grants to the executors
or administrators cum testamento annexo, when there been adopted,
but provision is made for perare no executors, letters
testamentary, or of administration.
2. The officer. who takes such probate is variously
denominated; in some states he is called judge of probate. in
others register, and surrogate in others. Vide 11 Vin. Ab. 5 8 12
Vin. Ab. 126 2 Supp. to Ves. jr. 227 1 Salk. 302; 1 Phil. Ev.
298; 1 Stark. Ev. 231, note, and the cases cited in the note,
and also, 12 John. R. 192; 14 John. R. 407 1 Edw. R. 266; 5
Rawle, R. 80 1 N. & McC. 326; 1 Leigh, R. 287; Penn. R. 42; 1
Pick. R. 114; 1 Gallis. R. 662, as to the effect of a probate on
real and personal property,
3. In England, the ecclesiastical courts, which take the
probate of wills, have no jurisdiction of devises of land. In a
trial at common law, therefore, the original will must be
produced, and the probate of a will is no evidence.
4. This rule has been somewhat changed in some of the states.
In New York it has petuating the evidence of a will. 12 John.
Rep. 192; 14 John. R, 407. In Massachusetts, Connecticut, North
Carolina, and Michigan, the probate is conclusive of its
validity, and a will cannot be used in evidence till proved. 1
Pick. R. 114; l Gallis. R. 622 1 Mich. Rev. Stat. 275. In
Pennsylvania, the probate is not conclusive as to lands, and,
although not allowed by the Register's court, it may be read in
evidence. 5 Rawle's R. 80. In North Carolina, the will must be
proved de novo in the court of common pleas, though allowed by
the ordinary. 1 Nott & McCord, 326. In New Jersey, probate is
necessary, but it is not conclusive. Penn. R. 42.
5. The probate is a judicial act, and while unimpeached,
authorizes debtors of the deceased in paying the debts they owed
him, to the executors although the will may, have been forged. 3
T. R. 125; see 8 East, Rep. 187. Vide Letters testamentary.
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PROBATION. The evidence which proves a thing. It is either by
record, writing, the party's own oath, or the testimony of
witnesses. Proof. (q. v.) It also signifies the time of a
novitiate; a trial. Nov. 5.
PROBATOR. Ancient English law. Strictly, an accomplice in
felony, who to save himself confessed the fact, and charged or
accused any other as principal or accessary, against whom he was
bound to make good his charge. It also signified an approver, or
one who undertakes to prove a crime charged upon another. Jacob's
Law Dict. h. t.
PROBATORY TERM. In the British courts of admiralty, after the
issue is formed between the parties, a time for taking the
testimony is assigned, this is called a probatory term.
2. This term is common to both parties, and either party may
examine his witnesses. When good cause is shown the term will be
enlarged. 2 Bro. Civ. and Adm. Law, 418 Dunl. Pr. 217.
PROBI ET LEGALES HOMINES. Good and lawful men; persons
competent in point of law to serve on juries. Cro. Eliz. 654,
751; Cro. Jac. 635; Mart. & Yerg. 147; Hardin, 63; Bac. Ab.
Juries, A.
PROBITY. Justice, honesty. A man of probity is one who loves
justice and honesty, and who dislikes the contrary. Wolff, Dr. de
la Nat. §772. ,
PROCEDENDO, practice. A writ which issues where an action is
removed from an inferior to a superior jurisdiction by habeas
corpus, certiorari or writ of privilege, and it does not appear
to such superior court that the suggestion upon which the cause
has been removed, is sufficiently proved; in which case the
superior court by this writ remits the cause to the court from
whence it came, commanding the inferior court to proceed to the
final hearing and determination of the same. See 1 Chit. R. 575;
2 Bl. R. 1060 1 Str. R. 527; 6 T. R. 365; 4 B. & A. 535; 16
East, R. 387.
PROCEEDING. In its general acceptation, this word means the
form in which actions are to be brought and defended, the manner
of intervening in suits, of conducting them, the mode of deciding
them, of opposing judgments and of executing.
2. Proceediugs are ordinary and summary. 1. By ordinary
proceedings are understood the regular and usual mode of carrying
on, a suit by due course at common law. 2. Summary proceedings
are those when the matter in dispute is decided without the
intervention of a jury; these must be authorized by the
legislature, except perhaps in cages of contempts, for such
proceedings are unknown to the common law.
3. In Louisiana, there is a third kind of proceeding, known by
the name of executory proceeding, which is resorted to in the
following cases: 1. When the creditor's right arises from an act
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importing a confession of judgment, and which contains a
privilege or mortgage in his favor. 2. When the creditor demands
the execution of a judgment which has been rendered by a tribunal
different from that within whose jurisdiction the execution is
sought. Code of Practice, art. 732.
4. In New York the code of practice divides remedies into
actions and special proceedings. An action is a regular judicial
proceeding, in which one party prosecutes another party for the
enforcement or protection of a right, the redress or prevention
of a wrong, or the punishment of a public offence. Every other
remedy is a special proceeding. §2.
PROCERES. The name by which the chief magistrates in cities
were formerly known. St. Armand, Hist. Eq. 88.
PROCES VERBAL, French law. A true relation in writing in due
form of law of what has been done and said verbally in the
presence of a public officer, and what he himself does upon the
occasion. It is a species of inquisition of office.
2. The proces verbal should be dated, contain the name,
qualities, and residence of the public functionary who makes it,
the cause of complaint, the existence of the crime, that which
serves to substantiate the charge, point out its nature, the
time, the place, the circumstances, state the proofs and
presumptions, describe the place, in a word, everything
calculated to ascertain the truth. It must be signed by the
officer. Dall. Dict. h. t.
PROCESS, practice. So denominated because it proceeds or issues
forth in order to bring the defendant into court, to answer the
charge preferred against him, and signifies the writ or judicial
means by which he is brought to answer. 1 Paine, R. 368 Bouv.
Inst. Index, h. t.
2. In the English law, process in civil causes is called
original process, when it is founded upon the original writ; and
also to distinguish it from mesne or intermediate process, wliich
issues pending the suit, upon some collateral interlocutory
matter, as, to summon juries, witnesses,, and the like; mesne
process is also sometimes put in contradistinction to final
process, or process of execution; and then it signifies all
process which intervenes between the beginning and end of a suit.
3 Bl. Com. 279.
3. In criminal cases that proceeding which is called a warrant,
before the finding of the bill, is termed process when issued
after the indictment has been found by the jury. Vide 4 Bl. Com.
319; Dalt. J. c. 193; Com. Dig. Process, A 1; Burn's Dig.
Process; Williams, J, Process; 1 Chit. Cr. Law, 338; 17 Vin.
Ab. 585.
4. The word process in the 12th section of the 5th article of
the constitution of Pennsylvania, which provides that "the style
of all process shall be The Commonwealth of Pennsylvania," was
intended to refer to such writs only as should become necessary
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to be issued in the course of the exercise of that judicial power
which is established and provided for in the article of the
constitution, and forms exclusively the subject matter of it. 3
Penns. R. 99.
PROCESS, rights. The means or method of accomplishing a thing.
2. It has been said that the word manufacture, (q. v.) in the
patent laws, may, perhaps, extend to a new process, to be carried
on by known implements, or elements, acting upon known
substances, and ultimately producing some other known substance,
but producing it in a cheaper or more expeditious manner, or of a
better and more useful kind. 2 B. & Ald. 349. See Perpigna,
Manuel des Inventeurs, &c., c. 1; s. 5, §1, p. 22, 4th ed.;
Manufacture; Method.
PROCESS, MESNE, pradice. By this term is generally understood
any writ issued in the course of a suit between the original
process and execution.
2. By this term is also meant the writ or proceedings in an
action to summon or bring the defendant into court, or compel him
to appear or put in bail, and then to hear and answer the
plaintiffs claim. 3 Chit. Pr. 140.
PROCESS OF GARMISHMENT, practice. It was formerly the practice
to deposit deeds and other things in the hands of third persons,
to await the performance of covenants, upon which they were to be
re-delivered to one of the parties. When one of the parties
contended that he was entitled to such things, and the other
denied it, and the claiming party brought an action of detinue
for them, the defendant was allowed to in terplead, and thereupon
he prayed for a monition or notice to compel the other depositor
to appear and become a defendant in his stead. This was called a
process of garnishment. 3 Reeves, Hist. Eng. Law, eh. 23, p. 448.
PROCESS OF INTERPLEADER, practice. Formerly when two parties
concurred in a bailment to a third person of things which were to
be delivered to one of them on the performance of a covenant or
other thing, and the parties brought several actions of detinue
against the bailee, the latter might plead the facts of the case
and pray that the plaintiffs in the several actions might
interplead with each other; this was called process of
interpleader. 3 Reeves, Hist. Law, eh. 23; Mitford, Eq. Pl. by
Jeremy, 141; 2 Story, Eq. Jur. §802.
PROCESSIONING. A term used in Tennessee to signify the manner
of ascertaining the boundaries of land, as provided for by the
laws of that state. Carr. & Nich. Comp. of Stat. of Tenn. 348.
The term is also used in North Carolina. 3 Murph. 504; 3 Dev.
268.
PROCHEIN. Next. This word is frequently used in composition;
as, prochein amy, prochein cousin, and the like. Co. Lit. 10.
PROCHEIN AMY, more correctly prochain ami. Next friend.
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2. He who, without being appointed guardian, sues in the name
of an infant for the recovery of the rights of the latter, or
does such other acts as are authorized by law; as, in
Pennsylvania, to bind the infant apprentice. 3 Serg. & Rawle,
172; 1 Ashm. Rep. 27. For some of the rules with respect to the
liability or protection of a prochein amy, see 4 Madd. 461; 2
Str. 709; 3 Madd. 468; 1 Dick. 346; 1 Atk. 570; Mosely, 47,
85; 1 Ves. Jr. 409; 10 Ves. 184; 7 Ves. 425; Edw. on Parties,
182 to 204.
PROCLAMATION, evidence. The act of causing some state matters
to be published or made generally known. A written or printed
document in which are contained such matters, issued by proper
authority; as the president's proclamation, the governor's, the
mayor's proclamation. The word proclamation is also used to
express the public nomination made of any one to a high office;
as, such a prince was proclaimed emperor.
2. The president's proclamation has not the force of law,
unless when authorized by congress; as if congress were to pass
an act, which should take effect upon the happening of a
contingent event, which was to be declared by the president by
proclamation to hive happened; in this case the proclamation
would give the act the force of law, which, till then, it wanted.
How far a proclamation is evidence of facts, see Bac. Ab. Ev. F;
Dougl. 594, n; B. N. P. 226; 12 Mod. 216; 8 State Tr. 212; 4
M. & S. 546; 2 Camp. Rep. 44; Dane's Ab. eh. 96, a. 2, 3 and 4;
1 Scam. R. 577; Bro. h. t.
PROCLAMATION, practice. The declaration made by the cryer, by
authority of the court, that something is about to be done.
2. It usually commences with the French word Oyez, do you hear,
in order to attract attention; it is particularly used on the
meeting or opening of the court, and at its adjournment; it is
also frequently employed to discharge persons who have been
accused of crimes or misdemeanors.
PROCLAMATION OF EXIGENTS, Eng. law. On awarding an exigent, in
order to outlawry, a writ of proclamation issues to the sheriff
of the county where the party dwells, to make three proclamations
for the defendant to yield himself, or be outlawed.
PROCLAMATION OF REBELLION, Eng. law. When a party neglects to
appear upon a subpoena, or an attachment in the chancery, a writ
bearing this name issues, and if he does not surrender himself by
the day assigned, he is reputed, and declared a rebel.
PROCREATION. The generation of children; it is an act
authorized by the law of nature: one of the principal ends of
marriage is the procreation of children. Inst. tit. 2, in pr.
PROCTOR. One appointed to represent in judgment the party who
empowers him, by writing under his hand called a proxy. The term
is used chiefly in the courts of civil and ecclesiastical law.
The proctor is somewhat similar to the attorney. Avl. Parerg.
421.
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PROCURATION, civil law. The act by which one person gives power
to another to act in his place, as he could do himself. A letter
of attorney.
2. Procurations are either express or implied; an express
procuration is one made by the express consent of the parties;
the implied or tacit takes place when an individual sees another
managing his affairs, and does not interfere to prevent it. Dig.
17, 1, 6, 2; Id. 50, 17, 60; Code 7, 32, 2.
3. Procurations are also divided into those which contain
absolute power, or a general authority, and those which give only
a limited power. Dig. 3, 3, 58; Id. 17, 1, 60, 4 4. The
procurations are ended in three ways first, by the revocation of
the authority; secondly, by the death of one of the parties;
thirdly, by the renunciation of the mandatory, when it is made in
proper time and place, and it can be done without injury to the
person who gave it. Inst. 3, 27 Dig. 17, 1; Code 4, 35; and see
Authority; Letter of Attorney; Mandate.
PROCURATIONS, eccles. law. Certain sums of money which parish
priests pay yearly to the bishops or archdeacons ratione
visitationis. it 3, 39, 25; Ayl. Parerg. 429; 17 Vin. Ab. h.
t., pa e 544.
PROCURATOR, civil law. A proctor; a person who acts for
another by virtue of a procuration. Procurator est, qui aliena
negotia mandata Domini administrat. Dig 3, 3, 1. Vide Attorney;
Authority.
PROCURATOR in rem suam. Scotch law. This imports that one is
acting as attorney as to his own property. When an assignment of
a thing is made, as a debt, and a procuration or power of
attorney is given to the assignee to receive the same, he is in
such case procurator in rein suam. 3 Stair's Inst. 1, §2, 3, &c.;
3 Ersk. 5, §2; 1 Bell's Com. B. 5, c. 2, s. 1, §2.
PROCURATORIUM. The proxy or instrument by which a proctor is
constituted and appointed.
PRODIGAL, civil law, persons. Prodigals were persons who,
though of full age, were incapable of managing their affairs, and
of the obligations which attended them, in consequence of their
bad conduct, and for whom a curator was therefore appointed.
2. In Pennsylvania, by act of assembly, an habitual drunkard is
deprived of the management of his affairs, when he wastes his
property, and his estate is placed in the bands of a committee.
PRODITORIE. Treasonably. This is a technical word formerly used
in indictments for treason, when they were written in Latin.
PRODUCENT. He who produces a witness to be examined. The term
is used in the ecclesiastical courts.
PROFANE. That which has not been consecrated. By a profane
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place is understood one which is neither sacred, nor sanctified,
nor religious. Dig. 11, 7, 2, 4. Vide Things.
PROFANELY. In a profane manner. In an indictment, under the act
of assembly of Pennsylvania, against profanity, it is requisite
that the words should be laid to have been spoken profanely. 11
S. & R. 394.
PROFANENESS or PROFANITY, crim. law. A disrespect to the name
of God, or his divine providence. This is variously punished by
statute in the several states.
PROFECTITUS, civil law. That which descends to us from our
ascendants. Dig. 23, 3, 5.
PROFERT IN CURIA, plead. Produces in court.
2. When the plaintiff declares on a deed, or the defendant
pleads a deed, and makes title under it, be must do it with a
profert in curia, by declaring that he " brings here into court,
the said writing obligatory," or other deed.
3. The object of this is to enable the court to inspect the
instrument pleaded, the construction and legal effect of which is
matter of law, and to entitle the adverse party to oyer of it;
10 Co. 92, b.; 1 Chit. Pl. 414; 1 Archb. Pr. 164; but one who
pleads a deed of any kind, without making title under it, is not
bound to make profert of it. Gould on Pl. oh. 7, part 2, §47. To
the above rule that he who declares on, or pleads a deed, and
makes title under it, must make profert of it, there are several
exceptions, all of which are founded on the pleader's actual or
presumed inability to produce the instrument. A stranger to a
deed, therefore, may in general plead it, and make title under
it, without profert. Com. Dig. Pleader, 0 8; Cro. Jac. 217;
Cro. Car. 441; Carth. 316. Also he who claims title by operation
of law, under a deed, to another, may plead the deed without
profert. Co. Litt. 225; Bac. Abr. Pleas, I 12; 5 Co. 75. When
the deed is in the hands of the opposite party, or destroyed by
him, no profert need be made; or when it has been lost or
destroyed by time or casualty.
4. In all these cases, to excuse the want of a profert, the
special facts which bring the case within the exception, should
be alleged in the party's pleadings. Vide Gould, Pl. ch. 8, part
2; Lawes' Pl. 96; 1. Saund. 9, a, note.
PROFESSION. This word has several significations. 1. It is a
public declaration respecting something. Code, 10, 41, 6.
2. It i's a state, art, or mystery; as the legal profession.
Dig. 1, 18, 6, 4; Domat, Dr. Pub. 1. 1, t. 9, s. 1, n. 7. 3. In
the ecclesiastical law, it is the act of entering into a
religious order. See 17 Vin. Ab. 545.
PROFITS. In general, by this term is understood the benefit
which a man derives from a thing. It is more particularly applied
to such benefit as arises from his labor and skill.
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2. It has, however, several other meanings. 1. Under the term
profits, is comprehended the produce of the soil, whether it
arise above or below the surface as herbage, wood, turf, coals,
minerals, stones, also fish in a pond or running water. Profits
are divided into profits a prendre, or those taken and enjoyed by
the mere act of the proprietor himself; and profits a rendre,
namely, such as are received at the hands of, and rendered by
another. Ham. N. P. 172.
3. - 2. When land is devised to pay debts and legacies out of
rents and profits, the land may be sold; otherwise, if out of
the annual rents and profits. 1 Vern. 104, ca. 90.
4. - 3. The natural meaning of raising by rents and profits, is
by the yearly profits but to prevent an inconvenience the word
profits has, in some particular instances, been extended to any
profits the land will yield, either by sale or mortgage; 1 Ch.
Ca. 176; 2 Ch. Ca. 205; 2 Vern. 420; 1 P. Wms. 468; Pre. Ch.
586; 2 P. Wms. 19; 2 Ves. Jr. 481, n.; 2 Bro. Par. Cas. 418;
1 Atk. 506. Id. 550; 2 Atk. 358 where cases on raising portions
in the life of parents and to the prejudice of the remainder-man
are considered; and vide Powell on Mort. 90, et seq. But in no
case where there are subsequent restraining words, has the word
profit; been extended. Pre. Ch. 586, note, and the cases cited
there; 1 Atk. 506; 2 Atk. 105.
5. - 4. A devise of profit considered, at law and in equity, a
devise of the land itself. 1 Atk. 506; 1 Ves. 171 et vide 1 Ves.
42; 2 Atk. 358; 1 Bro. Ch. R. 310; 9 Mus. R. 372; 1 Pick. R.
224; 2 Pick. R. 425; 4 Pick. R. 203.
6. - 5. Where an assignment of rents and profits recites the
intention of the parties then to make a security for money
borrowed, and there is a covenant for further assurance, this
amounts to an equitable lien, and would entitle the assignee to
insist upon a mortgage. 2 Cox, 233; S. C. 1 Ves. Jr. 162; see
also 3 Bro. C. C. 538; S. C. 1 Ves. Jr. 477.
7. - 6. Much doubt has arisen upon the question, whether the
profit expected to arise upon maritime commerce be a proper
subject of insurauce. 1 Marsh. on Ins. 94. In some countries, as
Holland and France, Code de Com. 347, it is illegal to insure
profits; but in England, profits expected to arise from a cargo
of goods may be insured. 1 Marsh. on Ins. 97.
8. - 7. Personal representatives aud trustees are generally
bound to account for all the profits they make out of the assets
entrusted to them. See Toll. Ex. 486; 1 Serg. & Rawle, 245; 1
T. R. 295; 1 M. & S. 412; Supp. to Ves. Jr., Notes to Wilkinson
v. Strafford, 1 Ves. Jr. 32 Paley on Agency, 48, 9.
9. - 8. In cases of breach of contract, the plaintiff cannot in
general recover damages for the profits he might have made. 1 R.
85, 94; S. C. 3 W. C. C. R. 184; 1 Pet. R. 172; see also 1
Yeates, 36; 11 Serg. & Rawle, 445.
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10. - 9. It is a general rule that any participation in the
profits of a trade or business, makes a person receiving such
profits responsible as a partner. Gow on Part.; 6 Serg. & Rawle,
259; 1 Com. on Contr. 287 to 293. See generally on this
subject, 3 W. C. C. R. 110; 15 Serg. & Rawle, 137; Chit. on
Contr. 67; 6 Watts & Serg. 139.
11. But it is proper to observe that to make one a partner he
must have such an interest in the profits as will entitle him to
an account as it partner; he must be entitled to them as a
principal. A clerk who receives a salary to be paid out of the
profits would not be so considered, for there is a distinction
between receiving the profits as sucli, and a commission on tile
profits, and although this seems, at first sight, but a flimsy
distinction, it appears to be a well settled rule of law. 15 S. &
R. 157; 6 S. R. 259; 1 Denio, 337; 20 Wend. 70; 3 M. Gr. &
So. 32; 17 Ves. 404; 1 Camp. 329; 2 H. Bl. 590; 3 M. G. & S.
651; 3 Kent, Com. 25, note (b) 4th ed.; Cary on Partn. 11;
Colly on Part. p. 17; Addis on Contr. 451; 4 M. & S. 244;
Russ. & Ry. 141; 3 M. & P. 48; 5 Taunt. 74; 4 T. R. 144. The
Roman law, Dig. 17, 2, 44; Poth. Pand. 17, 2, 4; and the French
law, 5 Duv. Dr. Civ. Fr. n. 48; 17 Dur. Dr. Fr. n. 332; Poth.
du Contrat de Societe, n. 13, recognize the same distinction.
Such is also the law of Scotland. Burt. Man. P. L. 178. When
there are no stipulations to the contrary, the profits are to be
enjoyed, and the losses borne by all the partners in equal
proportions. Wats. Partn. 59, 60; Colly. Partn. 105; 6 Wend.
263; Story, Partn. §24; 7 Bligh, R. 132; Wilson & Shaw. 16.
12. - 10. A purchaser is entitled to the profits of the estate
from the time fixed upon for completing the contract, whether he
does or does not take possession of the estate. Sugd. on Vend.
353. See 6 Ves. Jr. 143, 352.
13. Profits among merchants are divided into gross profits and
net profits. The former are the profits without any deduction for
losses; the latter are the same profits, after having deducted
all the losses. Story, Partn. §34.
PROGRESSION. That state of a business which is neither the
commencement nor the end. Some act done after the matter has
commenced and before it is completed. Plowd. 343. Vide
Consummation; Inception.
PROHIBITION, practice. The name of a writ issued by a superior
court, directed to the judge and parties of a suit in an inferior
court, commanding them to cease from the prosecution of the same,
upon a suggestion that the cause originally, or some collateral
matter arising therein, does not belong to that jurisdiction, but
to the cognizance of some other court. 3 Bl. Com. 112; Com. Dig.
h. t.; Bac. Ab. h. t. Saund. Index, h. t.; Vin. Ab. h. t.; 2
Sell. Pr. 308; Ayliffe's Parerg. 434; 2 Hen. Bl.
2. The writ of prohibition may also be issued when, having
jurisdiction, the court has attempted to proceed by rules
differing from those which ought to be observed; Bull. N. P.
219; or when, by the exercise of its jurisdiction, the inferior
court would defeat a legal right. 2 Chit. Pr. 355.
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PROHIBITIVE IMPEDIMENTS, canon law. Those impediments to a
marriage which are only followed by a punishment, but do not
render the marriage null. Bowy. Alod. Civ. Law, 44.
PROJET. In international law, the draft of a proposed treaty or
convention is called a projet.
PROLES. Progeny, such issue as proceeds from a lawful marriage;
and, in its enlarged sense, it signifies any children.
PROLETARIUS, civil law. One who has no property to be taxed;
and paid a tax only on account of his cliildren, proles; a
person of mean or common extraction. The word has become
Frenchified, proletaire signifying one of the common people.
PROLICIDE, med. jurisp. Medical jurists have employed this word
to designate the destruction of the human divided the subject
into foeticide, (q. v.) or the destruction of the foetus in
utero; and infanticide, (q. v.) or the destruction of the
new-born infant. Ryan, Med. Jur. 137.
PROLYTAE, Rom. civil law. The term used to denominate students
of law during the fifth and last year of their studies. They were
left during this year, very much to their own direction, and took
the name (prolytoi) Prolytae omnino soluti. They studied chiefly
the code and the imperial constitutions. See Dig. Proef. Prim.
Const. 2; Calvini Lex ad Voc.
PROLIXITY. The unnecessary and superfluous statement of facts
in pleading or in evidence. This will be rejected as impertinent.
7 Price, 278, n.
PROLOCUTOR. In the ecclesiastical law, signifies a president or
chairman of a convocation.
PROLONGATION. Time added to the duration of something.
2. When the time is lengthened during which a party is to
perform a contract, the sureties of such a party are in general
discharged, unless the sureties consent to such prolongation. See
Giving time.
3. In the civil law the prolongation of time to the principal
did not discharge the surety. Dig. 2, 14, 27; Id. 12, 1, 40.
PROMATERTERA. Great maternal aunt; the sister of one's
grandmother. Inst. 3, 6, 3; Dig. 38, 10, 10, 14, et seq.
PROMISE, contr. An engagement by which the promisor contracts
towards another to perform or do something to the advantage of
the latter.
2. When a promise is reduced to the form of a written agreement
under seal, it is called a covenant.
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3. In order to be binding on the promisor, the promise must be
made upon a sufficient con@ideration - when made without
consideration, however, it may be binding in foro conscientice,
it is not obliggtory in law, being nudtim pactum. Rutherf. Inst.
85; 18 Eng. C. L. Rep. 180, note a; Merl. Rep. h. t.
4. When a promise is made, all that is said at the time, in
relation to it, must be considered; if, therefore, a man promise
to pay all he owes, accompanied by a denial that he owes
anything, no action will lie to enforce such a promise. 15 Wend.
187.
5. And when the promise is conditional, the condition must be
performed before it becomes of binding force. 7 John. 36. Vide
Condition. Promises are express or implied. Vide Undertaking, and
5 East, 17 2 Leon. 224, 5; 4 B. & A. 595.
PROMISE OF MARRIAGE. A contract mutually entered into by a man
and a woman capable of contracting matrimony, that they will
marry each other.
2. When one of the contracting parties violates his or her
promise to the other, the latter may support an action against
the former for damages, which are sometimes very liberally given.
To entitle the plaintiff to recover damages, however, the
defendant must not have been incapable of making the contract at,
the time, and such incapacity must not have been known to the
opposite party; as, if a married man were to promise to marry a
woman, and he afterwards refused to do so.
3. The canon law punished these breaches of promises by
ecclesiastical censures.
4. According to the ancient jurisprudence of France, damage's
could have been recovered for the in execution of this
engagement, and cases are reported which show a considerable
liberality on this subject. M. Maynon, counsellor in the
parliament of Paris, was condemned to sixty thousand livres
damages; and a M. Hebert to fourteen thousand livres.
D'Hericourt, Lois Ecclesiastiques, titre du Mariage, art. 1, n.
13. By the modern law of France, damages may be recovered for the
violation of this contract.
5. In Germany and Holland damages may also be recovered. Voet,
in Pandec tas, tit. de sponsalibus, n. 12; Huberus, in
Pandectas, eod. tit. n. 19. And the Prussian code regulates the
amount of damages to be paid under a variety of circumstances.
Part 1, b. 2, tit. 2. Vide 2 Chit. Pr. 52; Rose, Civ. Ev. 193;
2 Car. & P. 631; 4 Esp. R. 258; 1 C. & P. 350; Holt, R. 151;
S. C. 3 E. C. L. R. 57; 7 Cowen, 22; 1 John. Cas. 116; 6
Cowen, 254; 4 Cowen, 355; 7 Wend. 142.
PROMISES, evidence. When a defendant has been arrested, he is
frequently in duced to make confessions in consequence of
promises made to him, that if he will tell the truth, he will be
either discharged or favored: in such a case evidence of the
confession cannot be received, because being obtained by the
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flattery of hope, it comes in so questionable a shape, when it is
to be considered evidence of guilt, that no credit ought to be
given to it. 1 Leach, 263. This is the principle, but what
amounts to a promise is not so easily defined. Vide Confession.
PROMISEE. A person to whom a promise has been made.
2. In general a promisee can maintain an action on a promise
made to him, but when the consideration moves not from the
promisee, but some other person, the latter, and not the
promisee, has a cause of action, because he is the person for
whose use the contract was made. Latch, 272; Poph. 81; 3 Cro.
77; 1 Raym, 271, 368; 4 B. & Ad. 434; 1 N. & M. 303; S. C.
Cowp. 437; S. C. Dougl. 142. But see Carth. 5 2 Ventr. 307; 9
M. & W. 92) 96.
PROMISOR. One who makes a promise.
2. The promisor is bound to fulfil his promise, unless when it
is contrary to law, as a promise to steal or to commit an assault
and battery; when the fulfilment is prevented by the act of God,
as where one has agreed to teach another drawing and he loses his
sight, so that he cannot teach it; when the promisee prevents
the promisor from doing what he agreed to do; when the promisor
has been discharged from his promise by the promisee, when the
promise, has been made without a sufficient consideration; and,
perhaps, in some other cases, the duties of the promisor are at
an end.
PROMISSORY NOTE, contracts. A written promise to pay a certain
sum of money, at a future time, unconditionally. 7 Watts & S.
264; 2 Humph. R. 143; 10 Wend. 675; Minor, R. 263; 7 Misso.
42; 2 Cowen, 536; 6 N. H. Rep. 364; 7 Vern. 22. A promissory
note differs from a mere acknowledgment of debt, without any
promise to pay, as when the debtor gives his creditor an I 0 U.
(q. v.) See 2 Yerg. 50; 15 M. & W. 23. But see 2 Humph. 143; 6
Alab. R. 373. In its form it usually contains a promise to pay,
at a time therein expressed, a sum of money to a certain person
therein named, or to his order, for value received. It is dated
and signed by the maker. It is never under seal.
2. He who makes the promise is called the maker, and he to whom
it is made is the payee. Bayley on Bills, 1; 3 Kent, Com, 46.
3. Although a promissory note, in its original shape, bears no
resemblance to a bill of exchange; yet, when indorsed, it is
exactly similar to one; for then it is an order by the indorser
of the note upon the maker to pay to the indorsee. The indorser
is as it were the drawer; the maker, the acceptor; and the
indorsee, the payee. 4 Burr. 669; 4 T. R. 148; Burr. 1224.
4. Most of the rules applicable to bills of exchange, equally
affect promissory notes. No particular form is requisite to these
instruments; a promise to deliver the money, or to be
accountable for it, or that the payee shall have it, is
sufficient. Chit. on Bills, 53, 54.
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5. There are two principal qualities essential to the validity
of a note; first, that it be payable at all events, not
dependent on any contingency; 20 Pick. 132; 22 Pick. 132 nor
payable out of any particular fund. 3 J. J. Marsh. 542; 5 Pike,
R. 441; 2 Blackf. 48; 1 Bibb, 503; 1 S. M. 393; 3 J. J.
Marsh. 170; 3 Pick. R. 541; 4 Hawks, 102; 5 How. S. C. R. 382.
And, secondly, it is required that it be for the payment of money
only; 10 Serg. & Rawle, 94; 4 Watts, R. 400; 11 Verm. R. 268;
and not in bank notes, though it has been held differently in the
state of New York. 9 Johns. R. 120; 19 Johns. R. 144.
6. A promissory note payable to order or bearer passes by
indorsement, and although a chose in action, the holder may bring
suit on it in his own name. Although a simple contract, a
sufficient consideration is implied from the nature of the
instrument. Vide 5 Com. Dig. 133, n., 151, 472 Smith on Merc.
Law, B. 3, c. 1; 4 B. & Cr. 235 7 D. P. C. 598; 8 D. P. C. 441
1 Car. & Marsh. 16. Vide Bank note; Note; Reissuable note.
PROMOTERS. In the English law, are those who in popular or
penal actions prosecute in. their own names and the king's,
having part of the fines and penalties.
PROMULGATION. The order given to cause a law to be executed,
and to make it public it differs from publication. (q. v.) 1 Bl.
Com. 45; Stat. 6 H. VI., c. 4.
2. With regard to trade, unless previous notice can be brought
home to the party charged with violating their provisions, laws
are to be considered as beginning to operate in the respective
collection districts only from the time they are received from
the proper department by the collector. Paine's C. C. R. 32. See
Paine's C. C. R. 2 3.
PROMUTUUM, civil law. A quasi contract, by which he who
receives a certain sum of money, or a certain quantity of
fungible things, which have been paid to him through mistake,
contracts towards the payer the obligation of returning him as
much. Poth. De l'Usure, 3eme part. s. 1, a. 1.
2. This contract is called promutuum, because it has much
resemblance to that of mutuum. (q. v.) This resemblance consists,
1st. That in both a sum of money or some fungible things are
required. 2d. That in both there must be a transfer of the
property in the thing. 3d. That in both there must be returned
the same amount or quantity of the thing received. Poth. h. t.,
n. 133. But though there is this general resemblance between the
two, the mutuum differs essentially from the promutuum. The
former is the actual contract of the parties, made expressly, but
the 'latter is a quasi contract, which is the effect of an error
or mistake. Id. 134; l Bouv. Inst. n. 1125-6.
PRONEPOS. Great Grandson.
PRONOTARY. An ancient word which signifies first notary. The
same as prothonotary. (q. v.)
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PRONURUS. The wife of a great grandson.
PROOF, practice. The conviction or persuasion of the mind of a
judge or jury, by the exhibition of evidence, of the reality of a
fact alleged: as, to prove, is to determine or persuade that a
thing does or does not exist. 8 Toull. n. 2; Ayl. Parerg. 442;
2 Phil. Ev. 44, n, a. Proof is the perfection of evidence, for
without evidence there is no proof, although, there may be
evidence which does not amount to proof: for example, a man is
found murdered at a spot where another had been seen walking but
a short time before, this fact would be evidence to show that the
latter was the murderer, but, standing alone, would be very far
from proof of it.
2. Ayliffe defines judicial proof to be a clear and evident
declaration or demonstration, of a matter which was before
doubtful, conveyed in a judicial manner by fit and proper
arguments, and likewise by all other legal methods; first, by
proper arguments, such as conjectures, presumptions, indicia, and
other adminicular ways and means; and, secondly, by legal
method, or methods according to law, such as witnesses, public
instruments, end the like. Parerg. 442 Aso. & Man. Inst. B. 3, t.
7.
PROPER. That which is essential, suitable, adapted, and
correct.
2. Congress is authorized by art, 1, s. 8, of the constitution
of the United States, "to make all laws which shall be necessary
and proper, for carrying into execution the foregoing powers, and
all other powers vested by this constitution of the United
States, in any department. or officer thereof." See Necessary and
Proper.
PROPERTY. The right and interest which a man has in lands and
chattels to the exclusion of others. 6 Binn. 98; 4 Pet. 511; 17
Johns. 283; 14 East, 370; 11 East, 290, 518. It is the right to
enjoy and to dispose of certain things in the most absolute
manner as he pleases, provided he makes no use of them prohibited
by law. See Things.
2. All things are not the subject of property the sea, the air,
and the like, cannot be appropriated; every one may enjoy them,
but he has no exclusive right in them. When things are fully our
own, or when all others are excluded from meddling with them, or
from interfering about them, it is plain that no person besides
the proprietor, who has this exclusive right, can have any, claim
either to use them, or to hinder him from disposing of them as,
he pleases; so that property, considered as an exclusive right
to things, contains not only a right to use those things, but a
right to dispose of them, either by exchanging them for other
things, or by giving them away to any other person, without any
consideration, or even throwing them away. Rutherf. Inst. 20;
Domat, liv. prel. tit. 3; Poth. Des Choses; 18 Vin. Ab. 63; 7
Com. Dig. 175; Com. Dig. Biens. See also 2 B. & C. 281; S. C. 9
E. C. L. R. 87; 3 D. & R. 394; 9 B. & C. 396; S. C. 17 E. C.
L. R. 404; 1 C. & M. 39; 4 Call, 472; 18 Ves. 193; 6 Bing.
630.
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3. Property is divided into real property, (q. v.) and personal
property. (q. v.) Vide Estate; Things.
4. Property is also divided, when it consists of goods and
chattels, into absolute and qualified. Absolute property is that
which is our own, without any qualification whatever; as when a
man is the owner of a watch, a book, or other inanimate thing:
or of a horse, a sheep, or other animal, which never had its
natural liberty in a wild state.
5. Qualified property consists in the right which men have over
wild animals which they have redueed to their own possession, and
which are kept subject to their power; as a deer, a buffalo, and
the like, which are his own while he has possession of them, but
as soon as his possession is lost, his property is gone, unless
the animals, go animo revertendi. 2 Bl. Com. 396; 3 Binn. 546.
6. But property in personal goods may be absolute or qualified
without ally relation to the nature of the subject-matter, but
simply because more persons than one have an interest in it, or
because the right of property is separated from the possession. A
bailee of goods, though not the owner, has a qualified property
in them; while the owner has the absolute property. Vide,
Bailee; Bailment.
7. Personal property is further divided into property in
possession, and property or choses in action. (q. v.)
8. Property is again divided into corporeal and incorporeal.
The former comprehends such property as is perceptible to the
senses, as lands, houses, goods, merchandise and the like; the
latter consists in legal rights, as choses in action, easements,
and the like.
9. Property is lost, in general, in three ways, by the act of
man, by the act of law, and by the act of God.
10. - 1. It is lost by the act of man by, 1st. Alienation; but
in order to do this, the owner must have a legal capacity to make
a contract. 2d. By the voluntary abandonment of the thing; but
unless the abandonment be purely voluntary, the title to the
property is not lost; as, if things be thrown into the sea to
save the ship, the right is not lost. Poth. h. t., n. 270; 3
Toull. ii. 346. But even a voluntary abandonment does not deprive
the former owner from taking possessiou of the thing abandoned,
at any time before another takes possession of it.
11. - 2. The title to property is lost by operation of law.
1st. By the forced sale, under a lawful process, of the property
of a debtor to satisfy a judgment, sentence, or decree rendered
against him, to compel him to fulfil his obligations. 2d. By
confiscation, or sentence of a criminal court. 3d. By
prescription. 4th. By civil death. 6th. By capture of a public
enemy.
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12. - 3. The title to property is lost by the act of God, as in
the case of the death of slaves or animals, or in the total
destruction of a thing; for example, if a house be swallowed up
by an opening in the earth during an earthquake.
13. It is proper to observe that in some cases, the moment that
the owner loses his possession, he also loses his property or
right in the thing: animals ferae naturae, as mentioned above,
belong to the owner only while he retains the possession of them.
But, in general,' the loss of possession does not impair the
right of property, for the owner may recover it within a certain
time allowed by law. Vide, generally, Bouv. Inst. Index, b. t.
PROPINQUITY. Kindred; parentage. Vide. Affinity;
Consanguinity; Next of kin.
PROPIOS, or PROPRIOS, Span. law. Certain portions of ground
laid off and reserved when a town was founded in Spanish America,
as the unalienable property of the town, for the purpose of
erecting public buildings, markets, &c., or to be used in any
other way, under the direction of the municipality, for the
advancement of the revenues, or the prosperity of the place. 12
Peters' R. 442, note.
PROPONENT, eccl. law. One who propounds a telling as "the party
proponent doth allege and propound." 6 Eng. Ecclesiastical R.
356, n.
PROPOSAL. An offer for consideration or acceptance.
2. It is a general rule that a proposal offered to another for
acceptance may be withdrawn at any time before it is accepted,
provided that notice of the withdrawal be given to the party to
whom it was made. A bid (q. v.) may be withdrawn at any time
before acceptance; and a proposal by letter may be withdrawn at
any time before, acceptance 1 Pick. 278; and, if accepted, it
must be, in the very terms offered. 3 Wheat. 225. Vide Bid;
Correspondence; Letter; Offer.
PROPOSITION. An offer to do something. Until it has been
accepted, a proposition may be withdrawn by the party who makes
it; and to be binding, the acceptance must be in the same terms,
without any variation. Vide Acceptance; Offer; To retract; and
1 L. R. 190; 4 L. R. 80.
PROPOSITUS. The person proposed. In making genealogical tables,
the person whose relations it is desirous to find out, is called
the propositus.
TO PROPOUND. To offer, to propose; as, the onus probandi in
every case lies upon the party who propounds ia will. 1 Curt. R.
637; 6 Eng. Eccl. R. 417.
PROPRES, French law. The term propres or biens propres, is used
to denote that property which has come to an individual from his
relations, either in a direct line, ascending or descending, or
from a collateral line, whether the same have come by operation
of law or by devise. Propres is used. in opposition to acquets.
Poth. Des. Propres; 2 Burge, Confl. of Laws, 61; 2 L. R. S.
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PROPRIA PERSONA. In his own person. It is a rule in pleading
that pleas to the jurisdiction of the court must be pleaded in
propria persona, because, if pleaded by attorney, they admit the
jurisdiction, as an attorney is an officer of the court, and he
is presumed to plead after having obtained leave, which admits
the jurisdiction. Lawes on Pl. 91.
2. An appearance may be in propria persona, and need not be by
attorney.
PROPRIETARY. In its strict sense, this word signifies one who
is master of his actions, and who has the free disposition of his
property. During the colonial government of Pennsylvania, William
Penn was called the proprietary.
2. The domain which William Penn and his family had in the
state, was, during the Revolutionary war, divested by the act of
June 28, 1779, from that family and vested in the commonwealth
for the sum which the latter paid to them of one hundred and
thirty thousand pounds sterling.
PROPRIETATE PROBANDA. The name of a writ. See De proprietate
probanda.
PROPRIETOR. The owner. (q. v.)
PROPRIO VIGORE. By its own force or vigor. This expression is
frequently used in construction. A phrase is said to have a
certain meaning proprio vigore.
PROPTER AFFECTUM. For or on account of some affection or
prejudice. A juryman may be challenged propter affectum; as,
because he is related to the party has eaten at his expense, and
the like. See Challenge, practice.
PROPTER AFFECTUM. On account or for some defect. This phrase is
frequently used in relation to challenges. A juryman may be
challenged propter defectum; as, that he is a minor, an alien,
and the like. See Challenge, practice.
PROPTER DELICTUM. For or on account of crime. A juror may be
challenged propter delictum, when he has been convicted of an
infamous crime. See Challenge, practice.
PROROGATED JURISDICTION, Scotch law. That jurisdiction, which,
by the consent of the parties, is conferred upon a judge, who,
without such consent, would be incompetent. Ersk. Prin. B. 1, t.
2, n. 15.
2. At common law, when a party is entitled to some privilege or
exemption from jurisdiction, he may waive it, and then the
jurisdiction is complete; but the consent cannot give
jurisdiction.
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PROROGATION. To put off to another time. It is generally
applied to the English parliament, and means the continuance of
it from one day to another; it differs from adjournment, which
is a continuance of it from one day to another in the same
session. 1 Bl. Com. 186.
2. In the civil law, prorogation signifies the time given to do
a thing beyond the term prefixed. Dig. 2, 14, 27, 1. See
Prolongation.
PROSCRIBED, civil law. Among the Romans, a man was said to be
proscribed when a reward was offered for his head; but the term
was more usually applied to those who were sentenced to some
punishment which carried with it the consequences of civil death.
Code, 9; 49.
PROSECUTION, crim. law. The means adopted to bring a supposed
offender to justice and punishment by due course of law.
2. Prosecutions are carried on in the name of the government,
and have for their principal object the scourity and happiness of
the people in general. Hawk. B. 2, c. 25, s. 3; Bac. Ab.
Indictment, A 3.
3. The modes most usually employed to carry them on, are by
indictment; 1 Chit. Cr. Law, 132; presentment of a grand jury;
Ibid. 133; coroner's inquest; Ibid. 134; and by an
information. Vide Merl. Repert. mot Accusation.
PROSECUTOR, practice. He who prosecutes another for a crime in
the name of the government.
2. Prosecutors are public or private. The public prosecutor is
an officer appointed by the government, to prosecute all
offences; he is the attorney general or his deputy.
3. A private prosecutor is one who prefers an accusation
against a party whom be suspects to be guilty. Every man may
become a prosecutor, but no man is bound except in some few of
the more enormous offences, as treason, to be one but if the
prosecutor should compound a felony, he will be guilty of a
crime. The prosecutor has an inducement to prosecute, because he
cannot, in many cases, have any civil remedy until he has done
his duty to society by an endeavor to bring the offender to
justice. If a prosecutor act from proper motives, me will not be
responsible to the party in damages, though he was mistaken in
his suspicions; but if, from a motive of revenge, he institute a
criminal prosecution without any reasonable foundation, he may be
punished by being mulcted in damages in an action for a malicious
prosecution.
4. In Pennsylvania a defendant is not bound to plead to an
indictment where there is a private prosecutor, until his name
shall have been indorsed on the indictment as such, and on
acquittal of the defendant, in all cases except where the charge
is for a felony, the jury may direct that he shall pay the costs.
Vide 1 Chit. Cr. Law, 1 to 10; 1 Phil. Ev. Index, h. t.; 2
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Virg. Cas. 3, 20; 1 Dall. 5; 2 Bibb. 210; 6 Call. 245; 5
Rand. 669; and the article Informer.
PROSPECTIVE. That which is applicable to the future; it is
used in opposition to retrospective. To be just, a law ought
always to be prospective. 1 Bouv. Inst. n. 116.
PROSTITUTION. The common lewdness of a woman for gain.
2. In all well regulated communities this has been considered a
heinous offence, for which the woman may be punished, and the
keeper of a house of prostitution may be indicted for keeping a
common nuisance.
3. So much does the law abhor this offence, that a landlord
cannot recover for the use and occupation of a house let for the
purpose of prostitution. 1 Esp. Cas. 13; 1 Bos. & Pull. 340, n.
4. In a figurative sense, it signifies the bad use which a
corrupt judge makes of the law, by making it subservient to his
interest; as, the prostitution of the law, the prostitution of
justice.
PROTECTION, merc. law, The name of a document generally given
by notaries public, to sailors and other persons going abroad, in
which is certified that the bearer therein named, is a citizen of
the United States.
PROTECTION, government. That benefit or safety which the
government affords to the citizens.
PROTECTION, Eng. law. A privilege granted by the king to a
party to an action, by which he is protected from a judgment
which would otherwise be rendered against him. Of these
protections there are several kinds. F. N. B. 65.
PROTEST, mar. law. A writing, attested by a justice of the
peace or a consul, drawn by the master of a vessel, stating the
severity of a voyage by which a ship has suffered, and showing it
was not owing to the neglect or misconduct of the master. Vide
Marsh. Ins. 715, 716. See 1 Wash. C. R. 145; Id. 238; Id. 408,
n.; 1 Pet. C. R. 119; 1 Dall. 6; Id. 10; Id. 317; 2 Dall.
195; 3 Watts & Serg. 144; 3 Binn. 228, n.; 1 Yeates, 261.
PROTEST, legislation. A declaration made by one or more members
of a legis lative body that they do not agree with some act or
resolution of the body; it is usual to add the reasons which the
protestants have for such a dissent.
PROTEST, contracts. A notarial act, made for want of payment of
a promissory note, or for want of acceptance or payment of a bill
of exchange, by a notary public, in which it is declared that all
parties to such instruments will be held responsible to the
holder for all damages, exchanges, reexchanges, &c.
2. There are two kinds of protest, namely, protest for
non-acceptance, and protest for non-payment. When a protest is
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made and notice of the non-payment or non-acceptance given to the
parties in proper time, they will be held responsible. 3 Kent,
Com. 63; Chit. on Bills, 278; 3 Pardes. n. 418 to 441; Merl.
Repert. h. t.; COID. Dig. Merchant, F 8, 9, 10; Bac. Ab.
Merchant, &c. M 7.
3. There is also a species of protest, common in England, which
is called protest for better security. It may be made when a
merchant who has accepted a bill becomes insolvent, or is
publicly reported to have failed in his credit, or absents
himself from change, before the bill he has accepted becomes due,
or when the holder has any just reason to suppose it will not be
paid; and on demand the acceptor refuses to give it. Notice of
such protest must, as in other cases, be sent by the first post.
1 Ld. Raym. 745; Mar. 27.
4. In making the protest, three things are to be done: the
noting; demanding acceptance or payment or, as above, better
security and drawing up the protest. 1. The noting, (q. v.) is
unknown to the law as distinguished from the protest. 2. The
demand, (q. v.) which must be made by a person having authority
to receive the money. 3. The drawing up of the protest, which is
a mere matter of form. Vide Acceptance; Bills of Exchange.
PROTESTANDO, pleading. According to Lord Coke, Co. Litt. 124,
it is an exclusion of a conclusion. It has been more fully
defined to be a saving to the party who takes it, from being
concluded by any matter alleged or objected against him, upon
which he cannot join issue. Plowd. 276, b; Finch's L. 359, 366,
Lawes, Pl. 141.
2. Matter on which issue may be joined, whether it be the gist
of the action, plea, replication or other pleading, cannot be
taken by protestation; Plowd. Com. 276, b; although a man may
take by protestation matter that he cannot plead, as in an action
for taking goods of the value of one hundred dollars, the
defendatn may make protestation that they were not worth more
than fifty dollars. It is obvious that a protestation, repugnant
to or inconsistent with the gist of the plea, &c., cannot be of
any benefit to the party making it. Bro. Abr. tit. Protestation,
pl. 1, 5. It is also idle and superfluous to make protestation of
the same thing that is traversed by the plea; Plowd. 276, b: or
of any matter of fact which must necessarily depend upon another
fact protested against; as, to protest that A made no will, and
that he made no executor, which he could not do if there was no
will. Id.
3. The common form of making a protestando is in these words,
"Because pro-
testing that," &c., excluding such matters of the adversary's
pleading as are intended to be excluded in the protestando, if it
be matter of fact; or if it be against the legal sufficiency of
his pleading, "Because protesting that the plea by him above
pleaded in bar, or by way of reply, or rejoinder, &c., as the
case may be, is wholly insufficient in law." No answer is
necessary to a protestando, because it is never to be tried in
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the action in which it is made, but of such as is excluded fro
many manner of consideration in that action. Lawes' Civ. Pl. 143.
4. Protestations are of two sorts; first, when a man pleads
anything which he dares not directly affirm, or cannot plead for
fear of making his plea double; as if, in conveying to himself
by his plea a title to land, the defendant ought to plead divers
descents from several persons, but dares not affirm that they
were all seised at the time of their death; or, although he
could do so, it would make his plea double to allege two
descents, when one descent would be a sufficient bar, then the
defendant ought to plead and allege the matter introducing the
word "protesting," thus, protesting that such a one died seised,
&c., and this the adverse party cannot traverse.
5. The other sort of protestation is, when a person is to
answer two matters, and yet by law he can only plead one of them,
then in the beginning of his plea he may say, protesting or not
acknowledging such part of the matter to be true, and add, "but
for plea in this behalf," &c., and so take issue, or traverse, or
plead to the other part of the matter; and by this he is not
concluded-by any of the rest of the matter, which he has by
protestation so denied, but may afterwards take issue upon it.
Reg. Plac. 70, 71; 2 Saund. 103 a, n. 1. See 1 Chit. Pl. 534;
Arch. Civ. Pl. 245; Doct. Pl. 402; Com. Dig. Pleader, N; Vin.
Abr. Protestation Steph. Pl. 235.
PROTESTATION. An asseveration made by taking God to witness. A
protestation is a form of asseveration which approaches very
nearly to an oath. Wolff, Inst. §375.
PROTHONOTARY. The title given to an officer who officiates as
principal clerk of some courts. Vin Ab. h. t.
2. In the ecclesiastical law, the name of prothonotary is given
to an officer of the court of Rome, he is so called because he is
the first notary; the Greek word prootos signifying primus or
first. These notaries have preeminence over the other notaries,
and, are put in the rank of prelates. There are twelve of them.
Dict. de Jur. h. t.
PROTOCOL, civil law, international law. A record or register.
Among the Romans, protocollunt was a writing at the head of the
first page of the paper used by the notaries or tabellions. Nov.
44.
2. In France the minutes of notarial acts were formerly
transcribed on registers, which were called protocols. Toull. Dr.
Civ. Fr. liv. 3, t. 3, c. 6, s. 1, n. 413.
3. By the German law it signifies the minutes of any
transaction. Eneye. Amer. Protocol. In the latter sense the word
has of late been received into international law. Ibid.
PROTUTOR, civil law. He who not being the tutor of a pupil or
minor, has administered his property or affairs as if he had
been, whether he thought himself legally invested with the
authority of a tutor, or not.
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2. He who marries a woman who is tutrix, becomes, by the
marriage, a protutor. The protutor is equally responsible as the
tutor.
PROUT PATET PER RECORDUM. As appears by the record. This phrase
is frequently used in pleading; as, for example, in debt on a
judgment or other matter of record, unless when it is stated is
an inducement, it is requisite after slowing the matter of
record, to refer to it by the prout patet per recordum. 1 Chit.
Pl. *356.
PROVINCE. Sometimes this signifies the district into which a
country has been divided; as, the province of Canterbury, in
England the province of Languedoc, in France. Sometimes it means
a dependency or colony; as, the province of New Brunswick. It is
sometimes used figuratively, to signify power or authority; as,
it is the province of the court to judge of the law, that of the
jury to decide on the facts.
PROVISION, com. law. The property which a drawer of a bill of
exchange places in the hands of a drawee; as, for example, by
remittances, or when the drawee is indebted to the drawer when
the bill becomes due, provision is said to have been made.
Acceptance always presumes a provision. See Code de Comm. art.
115, 116, 117.
PROVISION, French law. An allowance granted by a judge to a
party for his support; which is to be paid before there is a
definitive judgment. In a civil case, for example, it is an
allowance made to a wife who is separated from her hushand. Dict.
de Jurisp. h. t.
PROVISIONAL SEIZURE. A term used in Louisiana, which signifies
nearly the same as attachment of property.
2. It is regulated by the Code of Practice as follows, namely:
Art. 284. The plaintiff may, in certain caws, hereafter provided,
obtain the provisional seizure of the property which he holds in
pledge, or on which he has a privilege, in order to secure the
payment of his claim.
3. Art. 285. Provisional seizure may be ordered in the
following cases: 1. In executory proceedings, when the plaintiff
sues on a title importing confession of judgment. 2. When a
lessor prays for the seizure of furniture or property used in the
house, or attached to the real estate which he has leased. 3.
When a seaman, or another person, employed on board of a ship or
water craft, navigating within the state, or persons having
furnished materials for, or made repairs to such ship or water
craft, prays that the same may be seized, and prevented from
departing, until he has been paid the amount of his claim.
4. When the proceedings are in rem, that is to say, against the
thing itself, which stands pledged for the debt, when the
property is abandoned, or in cases where the owner of the thing
is unknown or absent. Vide 6 N. S. 168; 8 N. S. 320; 7 N. S.
153; 1 Martin, R. 168; 12 Martin, R. 32.
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PROVISIONS. Food for man; victuals.
2. As good provisions contribute so much to the health and
comfort of man, the law requires that they shall be wholesome;
he who sells unwholesome provisions, may therefore be punished
for a misdemeanor. 2 East, P. C. 822; 6 East, R. 133 to 141; 3
M. & S. 10; 4 Campb. R. 10; 4 M. & S. 214.
3. And in the sale of provisions, the rule is, that the seller
impliedly warrants that they are wholesome. 3 Bl. Com. 166.
PROVISO. The name of a clause inserted in an act of the
legislature, a deed, a written agreement, or other instrument,
which generally contains a condition that a certain thing shall
or shall not be done, in order that an agreement contained in
another clause shall take effect.
2. It always implies a condition, unless subsequent words
change it to a covenant; but when a proviso contains the mutual
words of the parties to a deed, it amounts to a covenant. 2 Co.
72; Cro. Eliz. 242; Moore, 707 Com. on Cov. 105; Lilly's Reg.
h. t.; 1 Lev. 155.
3. A proviso differs from an exception. 1 Barn. k Ald. 99. An
exception exempts, absolutely, from the operation of an
engagement or an enactment; a proviso defeats their operation,
conditionally. An exception takes out of an engagement or
enactment, something which would otherwise be part of the
subject-matter of it; a proviso avoids them by way of defeasance
or excuse. 8 Amer. Jurist, 242; Plowd. 361; Carter 99; 1
Saund. 234 a, note; Lilly's Reg. h. t.; and the cases there
cited. Vide, generally Amer. Jurist, No. 16, art. 1; Bac. Ab.
Conditions, A; Com. Dig. Condition, A 1, A 2; Dwar. on Stat.
660.
PROVOCATION. The act of inciting another to do something.
2. Provocation simply, unaccompanied by a crime or misdemeanor,
does not justify the person provoked to commit an assault and
battery. In cases of homicide, it may reduce the offence from
murder to manslaughter. But when the provocation is given for the
purpose of justifying or excusing an intended murder, and the
party provoked is killed, it is no justification. 2 Gilb. Ev. by
Lofft, 753.
3. The unjust provocation by a wife of her hushand, in
consequence of which she suffers from his ill usage, will not
entitle her to a divorce on the ground of cruelty; her remedy,
in such cases, is by changing her manners. 2 Lee,, R. 172; 1
Hagg. Cons. Rep. 155. Vide Cruelty; To Persuade; 1 Russ. on Cr.
B. 3, c. 1, s. 1, page 434, and B. 3, c. 3, s. 1, pa e 486; 1
East, P. C. 232 to 241.
PROVOST. A title given to the chief of some corporations or
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societies. In France, this title was formerly given to some
presiding judges. The word is derived from the Latin praepositus.
PROXENETAE, civil law. Among the Romans these were persons
whose functions somewhat resembled the brokers of modern
commercial nations. Dig. 50, 14, 3; Domat, 1. 1, t. 17, §1, art.
1.
PROXIMITY. Kindred between two persons. Dig. 38, 16, 8.
PROXY. A person, appointed in the place of another, to
represent him.
2. In the ecclesiastical law, a judicial proctor, or one who is
appointed to manage another man's law concerns, is called a
proxy. Ayl. Parerg.
3. The instrument by which a person is appointed so to act, is
likewise called a proxy.
4. Proxies are also annual payments made by the parochial
clergy to the bishop, &c., on visitations. Tom. Law Dictionary,
h. t. Vide Rutherf. Inst. 253; Hall's Pr. 14.
5. The right of voting at an election of an incorporated
company by proxy is not a general right, and the party claiming
it must show a special authority for that purpose. Ang. on Corp.
67-69; 1 Paige's Ch. Rep. 590; 5 Day's Rep. 329; 5 Cowen, Rep.
426.
PUBERTY, civil law. The age in boys after fourteen years until
full age, and in girls after twelve years until full age. Ayl.
Pand. 63; Hall's Pract. 14; Toull. Dr. Civ. Fr. tom. 6, p. 100;
Inst. 1, 22; Dig. 1, 7, 40, 1; Code, 5, 60, 3.
PUBLIC. By the term the public, is meant the whole body
politic, or all the citizens of the state; sometimes it
signifies the inhabitants of a particular place; as, the New
York public.
2. A distinction has been made between the terms public and
general, they are sometimes used as synonymous. The former term
is applied strictly to that which concerns all the citizens and
every member of the state; while the latter includes a lesser,
though still a large portion of the community. Greenl. Ev. §128.
3. When the public interests and its rights conflict with those
of an individual, the latter must yield. Co. Litt. 181. if, for
example, a road is required for public convenience, and in its
course it passes on the ground occupied by a house, the latter
must be torn down, however valuable it may be to the owner. In
such a case both law and justice require that the owner shall be
fully indemnified.
4. This term is sometimes joined to other terms, to designate
those things which have a relation to the public; as, a public
officer, a public road, a public passage, a public house.
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PUBLIC DEBT. That which is due or owing by the government.
2. The constitution of the United States provides, art. 6, s.
1, that "all debts contracted or engagements entered into, before
the adoption of this constitution, shall be as valid against the
United States under this constitution, as under the
confederation." It has invariably been the policy since the
Revolution, to do justice to the creditors of the government. The
public debt has sometimes been swelled to a large amount, and at
other times it has been reduced to almost nothing.
PUBLIC ENEMY. This word, used in the singular number,
designates a nation at war with the United States, and includes
every member of such nation. Vatt. 1. 3, c. 5, §70. To make a
public enemy, the government of the foreign country must be at
war with the United States; for a mob, how numerous soever it
may be, or robbers, whoever they may be, are never considered as
a public enemy. 2 Marsh. Ins. 508; 3 Esp. R. 131, 132.
2. A common carrier is exempt from responsibility, whenever a
loss has been occasioned to the goods in his charge by the act of
a public enemy, but the burden of proof lies on him to show that
the loss was so occasioned. 3 Munf. R. 239; 4 Binn. 127; 2
Bailey, 1 57. Vide Enemy; People.
PUBLIC PASSAGE. This term is synonymous with public highway,
with this difference; by the latter, is understood a right to
pass over the land of another; by the former is meant the right
of going over the water which is on another's land. Carth. 193;
Hamm. N. P. 195. See Passage.
PUBLICAN, civil law. A farmer of the public revenue; one who
held a lease of some property from the public treasury. Dig. 39,
4, 1, 1; Id. 39, 4, 12, 3; Id. 39, 4, 13.
PUBLICATION. The act by which a thing is made public.
2. It differs from promulgation, (q. v.) and see also Toullier,
Dr. Civ. Fr. Titre Preliminaire, n. 59, for the difference in the
meaning of these two words.
3. Publication has different meanings. When applied to a law,
it signifies the rendering public the existence of the law; when
it relates to the opening the depositions taken in a case in
chancery, it means that liberty is given to the officer in whose
custody the depositions of witnesses in a cause are lodged,
either by consent of parties, or by the rules or orders of the
court, to show the depositions openly, and to give out copies of
them. Pract. Reg. 297; 1 Harr. Ch. Pr. 345; Blake's Ch. Pr.
143. When it refers to a libel, it is its communication to a
second or third person, or a greater number. Holt on Libels, 254,
255, 290; Stark. on Slander, 350; Holt's N. P. Rep. 299; 2 Bl.
R. 1038; 1 Saund. 112, n. 3. And when spoken of a will, it
signifies that the testator has done some act from which it can
be concluded that he intended the instrument to operate as his
will. Cruise, Dig. tit. 38, c. 5, s. 47; 3 Atk. 161; 4 Greenl.
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R. 220; 3 Rawle, R. 15; Com. Dig. Estates by devise, E 2. Vide
Com. Dig. Chancery, Q; Id. Libel, B 1; Ibid. Action upon the
case for defamation, G 4; Roscoe's Cr. Ev. 529; Bac. Ab. Libel,
B; Hawk. P. C. B. 1, c. 73, s. 10; 3 Yeates' R. 128; 10 Johns.
R. 442. As to the publication of an award, see 6 N. H. Rep. 36.
See, generally, Bouv. Inst. Index, h. t.
PUBLICIANA, civil law. The name of an action introduced by the
proctor Publicius, the object of which was to recover a thing
which had been lost. Inst. 4, 6, 4; Dig. 6, 2 1, 16 et 17. Its
effects were similar to those of our action of trover.
PUBLICITY. The doing of a thing in the view of all persons who
choose to be present.
2. The law requires that courts should be open to the public,
there can therefore be no secret tribunal, except the grand jury
(q. v.) and all judgments are required to be given in public.
3. Publicity must be given to the acts of the legislature
before they can be in force, but in general their being recorded
in a certain public office is evidence of their publicity. Vide
Promulgation; Publication.
PUBLISHER. One who does by himself or his agents make a thing
publicly known; one engaged in the circulation of books,
pamphlets, and other papers.
2. The publisher of a libel is responsible as if he were the
author of it, and it is immaterial whether he has any knowledge
of its contents or not; 9 Co. 59; Hawk. P. C. c. 73, §10; 4
Mason, 115; and it is no justification to him that the name of
the author accompanies the libel. 10 John, 447; 2 Moo. & R. 312.
3. When the publication is made by writing or printing, if the
matter be libelous, the publisher may be indicted for a
misdemeanor, provided it was made by his direction or consent,
but if he was the owner of a newspaper merely, and the
publication was made by his servants or agents, without any
consent or knowledge on his part, he will not be liable to a
criminal prosecution. In either case he will be liable to an
action for damages sustained by the party aggrieved. 7 John. 260.
4. In order to render the publisher amenable to the law, the
publication must be maliciously made, but malice will be presumed
if the matter be libelous. This presumption, however, will be
rebutted, if the publication be made for some lawful purpose, as,
drawing up a bill of indictment, in which the libelous words are
embodied, for the purpose of prosecuting the libeler; or if it
evidently appear the publisher did not, at the time of
publication, know that the matter was libelous as, when a person
reads a libel presence of others, without beforehand knowing it
to be such. 9 Co. 59. See Libel; Libeler; Publication.
PUDICITY. Chastity; the abstaining from all unlawful carnal
commerce or connexion. A married woman or a widow may defend her
pudicity as a maid may her virginity. Vide Chastity; Rape.
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PUDZELD Eng. law. To be free from the payment of money for
taking of wood in any forest. Co. Litt. 233 a. The same as
Woodgeld. (q. v.)
PUER. In its enlarged sense this word signifies a child of
either sex; though in its restrained meaning it is applied to a
boy only.
2. A case once arose which turned upon this question, whether a
daughter could take lands under the description of puer, and it
was decided by two judges against one that she was entitled. Dy.
337 b. In another case, it was ruled the other way. Rob. 33.
PUERILITY, civil law. This commenced at the age of seven years,
the end of the age of infancy, and lasted till the age of
puberty, (q. v.) that is, in females till the accomplishment of
twelve years, and in males, till the age of fourteen years fully
accomplished. Ayl. Pand. 63.
2. The ancient Roman lawyers divided puerility into proximus
infantiae, as it approached infancy, and into proximus pubertati,
as it became nearer to puberty. 6 Toullier, n. 100.
PUFFER, commerce, contracts. A person employed by the owner of
property which is sold at auction to bid it up, who does so
accordingly, for the purpose of raising the price upon bona fide
bidders.
2. This is a fraud which at the choice of the purchaser
invalidates the sale. 5 Madd. R. 37, 440; 3 Madd. R. 112; 12
Ves. 483; l Fonb. Eq. 227, n; 2 Kent, Com. 423; 11 Serg. &
Rawle, 86; Cowp. 395; 3 Ves. jun. 628; 6 T. R. 642; 2 Bro. C.
C. 326; 3 T. R. 93, 95; 1 P. A. Browne, Rep. 346; 2 Hayw. R.
328; Sugd. Vend. 16; 4 Harr. & McH. 282; 2 Dev. 126; 2 Const.
Rep. 821;. 3 Marsh. 526.
PUIS DARREIN CONTINUANCE, pleading. These old French words
signify since the last continuance.
2. Formerly there were formal adjournments or continuances of
the proceedings in a suit, for certain purposes, from one term to
another; and during the interval the parties were of course out
of court. When any matter arose which was a ground of defence,
since the last continuance, the defendant was allowed to plead
it, which allowance was an exception to the general rule that the
defendant can plead but one plea of one kind or class.
3. By the modern practice the parties are, from the day when,
by the ancient practice, a continuance would have been entered,
supposed to be out of court, and the pleading is suspended till
the day arrives to which, by the ancient practice, the
continuance would extend; at that day, the defendant is
en-titled, if any new matter of defence has arisen in the
interval, to plead it, according to the ancient plan puis darrein
continuance, before the next continuance.
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4. Pleas of this kind may be either in abatement or in bar;
and may be pleaded, even after an issue joined, either in fact or
in law, if the new matter has arisen after the issue was joined,
and is pleaded before the next adjournment. Gould on Pl. c. 6,
§123-126; Steph. Pl. 81, 398; Lawes on Pl. 173; 1 Chit. Pl.
637; 5 Peters , Rep. 232; 3 Bl. Com. 316; Arch. Civ, Pl. 353;
Bac. Ab. Pleas, Q; 4 Mass. 659; 4 S. & R. 238; 1 Bailey, 369;
4 Verm. 545; 11 John. 4; 24; 1 S. & R. 310; 3 Bouv. Inst. n.
3014-18.
PUISNE. Since born; the younger; as, a puisne judge, is an
associate judge.
PUNCTUATION, construction. The act or method of placing points
(q. v.) in a written or printed instrument.
2. By the word point is here understood all the points in
grammar, as the comma, the semicolon, the colon, and the like.
3. All such instruments are to be construed without any regard
to the punc-tuation; and in a case of doubt, they ought to be
construed in such a manner that they may have some effect, rather
than in one in which they would be nugatory. Vide Toull. liv. 3,
t. 2, c. 5, n. 430; 4 T. R. 65; Barringt. on the Stat. 394, n.
Vide article Points.
PUNISHMENT, crim. law. Some pain or penalty warranted by law,
inflicted on a person, for the commission of a crime or
misdemeanor, or for the omission of the performance of an act
required by law, by the judgment and command of some lawful
court.
2. The right of society to punish, is derived by Becoaria,
Mably, and some others, from a supposed agreement which the
persons who composes the primitive societies entered into, in
order to keep order and, indeed, the very existence of the state.
According to others, it is the interest and duty of man to live
in society; to defend this right, society may exert this
principle in order to support itself, and this it may do,
whenever the acts punishable would en-danger the safety of the
whole. And Bentham is of opinion that the foundation of this
right is laid in public utility or necessity. Delinquents are
public enemies, and they must be disarmed and prevented from
doing evil, or society must be destroyed. But, if the social
compact has ever existed, says Livingston, its end must have been
the preservation of the natural rights of the members and,
therefore the effects of this fiction are the same with those of
the theory which takes abstract justice as the foundation of the
right to punish; for, this justice, if well considered, is that
which assures to each member of the state, the free exercise of
his rights. And if it should be found that utility, the last
source from which the right to punish is derived, is so
intimately united to justice that it is inseparable from it in
the practice of law, it will follow that every system founded on
one of these principles must be supported by the others.
3. To attain their social end, punishments should be exemplary,
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or capable of intimidating those who might be tempted to imitate
the guilty; reformatory, or such as should improve the condition
of the convicts; personal, or such as are at least calculated to
wound the feelings or affect the rights of the relations of the
guilty divisible, or capable of being graduated and proportioned
to the offence, and the circumstances of each case; reparable,
on account of the fallibility of human justice.
4. Punishments are either corporal or not corporal. The former
are, death, which is usually denominated capital punishment;
imprisonment, which is either with or without labor; vide
Penitentiary; whipping, in some states, though to the honor of
several of them, it is not tolerated in them; banishment and
death.
5. The punishments which are not corporal, are fines;
forfeitures; suspension or deprivation of some political or
civil right deprivation of office, and being rendered incapable
to hold office; compulsion to remove nuisances.
6. The object of punishment is to reform the offender; to
deter him and others from committing like offences; and to
protect society. Vide 4 Bl. Com. 7 Rutherf. Inst. B. 1, ch. 18.
7. Punishment to be just ought to be graduated to the enormity
of the offence. It should never exceed what is requisite to
reform the criminal and to protect society; for whatever goes
beyond this, is cruelty and revenge, the relic of a barbarous
age. All the circumstances under which the offender acted should
be considered. Vide Moral Insanity.
8. The constitution of the United States, amendments, art. 8,
forbids the infliction of "cruel and unusual punishments."
9. It has been well observed by the author of Principles of
Penal Law, that "when the rights of human nature are not
respected, those of the citizen are gradually disregarded. Those
eras are in history found fatal to liberty, in which cruel
punishments predominate. Lenity should be the guardian of
moderate governments; severe penalties, the instruments of
despotism, may give a sudden check to temporary evils, but they
have a tendency to extend themselves to every class of crimes,
and their frequency hardens the sentiments of the people. Une loi
rigoureuse produit des crimes. The excess of the penalty flatters
the imagination with the hope of impunity, and thus becomes an
advocate with the offender for the perpetrating of the offence."
Vide Theorie des Lois Criminelles, ch. 2; Bac. on Crimes and
Punishments; Merl. Rep. mot Peine; Dalloz, Dict. mot Peine and
Capital crimes.
10. Punishments are infamous or not infamous. The former
continue through life, unless the offender has been pardoned, and
are not dependant on the length of time for which the party has
been sentenced to suffer imprisonment; a person convicted of a
felony, perjury, and other infamous crimes cannot, therefore, be
a witness nor hold any office, although the period for which he
may have been sentenced to imprisonment, may have expired by
lapse of time. As to the effect of a pardon, vide Pardon.
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11. Those punishments which are not infamous, are such as are
inflicted on persons for misdemeanors, such as assaults and
batteries, libels, and the like. Vide Crimes; Infamy;
Penitentiary.
PUNISHMENT OF DEATH. The deliberate killing, according to the
forms of law,, of a person who has been lawfully convicted of
certain crimes. See Capital crimes.
PUPIL, civil law. One who is in his or her minority. Vide. Dig.
1, 7; Id. 26, 7, 1, 2; Code, 6, 30, 18; Dig. 50, 16, 239. One
who is in ward or guardianship.
PUPILLARITY, civil law. That age of a person's life which
included infancy and puerility. (q. v.)
PUR. A corruption of the French word par, by or for. It is
frequently used in old French law phrases; as, pur autre vie. It
is also used in the composition of words, as purparty, purlieu,
purview.
PUR AUTRE VIE, tenures. These old French words signify, for
another's life. An estate is said to be pur autre vie, when a
lease is made of lands or tenements to a man, to hold for the
life of another person. 2 Bl. Com. 259; 10 Vin. Ab. 296; 2
Supp. to Ves. Jr. 41.
PURCHASE. In its most enlarged and technical sense, purchase
signifies the lawful acquisition of real estate by any means
whatever, except descent. It is thus defined by Littleton,
section 12. "Purchase is called the possession of lands or
tenements that a man hath by his own deed or agreement, unto
which possession he cometh, not by title of descent from any of
his ancestors or cousins, but by his own deed."
2. It follows, therefore, that not only when a man acquires an
estate by buying it for a good or valuable consideration, but
also when it is given or devised to him be acquires it by
purchase. 2 Bl. Com. 241.
3. There are six ways of acquiring a title by purchase, namely,
1. By, deed. 2. By devise. 3. By execution. 4. By prescription.
5. By possession, or occupancy. 6. By escheat. In its more
limited sense, purchase is applied only to such acquisitions of
lands as are obtained by way of bargain and sale for money, or
some other valuable consideration. Id. Cruise, Dig. tit. 30, s.
1, to 4; 1 Dall. R. 20. In common parlance, purchase signifies
the buying of real estate and of goods and chattels.
PURCHASER, contracts. A buyer, a vendee.
2. It is a general rule that all persons, capable of entering
into contracts, may become purchasers both of real and personal
property.
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3. But to this rule there are several exceptions. 1. There is a
class of persons who are incapable of purchasing except sub modo;
and, 2. Another class, who, in consequence of their peculiar
relation with regard to the owners of the thing sold, are totally
incapable of becoming purchasers, while that relation exists.
4. - 1. To the first class belong, 1st. Infants under the age
of twenty-one years, who may purchase, and at their full age bind
themselves by agreeing to the bargain, or waive the purchase
without alleging any cause for so doing. If they do not agree to
the purchase after their full age, their heirs may waive it in
the same manner as they themselves could have done. Cro. Jac.
320; Rolle's Ab. 731 K; Co. Litt. 2 b; 6 Mass. R. 80; 6 John.
R. 257.
5. - 2d. Femes covert, who are capable of purchasing but their
hushands may disagree to the contract, and divest the whole
estate; the hushand may further recover back the purchase-money.
1 Ld. Raym. 224; 1 Madd. Ch. R. 258; 6 Binn. R. 429. When the
hushand neither, agrees nor disagrees, the purchase will be
valid. After the hushand's death, the wife may waive the purchase
without assigning any cause for it, although the hushand may have
agreed to it; and if, after her hushand's death, she do not
agree to it, her heirs may waive it. Co. Lift. 3 a; Dougl. R.
452.
6. - 3d. Lunatics, or idiots, who are capable of purchasing. It
seems that although they recover their senses, they cannot of
themselves waive the purchase; yet if, after recovering their
senses, they agree to it, their heirs cannot set it aside. 2 Bl.
Com. 291; and see 3 Day's R. 101. Their heirs may avoid the
purchase when they die during their lunacy or idiocy. Co. Litt. 2
b.
7. - 2. It is a general rule that trustees 2 Bro. C. C. 400; 3
Bro. C. C. 483; 1 John. Ch. R. 36; 3 Desaus. Ch. R. 26; 3
Binn. Y. 59; unless they are nominally so, to preserve
contingent remainders; 11 Ves, Jr. 226; agents; 8 Bro. P. C;
42; 13 Ves. Jr. 95; Story, Ag. §9; commissioners of bankrupts;
assignees of bankrupts; solicitors to the commission; 6 Ves.
Jr. 630, n. b.; auctioneers and creditors who have been
consulted as to the mode of sale; 6 Ves. Jr. 617; 2 Johns. Ch.
R. 257; or any other persons who, by their connexion with the
owner, or by being employed concerning his affairs, have acquired
a knowledge of his property, are generally incapable of
purchasing such property themselves. And so stern is the rule,
that when a person cannot purchase the estate himself, he cannot
buy it, as agent for another; 9 Ves. Jr. 248; nor perhaps
employ a third person to bid for it on behalf of a stranger; 10
Ves. Jr. 381 for no court is equal to the examination and
ascertanment of the truth in a majority of such cases. 8 Ves. Jr.
345.
8. The obligations of the purchaser resulting from the contract
of sale, are, 1. To pay the price agreed upon in the contract. 2.
To take away the thing purchased, unless otherwise agreed upon;
and, 3. To indemnify the seller for any expenses he may have
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incurred to preserve it for him. Vide Sugd. on Vend. Index, h.
t.; Ross on Vend. Index, h. t.; Long on Sales, Index, h. t.; 2
Supp. to Ves. Jr. 449, 267, 478; Yelv. 45; 2 Ves. Jr. 100; 8
Coin. Dig. 349; 3 Com. Dig. 108.
PURCHASE-MONEY. The consideration which is agreed to be paid by
the purchaser of a thing in money. It is the duty of the
purchaser to pay the purchase-money as agreed upon in making the
contract, and, in case of conveyance of an estate before it is
paid, the vendor is entitled according to the laws of, England,
which have been adopted in several of the states, to a lien on
the estate sold for the purchase-money so remaining unpaid. This
is called an equitable lien. This doctrine is derived from the
civil law. Dig. 18, 1, 19. The case of Chapman v. Tauner, 1 Vera.
267, decided in 1684, is the first where this doctrine was
adopted. 7 S. & R. 73. It was strongly opposed, but is now firmly
established in England, and in the United States. 6 Yerg. R. 50;
4 Bibb, R. 239 1 John. Ch. R. 308; 7 Wheat. R. 46, 50 5 Monr. R.
287; 1 liar. & John. 106; 4 Har. & John. 522; 1 Call. R. 414;
1 Dana, R. 576; 5 Munf. R. 342; Dev. Eq. R. 163 4 Hawks, R.
256; 5 Conn. 468; 2 J. J. Marsh, 330; 1 Bibb. R. 590.
2. But the lien of the seller exists only between the parties
and those having notice that the purchase-money has nut been
paid. 3 J. J. Marsh. 557; 3 Gill & John. 425 6 Monr. R. 198.
PURE DEBT. In Scotland, this name is given to a debt actually
due, in contradistinction to one which is to become due at a
future day certain, which is called a future debt: and one due
provisionally, in a certain event, which is called a contingent
debt. 1 Bell's Com. 315, 5th ed.
PURE OR SIMPLE OBLIGATION. One which is not suspended by any
condition, whether it has been contracted without any condition,
or when thus contracted, the condition has been performed. Poth.
Obl. n. 176.
PURE PLEA, equity pleading. One which relies wholly on some
matter dehors the bill as for example, a plea of a release or a
settled account.
2. Pleas not pure, are so called in contradistinction to pure
pleas; they are sometimes also denominated negative pleas. 4
Bouv. Inst. n. 4275.
PURGATION. The clearing one's self of an offence charged, by
denying the guilt on oath or affirmation.
2. There were two sorts of purgation, the vulgar, and the
canonical.
3. Vulgar purgation consisted in superstitious trials by hot
and cold water, by fire, by hot irons, by batell, by corsned,
&c., which modes of trial were adopted in times of ignorance and
barbarity, and were impiously called judgments of God.
4. Canonical purgation was the act of justifying one's self,
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when accused of some offence in the presence of a number of
persons, worthy of credit, gen-erally twelve, who would swear
they believed the accused. See Compurgator; Wager of Law.
5. In modern times, a man may purge himself of an offence, in
some cases where the facts are within his own knowledge; for
example, when a man is charged with a contempt of court, he may
purge himself of such contempt, by swearing that in doing the act
charged, he did not intend to commit a contempt.
PURLIEU, Eng. law. A space of land near a forest, known by
certain boundaries, which was formerly part of a forest, but
which has been separated from it.
2. The history of purlieus is this. Henry III., on taking
possession of the throne, manifested so great a taste for forests
that he enlarged the old ones wherever he could, and by this
means enclosed many estates, which had no outlet to the public
roads, and things increased in this way until the reign of King
John, when the public reclamations were so great that much of
this land was disforested; that is, no longer had the privileges
of the forests, and the land thus separated bore the name of
purlieu.
PURPARTY. That part of an estate, which having been held in
common by parceners, is by partition allotted to any of them. To
make purparty is to divide and sever the lands which fall to
parceners. Old Nat. Br. 11.
PURPORT, pleading. This word means the substance of a writing,
as it appears on the face of it, to the eye that reads it; it
differs from tenor. (q. v.), 2 Russ. on Cr. 365; 1 Chit. Cr.
Law, 235; 1 East, R. 179, and the cases in the notes.
PURPRESTURE. According to Lord Coke, purpresture, is a close or
enclosure, that is, when one encroaches or makes several to
himself that which ought to be in common to many; as if an
individual were to build between high and low water-mark on the
side of a public river. In England this is a nuisance; and in
cases of this kind an injunction will be granted, on ex parte
affidavits, to restrain such a purpresture and nuisance. 2 Bouv.
Inst. n, 2382; 4 Id. n. 3798; 2 Inst. 28; and see Skene, verbo
Pourpr esture; Glanville, lib. 9, ch. 11, p. 239, note Spelm.
Gloss. Purpresture Hale, de Port. Mar.; Harg. Law Tracts, 84; 2
Anstr. 606; Cal. on Sew. 174 Redes. Tr. 117.
PURSE. In Turkey the sum of five hundred dollars is called a
purse. Merch. Dict. h. t.
PURSER. The person appointed by the master of a ship or vessel,
whose duty it is to take care of the ship's books, in which
everything on board is inserted, as well the names of mariners as
the articles of merchandise shipped. Rocc. Ins. note.
2. The act of congress concerning the naval establishment,
passed March 30, 1812, provides, §6, That the pursers in the Navy
of the United States shall be appointed by the president of the
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United States, by and with the advice and consent of the senate;
and that, from and after the first day of May next, no person
shall act in the character of purser, who shall not have been
thus first nominated and appointed, excepting pursers on distant
service, who shall not remain in service after the first day of
July next, unless nominated and appointed as aforesaid. And every
purser, before entering upon the duties of his office, shall give
bond, with two or more sufficient sureties, in the penalty of ten
thousand dollars, conditioned faithfully to perform all the
duties of purser in the United States.
3. And by the supplementary act to this act concerning the
naval establishment, passed March 1, 1817, it is enacted, §1,
That every purser now in service, or who may hereafter be
appointed, shall, instead of the bond required by the act to
which this is a supplement, enter into bond, with two or more
sufficient sureties, in the penalty of twenty-five thousand
dollars, conditioned for the faithful discharge of all his duties
as purser in the navy of the United States, which said sureties
shall be approved by the judge or attorney of the United States
for the district in which such purser shall reside.
PURSUER, canon law. The name by which the complainant or
plaintiff is known in the ecclesiastical courts. 3 Eng. Eccl. R.
350.
PURVEYOR. One employed in procuring provisions. Vide Code, 1,
34.
PURVIEW. That part of an act of the legislature which begins
with the words "Be it enacted," &c., aud ends before the
repealing clause. Cooke's R. 330 3 Bibb, 181. According to
Cowell, this word also signifies a conditional gift or grant. It
is said to be derived from the French pourvu, provided. It always
implies a condition. Interpreter, h. t.
TO PUT, pleading. To select, to demand; as, the said C D puts
himself upon the country; that is, he selects the trial by jury,
as the mode of settling the matter in dispute, and does not rely
upon an issue in law. Gould, Pl. c. 6. part 1, §19.
PUTATIVE. Reputed to be that which is not. The word is
frequently used, as putative father, (q. v.) putative marriage,
putative wife, and the like. And Toullier, tome 7, n. 29, uses
the words putative owner, proprietare putatif. Lord Kames uses
the same expression. Princ. of Eq. 391.
PUTATIVE FATHER. The reputed father.
2. This term is most usually applied to the father of a bastard
child.
3. The putative father is bound to support his children, and is
entitled to the guardianship and care of them in preference to
all persons but the mother. 1 Ashm. It. 55; and vide 7 East, 11;
5 Esp. R. 131; 1 B. & A. 491; Bott, P. L. 499; 1 C. & P. 268;
1 B. & B. 1; 3 Moore, R. 211; Harr. Dig. Bastards, VlI.; 3 C.
& P. 36.
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PUTATIVE MARRIAGE. This marriage is described by jurists as
"matrimonium putativum, id est, quod bona fide et solemnitur
saltem, opinions conjugis unius justa contractum inter personas
vetitas jungi." Hertius, h. t. It is a marrriage contracted in
good faith, and in ignorance of the existence of those facts
which constituted a legal impediment to the intermarriage.
2. Three circumstances must concur to constitute this species
of marriage. 1st. There must be a bona fides. One of the parties,
at least, must have been ignorant of the impediment, not only at
the time of the marriage, but must also have continued ignorant
of it during his or her life, because, if he became aware of it,
he was bound to separate himself from his wife. 2d. The marriage
must be duly solemnized. 3d. The marriage must have been
considered lawful in the estimation of the parties, or of that
party who alleges the bona fides.
3. A marriage in which these three circumstances concur,
although null and void, will have the effect of entitling the
wife, if she be in good faith, to enforce the rights of property,
which would have been competent to her if the marriage had been
valid, and of rendering the children of such marriage legitimate.
4. This species of marriage was not recognized by the civil
law; it was introduced by the canon law. It is unknown to the
law of the United States, and in England and Ireland. In France
it has been adopted by the Code Civil, art. 201, 202. In
Scotland, the question has not been settled. Burge on the Confl.
of Laws, 151, 2.
PUTTING IN FEAR. These words are used in the definition of a
robbery from the person; the offence must have been committed by
putting in fear the person robbed. 3 Inst. 68; 4 Bl. Com. 243.
2. This is the circumstance which distinguishes robbery from
all other larcenies. But what force must be used, or what kind of
fears excited, are questions very proper for discussion. The
goods must be taken against the will (q. v.) of the possessor.
For. 123.
3. There must either be a putting in fear or actual violence,
though both need not be positively shown; for the former will be
inferred from the latter, and the latter is sufficiently implied
in the former. For example, when a man is suddenly knocked down
and robbed while he is senseless, there is no fear,, yet in
consequence of the violence, it is presumed. 2 East, P. C. 711;
4 Binn. Rep. 379; 3 Wash. C. C. Rep. 209; 2 Chit. Cr. Law, 803.
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