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

   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.

   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

   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,

   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

  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

  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.

   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

  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.


   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

   PLOUGH-BOTE. An  allowance made  to a  rural tenant,  of  wood
sufficient for  ploughs, harrows, carts, and other instruments of

  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

   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,

  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

   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

   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

   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.

  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,

   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

   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

   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,

  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,

  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

   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.

  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

   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.

   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.

   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

   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.

   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

   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

   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

   POT-DE-VIN, French law. A sum of money frequently paid, at the
moment of  entering into  a contract,  be=yond the  price  agreed

   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,

   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.

   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,

  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

  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

   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

   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;

   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

  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.

   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,

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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

   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

   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.

   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

   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,

   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

   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

   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

   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.

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.

   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.

  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

   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

   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.

  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

   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.

 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

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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;

     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,

   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

  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

  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.

   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.

   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

   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

   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.

   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.

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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;

   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.

   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.

   PROPER.  That  which  is  essential,  suitable,  adapted,  and

   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

   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.

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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

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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

   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

  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

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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

   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

   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

   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.

   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

  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.

  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.

  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.

   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

   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.

   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

 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

    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;

   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,

   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

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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.

  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

  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.

  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

   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

   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.

   PURVEYOR. One  employed in procuring provisions. Vide Code, 1,

   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

  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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