



                                     P.

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

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

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

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

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

PACTUM CONSTITUTAE PECUNIAE, civil law. An agreement by which a person 
appointed to his creditor, a certain day, or a certain time, at which he 
promised to pay; or it maybe defined, simply. an agreement by which a person 
promises a creditor to pay him. 
     2. When a person by this pact promises his own creditor to pay him, 
there arises a new obligation which does not destroy the former by which he 
was already bound, but which is accessory to it; and by this multiplicity of 
obligations the right of the creditor is strengthened. Poth. Ob. Pt. 2, c. 
6, s. 9. 
     3. There is a striking conformity between the pactum constitutae 
pecuniae, as above defined, and our indebitatus assumpsit. The pactum 
constitutae pecuniae was a promise to pay a subsisting debt whether natural 
or civil; made in such a manner as not to extinguish the preceding debt, and 
introduced by the praetor to obviate some formal difficulties. The action of 
indebitatus assumpsit was brought upon a promise for the payment of a debt, 
it was not subject to the wager of law and other technical difficulties of 
the regular action of debt; but by such promise, the right to the action of 
debt was not extinguished nor varied. 4 Rep. 91 to 95; see 1 H. Bl. 550 to 
655; Doug. 6, 7; 3 Wood. 168, 169, n. c; 1 Vin. Abr. 270; Bro. Abr. Action 
sur le case, pl. 7, 69, 72; Fitzh. N. B. 94, A, n. a, 145 G; 1 New Rep. 295; 
Bl. Rep. 850; 1 Chit. Pl. 89; Toull. Dr. Civ. Fr. liv. 3, t. 3, c. 4, u. 
388, 396. 

PACTUM DE NON PETANDO, civil law. An agreement made, between a creditor and 
his debtor that the former will not demand, from the latter the debt due. By 
this agreement the debtor is freed from his obligation. This is not unlike 
the covenant not to sue, (q.v.) of the common law. Wolff, Dr. de la Nat. 
Sec. 755. 

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

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

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

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

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

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

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

PAPER-BOOK, practice. A book or paper containing an abstract of all the 
facts and pleadings necessary, to the full understanding of a case. 
     2. Courts of error and other courts, on arguments, require that the 
judges shall each be furnished with such a paper-book in the court of king's 
bench, in England, the transcript containing the whole of the proceedings, 
filed or delivered between the parties, when the issue joined, in an issue 
in fact, is called the paper-book. Steph. on Pl. 95; 3 Bl. Com. 317; 3 Chit. 
Pr. 521; 2 Str. 1131, 1266; 1 Chit. R. 277 2 Wils, R. 243; Tidd, Px. 727. 

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

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

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

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

PARAGIUM. A Latin term which signifies equality. It is derived from the 
adjective par, equal, and made a substantive by the addition of agium; 1 
Tho. Co. Litt. 681. 
     2. In the ecclesiastical law, by paragium is understood the portion 
which a woman gets on her marriage. Ayl. Par. 336. 

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

PARAPHERNALIA. The name given to all such things as a woman has a right to 
retain as her own property, after her husband's death; they consist 
generally of her clothing, jewels, and ornaments suitable to her condition, 
which she used personally during his life. 
     2. These, when not extravagant, she has a right to retain even against 
creditors; and, although in his lifetime the husband might have given them 
away, he cannot bequeath such ornaments and jewels by his will. 2 Bl. Com. 
430; 2 Supp. to Ves. jr. 376; 5 Com. Dig. 230; 2 Com. Dig. 212; 11 Vin. Ab. 
176; 4 Bouv. Inst. n. 8996-7. 

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

PARATUM HABEO. A return made by the sheriff to a capias ad respondendum, 
which signified that he had the defendant ready to bring into court. This 
was a fiction where the defendant was at large. Afterwards be was required 
by statute to take bail from the defendant, and he returned cepi corpus and 
bail bond. But still he might be ruled to bring in the body. 7 Penn. St. 
Rep. 535. 

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

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

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

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

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

PARDON, crim. law, pleading. A pardon is an act of grace, proceeding from 
the power entrusted with the execution of the laws, which exempts the 
individual on whom it is bestowed, from the punishment the law inflicts for 
a crime he has committed. 7 Pet. S. C. Rep. 160. 
     2. Every pardon granted to the guilty is in derogation of the law; if 
the pardon be equitable, the law is, bad; for where legislation and the 
administration of the law are perfect, pardons must be a violation of the 
law, But as human actions are necessarily imperfect, the pardoning power 
must be vested somewhere in order to prevent injustice, when it is 
ascertained that an error has been committed. 
     3. The subject will be considered with regard, 1. To the kinds of 
pardons. 2. By whom they are to be granted. 3. For what offences. 4. How to 
be taken advantage of 5. Their effect. 
     4.-Sec. 1, Pardons are general or special. 1. The former are express, 
when an act of the legislature is passed expressly directing that offences 
of a certain class; shall be pardoned, as in the case of an act of amnesty. 
See Amnesty. A general pardon is implied by the repeal of a penal statute, 
because, unless otherwise provided by law, an offence against such statute 
while it was in force cannot be punished, and the offender goes free. 2 
Overt. 423. 2. Special pardons are those which are granted by the pardoning 
power for particular cases. 
     5. Pardons are also divided into absolute and conditional. The former 
are those which free the criminal without any condition whatever; the. 
fatter are those to which a condition is annexed, which must be performed 
before the pardon can have any effect. Bac. Ab. Pardon, E; 2 Caines, R. 57; 
1 Bailey, 283; 2 Bailey 516. But see 4 Call, R. 85. 
     6.-Sec. 2. The constitution of the United States gives to the, 
president in general terms, "the power to grant reprieves and pardons for 
offences against the United States." The same power is given generally to 
the governors of the several states to grant pardons for crimes committed 
against their respective states, but in some of them the consent of the 
legislature or one of its branches is required. 
     7.-Sec. 3. Except in the case of impeachment, for which a pardon 
cannot be granted, the pardoning power may grant a pardon of all offences 
against the government, and for any sentence or judgment. But such a pardon 
does not operate to discharge the interest which third persons may have 
acquired in the judgment; as, where a penalty was incurred in violation of 
the embargo laws, and the custom house officers became entitled to one-half 
of the penalty, the pardon did not discharge that. 4 Wash. C.C.R. 64. See 2 
Bay, 565; 2 Whart. 440; 7 J. J. Marsh. 131. 
     8.-Sec. 4. When the pardon is general, either by an act of amnesty, 
or by the repeal of a penal law, it is not necessary to plead it, because 
the court is bound, ex officio, to take notice of it. And the criminal 
cannot even waive such pardon, because by his admittance, no one can give 
the court power to punish him, when it judicially appears there is no law to 
do it. But when the pardon is special, to avail the criminal it must 
judicially appear that it has been accepted, and for this reason it must be 
specially pleaded. 7 Pet. R. 150, 162. 
     9.-Sec. 5. The effect of a pardon is to protect from punishment the 
criminal for the offence pardoned, but for no other. 1 Porter, 475. It seems 
that the pardon of an assault and battery, which afterwards becomes murder 
by the death of the person beaten, would not operate as a pardon of the 
murder. 12 Pick. 496. In general, the effect of a full pardon is to restore 
the convict to all his rights. But to this there are some exceptions: 1st. 
When the criminal has been guilty of perjury, a pardon will not qualify him 
to be a witness at any time afterwards. 2d. When one was convicted of an 
offence by which he became civilly dead, a pardon did not affect or annul 
the second marriage of his wife, nor the sale of his property by persons 
appointed to administer on his estate, nor divest his heirs of the interest 
acquired in his estate in consequence of his civil death. 10 Johns. R. 232, 
483. 
    10.-Sec. 6. All contracts, made for the buying or procuring a pardon 
for a convict, are void. And such contracts will be declared null by a court 
of equity, on the ground that they are opposed to public policy. 4 Bouv. 
Inst. n. 3857. Vide, generally, Bac. Ab. h.t.; Com. Dig. h.t.; Nels. Ab. 
h.t.; Vin. Ab. h.t.; 13 Petersd. Ab. h.t.; Dane's Ab. h.t.; 3 lust. 233 
to 240; Hawk. b. 2, c. 37; 1 Chit. Cr. L. 762 to 778; 2 Russ. on Cr. 595 
Arch. Cr. Pl. 92; Stark. Cr. Pl. 368, 380. 

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

PARENTS. The lawful father and mother of the party spoken of. 1 Murph. R. 
336; 11 S. & R. 93. 
     2. The term parent differs from that of ancestor, the latter embracing 
not only the father and mother, but every per ascending line. It differs 
also from predecessor, which is applied to corporators. Wood's Inst. 68; 7 
Ves. 522; 1 Murph. 336; 6 Binn. 255. See Father; Mother. 
     3. By the civil law grandfathers and grandmothers, and other 
ascendants, were, in certain cases, considered parents. Dict. de Jurisp. 
Parente. Vide 1 Ashm. R. 55; 2 Kent, Com. 159; 5 East, R. 223; Bouv. Inst. 
Index, h.t. 

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

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

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

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

PARI PASSU. By the same gradation.

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

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

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

PARLIAMENT. This word, derived from the French parlement, in the English 
law, is used to designate the legislative branch of the government of Great 
Britain, composed of the house of lords, and the house of commons. 
     2. It is an error to regard the king of Great Britain as forming a part 
of parliament. The connexion between the king and the lords spiritual, the 
lords temporal, and the commons, which, when assembled in parliament, form 
the, three states of the realm, is the same as that which subsists between 
the king and those states -- the people at large -- out of parliament; 
Colton's Records, 710; the king not being, in either case, a member, branch, 
or co-estate, but  standing solely in the relation of sovereign or head. 
Rot. Par. vol. iii,. 623 a.; 2 Mann. & Gr. 457 n. 

PAROL. More properly parole. A French word, which means literally, word or 
speech. It is used to distinguish contracts which are made verbally or in 
writing not under seal, which are called, parol. contracts, from those which 
are under seal which bear the name of deeds or specialties (q.v.) 1 Chit. 
Contr. 1; 7 Term. R. 3 0 351, n.; 3 Johns. Cas. 60; 1 Chit. Pl. 88. It is 
proper to remark that when a contract is made under seal, and afterwards it 
is  modified verbally, it becomes wholly a parol contract. 2 Watts, 451; 9 
Pick. 298; 13 Wend. 71. 
     2. Pleadings are frequently denominated the parol. In some instances 
the term parol is used to denote the entire pleadings in a cause as when in 
an action brought against an infant heir, on an obligation of his ancestors, 
he prays that the parol may demur, i. e., the pleadings may be stayed, till 
he shall attain full age. 3 Bl. Com. 300; 4 East, 485 1 Hoffm. R. 178. See a 
form of a plea in abatement, praying that the parol may demur, in 1 Wentw. 
Pl. 43; and 2 Chit. Pl. 520. But a devisee cannot pray the parol to demur. 4 
East, 485. 
     3. Parol evidence is evidence verbally delivered by a witness. As to 
the cases when such evidence will be received or rejected, vide Stark, Ev. 
pt. 4, p. 995 to 1055; 1 Phil. Ev. 466, c. 10, s. 1; Sugd. Vend. 97. 

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

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

PARRICIDE, civil law. One who murders his father; it is applied, by 
extension, to one who murders his mother, his brother, his sister, or his 
children. The crime committed by such person is also called parricide. Merl. 
Rep. mot Parricide; Dig. 48, 9, 1, 1. 3, 1. 4. 
     2. This offence is defined almost in the same words in the penal code 
of China. Penal Laws of China, B. 1, s. 2, Sec. 4. 
     3. The criminal was punished by being scourged, and afterwards sewed in 
a sort of sack, with a dog, a cock, a viper, and an ape, and then thrown 
into the sea, or into a river; or if there were no water, he was thrown in 
this manner to wild beasts. Dig. 48, 9, 9; C. 9, 17, 1, 1. 4, 18, 6; Bro. 
Civ; Law, 423; Wood's Civ. Law, B. 3, c. 10, s. 9. 
     4. By the laws of France parricide is the crime of him who murders his 
father or mother, whether they, be the legitimate, natural or adopted 
parents of the individual, or the murder of any other legitimate ascendant. 
Code Penal, art. 297. This crime is there punished by the criminal's being 
taken to the place of execution without any other garment than his shirt, 
barefooted, and with his head covered with a black veil. He is then exposed 
on the scaffold while an officer of the court reads his sentence to the 
spectators; his right hand is then cut off, and he is immediately put to 
death. Id. art. 13. 
     5. The common law does not define this crime, and makes no difference 
between its punishment, and the punishment of murder. 1 Hale's P. C. 380; 
Prin. Penal Law, c. 18, Sec. 8, p. 243; Dalloz, Dict. mot Homicide. 

PARSON, eccl. law. One who has full possession of all the rights of a 
parochial church. 
     2. He is so called because by his person the church, which is an 
invisible body, is represented: in England he is himself a body corporate it 
order to protect and defend the church (which he personates) by a the 
minority, if required to bring Story on Partn. Sec. 489. 1 Bouv. Inst. n. 
1217. 398; 5 Com. Dig. 346. 

PARTICEPS FRAUDIS. fraud. Both parties be in pari delicto is not allowed to 
allege his own turpitude in such cases, when defendant at law, or prevented 
from alleging it, when plaintiff in equity, whenever the refusal to execute 
the contract at law, or the refusal to relieve against it in equity, would 
give effect to the original purpose, and encourage the parties engaged, in 
such transactions. 4 Rand. R. 372; 1 Black. R. 363; 2 Freem. 101. 

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

PARTICULAR AVERMENT, pleading. Vide Averment.

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

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

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

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

PARTIES, contracts. Those persons who engage themselves to do, or not to do 
the matters and things contained in an agreement. 
     2. All persons generally can be parties to contracts, unless they labor 
under some disability. 
     3. Consent being essential to all valid contracts, it follows that 
persons who want, first, understanding; or secondly, freedom to exercise 
their will, cannot be parties to contracts. Thirdly, persons who in 
consequence of their situation are incapable to enter into some particular 
contract. These will be separately considered. 
     4.-Sec. 1. Those persons who want understanding, are idiots and 
lunatics; drunkards and infants, 
     5.-1. The contracts of idiots and lunatics, are riot binding; as they 
are unable from mental infirmity, to form any accurate judgment of their 
actions; and consequently, cannot give a serious and sufficient 
consideration to any engagement. And although it was formerly a rule that 
the party could not stultify himself; 39 H. VI. 42; Newl. Contr. 19 1 Fonb. 
Eq. 46, 7; yet this rule has been so relaxed, that the defendant may now set 
up this defence. 3 Camp. 128; 2 Atk. 412; 1 Fonb. Eq. n. d.; and see Highm. 
on Lun. 111, 112; Long on Sales, 14; 3 Day's Rep. 90 Chit. on Contr. 29, 
257, 8; 2 Str. 1104. 
     6.-2. A person in a state of complete intoxication has no agreeing 
mind; Bull. N. P. 172; 3 Campb. 33; Sugd. Vend. 154 Stark. Rep. 126; and his 
contracts are therefore void, particularly if he has been made intoxicated 
by the other party. 1 Hen. & Munf. 69; 1 South. Rep. 361; 2 Hayw. 394; see 
Louis. Code, art. 1781; 1 Clarke's R. 408. 
     7.-3. In general the contract of an infant, however fair and 
conducive to his interest it may be, is not binding on him, unless the 
supply of necessaries to him be the object of the agreement; Newl. Contr. 2; 
1 Eq. Cas. Ab. 286; l Atk. 489; 3 Atk. 613; or unless he confirm the 
agreement after he shall be of full age. Bac. Abr. Infancy; I 3. But he may 
take advantage of contracts made with him, although the consideration were 
merely the infant's promise, as in an action on mutual promises to marry. 
Bull. N. P. 155; 2 Str. 907; 1 Marsh. (Ken.) Rep. 76; 2 M. & S. 205. See 
Stark. Ev. pt. iv. page 724; 1 Nott & McCord, 197; 6 Cranch, 226; Com. Dig. 
Infant; Bac. Abr. Infancy and Age; 9 Vin. Ab. 393, 4; Fonb. Eq. b. 1 c. 2; 
Sec. 4, note b; 3 Burr. 1794; 1 Mod. 25; Str. 937; Louis. Code, article 
1778. 
     8.-Sec. 2. Persons who have understanding, who, in law, have not 
freedom to exercise their will, are married women; and persons under duress. 
     9.-1. A married woman has, in general, no power or capacity to 
contract during the coverture. Com. Dig. Baron & Feme, W; Pleader, 2 A 1. 
She has in legal contemplation no separate existence, her husband and 
herself being in law but one person. Litt. section 28; see Chitty on Cont. 
39, 40. But a contract made with a married woman, and for her benefit, where 
she is the meritorious cause of action, as in the instance of an express 
promise to the wife, in consideration of her personal labor, as that she 
would cure a wound; Cro. Jac. 77; 2 Sid. 128; 2 Wils. 424; or of a bond or 
promissory note, payable on the face thereof to her, or to herself and 
husband, may be enforced by the husband and wife, though made during the 
coverture. 2 M. & S. 396, n. b.; 2 Bl. Rep. 1236; 1 H. Black. 108. A married 
woman has no original power or Authority by virtue of the marital tie, to 
bind her husband by any of her contracts. The liability of a husband on his 
wife's engagements rests on the idea that they were formed by his authority; 
and if his assent do not appear by express evidence or by proof of 
circumstances from which it may reasonably, be inferred, he is not liable. 1 
Mod. 125; 3 B. & C. 631; see Chitty on Cont. 39 to 50. 
    10.-2. Contracts may be avoided on account of duress. See that word, 
and also Poth. Obl. P. 1, c. 1, s. 1, art. 3, Sec. 2. 
    11.-Sec. 3. Trustees, executors, administrators, guardians, and all 
other, persons who make a contract for and on behalf of others, cannot 
become, parties to such contract on their own. account; nor are they allowed 
in any case to purchase the trust estate for themselves. 1 Vern. 465; 2 Atk. 
59; 10 Ves. 3; 9 Ves. 234; 12 Ves. 372, 3 Mer. Rep. 200; 6 Ves. 627; 8 Bro. 
P. C. 42 10 Ves. 381; 5 Ves. 707; 13 Ves. 156; 1 Pet. C. C. R. 373; 3 Binn. 
54; 2 Whart. 53; 7 Watts, 387; 13 S. & R, 210; 5 Watts, 304; 2 Bro. C. C. 
400; White's L. C. in Eq. *104-117; 9 Paige, 238, 241, 650, 663; 1 Sandf. R. 
251, 256; 3 Sandf. R. 61; 2 John. Ch. R. 252; 4 How. S. C. 503; 2 Whart. 53, 
63; l5 Pick. 24, 31. As to the transactions between attorneys and others in 
relation to client's property, see 2 Ves. jr. 201; 1 Madd. Ch. 114; 15 Ves. 
42; 1 Ves. 379; 2 Ves. 259. The contracts of alien enemies may in, general 
be avoided, except when made under the license of the government, either 
express or implied. 1 Kent, Com. 104. See 15 John. 6; Dougl. 641. As to the 
persons who make contracts in equity, see Newl. Cont. c. 1, pp. l to 33. 

PARTIES TO ACTIONS. Those persons who institute actions for the recovery of 
their rights, and those persons against whom they are instituted, are the 
parties to the actions; the former are called plaintiffs, and the latter, 
defendants. The term parties is understood to include all persons who are 
directly interested in the subject-matter in issue, who have right to make 
defence, control the proceeding, or appeal from the judgment. Persons not 
having these rights are regarded as strangers to the cause. 20 How. St. Tr. 
538, n.; Greenl. Ev. Sec. 523 
     2. It is of the utmost importance in bringing actions to have proper 
parties, for however just and meritorious the claim may be, if a mistake has 
been made in making wrong persons, either plaintiffs or defendants, or 
including too many or too few persons as parties, the plaintiff may in 
general be defeated. 
     3. Actions are naturally divided into those which arise upon contracts, 
and those which do not, but accrue to the plaintiff in consequence of some 
wrong or injury committed by the defendant. This article will therefore be 
divided into two parts, under which will be briefly considered, first, the 
parties to actions arising upon contracts; and, secondly, the parties to 
actions arising upon injuries or wrongs, unconnected with contracts, 
committed b the defendant. 
    4.-Part I. Of parties to actions arising on contracts. These are the 
plaintiffs and the defendants. 
    5.-Sect. 1. Of the plaintiffs. These will be considered as follows: 
    Sec. 1. Between the original contracting parties. An action. on a 
contract, whether express or implied, or whether it be by parol, or under 
seal, or of record, must be brought in the name of the party in whom the 
legal interest is vested. 1 East, R. 497; and see Yelv. 25, n. l; 13 Mass. 
Rep. 105; 1 Pet. C. C. R. 109; 1 Lev. 235; 3 Bos. & Pull. 147; 1 ii. Bl. 84; 
5 Serg. & Rawle, 27; Hamm. on Par. 32; 2 Bailey's R. 55; 16 S. & R. 237,; 10 
Mass. 287; 15 Mass. 286 10 Mass. 230; 2 Root, R. 119. 
     6.-Sec. 2. Of the number of plaintiffs who must join. When a contract 
is made with several, if their legal interests were joint, they must all, if 
living, join in the action for the breach of the contract. 1 Saund. 153, 
note 1; 8 Serg. & Rawle, 308; 10 Serg. & Rawle, 257; 10 East, 418; 8 T. R. 
140; Arch. Civ. Pl. 58; Yelv. 177, note 1. But dormant partners need not 
join their copartners. 8 S. & R. 85; 7 Vern. 123; 2 Vern. 65; 6 Pick. 352; 4 
Wend. 628; 8 Wend. 666; 3 Cowen, 84; 2 Harr. & Gill, 159. When a contract is 
made and a bond is given to a firm by a particular name, as A B and Son, the 
suit must be brought by the actual partners, the two sons of A B, the 
latter having been dead several years at the time of making the contract. 2 
Campb. 548. When a person who has no interest in the contract is joined with 
those who have, it is fatal. 19 John. 213 2 Penn. 817; 2 Greenl. 117. 
     7.-Sec. 3. When the interest of the contract has been assigned. Some 
contracts are assignable at law; when these are assigned, the assignee may 
maintain an action in his own name. Of this kind are promissory notes, bills 
of exchange, bail-bonds, replevin-bonds; Hamm. on Part. 108; and covenants 
running with the land pass with the tenure, though not made with assigns. 5 
Co. 24; Cro. Eliz., 552; 3 Mod. 338; 1 Sid. 157; Hamm, Part. 116; Bac. Abr.; 
Covenant, E 5. When a contract not is signable at law has been assigned, and 
a recovery on such contract is sought, the action must be in the name of 
the assignor for the use of the assignee. 
     8.-Sec. 4. When one or more of several obligees, &c., is dead. When 
one or more of several obligees, covenantees, partners or others, having a 
joint interest in the contract; not running with the land, dies, the action 
must be brought in the name of the survivor, and that fact averred in the 
declaration. 1 Dall. 65, 248; 1 East, R. 497; 2 John. Cas. 374; 4 Dalt. 354; 
Arch. Civ. Pl. 54, 5; Addis. on Contr. 285; 1 Chan. Rep. 31; Yelv. 177. 
     9.-Sec. 5. In the case o executors and administrators. When a 
personal contract, or a covenant not running with the land, has been made 
with one person only, and he is dead, the action for the breach of it must 
be brought in the name of the executor or administrator in whom the legal 
interest in the contract is vested; 2 H. Bl. 310; 3 T. R. 393; and all the 
executors or administrators must join. 2 Saund. 213; Went.95; 1 Lev.161; 2 
Nott & McCord, 70; Hamm. on Part. 272. 
    10.-Sec. 6. In the case of bankruptcy or insolvency. In the case of 
the bankruptcy or insolvency of a person who is beneficially interested in 
the performance; of a contract made before the act of bankruptcy or before, 
the assignment under the insolvent laws, the action should be brought in the 
name of his assignees. 1 Chit. Pl. 14; 2 Dall. 276; 3 Yeates, 520; 7 S. & R. 
182; 5 S. & R. 394; 9 S, & R. 434. See 3 Salk. 61; 3 T. R. 779; Id. 433; 
Hamm. on Part. 167; Com. Dig. Abatement, E 17. 
    11.-Sec. 7. In case of marriage. This part of the subject will be 
considered with reference to those cases. 1st. When the husband and wife, 
must join. 2d. When the husband must sue alone. 3d. When the wife must sue 
alone. 4th. When they may join or not at their election. 5th. Who is to sue 
in the case of the death of the husband or wife. 6th. When a woman marries, 
lis pendens. 
    12.-1. To recover the chose in action of the wife, the husband must, 
in general, join, when the cause of action would survive. 3 T. R. 348; 1 M. 
& S. 180; Com. Dig. Baron & Feme, V; Bac. Ab. Baron & Feme, K; 1 Yeates' R. 
551; 1 P. A. Browne's R. 263; 1 Chit. Pl. 17. 
    13.-2. In general the wife cannot join in any action upon a contract. 
made during coverture, as for work and labor, money lent, or goods sold by 
her during that time, 2 Bl. Rep. 1239; and see 1 Salk. 114; 2 Wils. 424.; 9 
East, 412; 1 Str. 612; 1 M. & S. 180; 4 T. R. 516; 3 Lev. 103; Carth. 462; 
Ld. Raym. 368; Cro, Eliz. 61; Com. Dig. Baron & Feme, W. 
    14.-3. When the husband is civiliter mortuus, see 4 T. Rep. 361; 2 
Bos. & Pull. 165; 4 Esp. R. 27; 1 Selw. N. P. 286; Cro. Eliz. 1519; 9 East, 
R. 472; Bac. Ab. Baron & Feme, M.; or, as has been decided in England, when 
he is an alien and has left the country, or has never been in it, the wife 
may, on her own separate contracts, sue alone. 2 Esp. R. 544; 1 Bos. & Pull. 
357; 2 Bos. & Pull. 226; 1 N. R. 80; 11 East, R. 301; 3 Camp. R. 123; 5 T. 
R. 679. But the rights of such husband being only suspended, the disability 
may be removed, in one case, by a pardon, and, in the other, by the 
husband's return, and then: he must be joined. Broom on Part. s. 114. 
    15.-4. When a party being indebted to a wife dum sola, after the 
marriage gives a bond to the husband and wife in consideration of such debt, 
they may join, or the husband may sue alone on such contract. 1 M. & B. 180; 
4 IT. R. 616 1 Chit. Pl. 20. 
    16.-5. Upon the death of the wife, if the husband survive, he may sue 
for, anything he became entitled to during the coverture; as for rent 
accrued to the wife during the coverture. 1 Rolle's Ab. 352, pl. 5; Com. 
Dig. Baron & Feme, Z; Co. Litt. 351, a, n. 1. But the husband cannot sue in 
his own right for the choses in action of the wife, belonging to her before 
coverture. Hamm. on Part. 210 to 215. 
    17. When the wife survives the husband, she may sue on all contracts 
entered into with her before coverture, which remain unsatisfied; and she 
may recover all arrears of rent of her real estate, which became due during 
the coverture, or their joint demise. 2 Taunt. 181; 1 Roll's Ab. 350 d. 
    18.-6. When a suit is instituted by a single woman, or by her and 
others, and she afterwards marries, lis pendens, the suit abates. 1 Chit. 
Pl. 437; 14 Mass. R. 295; Brayt. R. 21. 
    19.-Sec. 8. When the plaintiff, is a foreign government, it must have 
been recognized by the government of this country to entitle it to bring an 
action. 3 Wheat. R. 324; Story, Eq. Pl. Sec. 55. See 4 Cranch, 272; 9 Ves. 
347; 10 Ves. 354; 11 Ves. 283; Harr. Dig. 2276. 
    20.-Sect. 2. Of the defendants. These will be considered in the 
following order: Sec. 1. Between the original parties. The action upon an 
express contract, must in general be brought against the party who made it. 
8 East, R. 12. On implied contracts against the person subject to the legal 
liability. Hamm. Part. 48; 2 Hen. Bl. 563. Vide 6 Mass. R. 253; 8 Mass. Rep. 
198; 11 Mass. R. 335; 6 Binn. R. 234; 1 Chit. Pl. 24. 
    21.-Sec. 2. Of the number of defendants. For the breach of a joint 
contract made by several parties, they should all be made defendants; 1 
Saund: 153, note 1; Id. 291 b, n. 4; even though one be a bankrupt or 
insolvent. 2 M. & S. 23. Even an infant must be joined, unless the contract 
as to him be entirely void. 3 Taunt. 307; 5 John R. 160. Vide 5 John. R. 
280; 11 John. R. 101; 5 Mass. R. 270; 1 Pick. 500. When a joint contractor 
is dead, the suit should be brought against the survivor, 1 Saund. 291, note 
2. The misjoinder of defendants in an action ex contractu, by joining one 
who is not a contractor, is fatal. 3 Conn. 194; Pet. C. C. 16; 2 J. J. 
Marsh. 88; 1 Breese, 128; 2 Rand. 446; 10 Pick. 281. 
    22.-3. In case of a change of credit, and of covenants running with 
the land, &c. In general in the case of a mere personal contract, the action 
for the breach of it, cannot be brought against the person to whom the 
contracting party has assigned his interest, and the original party can 
alone be sued; for example, if two partners dissolve their partnership, and 
one of them covenant with the other that he will pay all the debts, a 
creditor may nevertheless sue both. Upon a covenant running with land, which 
must concern real property, or the estate therein; 3 Wils. 29; 2 H. Bl. 133; 
10 East, R. 130; the assignee of the lessee is liable to an' action for a 
breach of the covenant after the assignment of the estate to him, and while 
the estate remain in him, although he have not take possession. Bac. Ab. 
Covenant, E 34; 3 Is. 25; 2 Saund. 304, n. 12; Woodf. L. & T. 113; 7 T. R. 
312; Bull. N. P. 159; 3 Salk. 4; 1 Dall. R. 210,; 1 Fonb. Eq. 359, note y; 
Hamm. N. P. 136. 
    23.-Sec. 4. When one of several obligers, &c. is dead. When the 
parties were bound by a joint contract, and one of them dies, his executor 
or administrator is at law discharged from liability, and the survivor alone 
can be sued. Bac. Ab. Obligation, D 4; Vin. Ab. Obligation, P 20; Carth. 
105; 2 Burr. 1196. And when the deceased was a mere surety, his executors 
are not liable even in equity. Vide 1 Binn. R. 123. 
    24.-Sec. 5. In the case of executors an administrators. When the 
contracting  party is dead, his executor or administrator, or, in case of a 
joint contract, the executor or administrator of the survivor, is the party 
to be made defendant. Ham. on Part. 156. On a joint contract, the executors 
of the deceased contractor, the other surviving, are discharged at law, and 
no action can be supported against them; 6 Serg. & R. 262; 2 Whart. R. 344; 
2 Browne, Rep. 31; and, if the deceased joint contractor was a mere surety, 
his representatives are not liable either at, law or in equity. 2 Serg. & R. 
262; 2 Whart. 344; P. A. Browne's R. 31. All the executors must be sued 
jointly; when administration is taken on the debtor's estate, all his 
administrators must be joined, and if one be a married woman, her husband 
must also be a party. Cro. Jac. 519. 
    25.-Sec. 6. In the case of bankruptcy or insolvency. A discharged 
bankrupt cannot be sued. A discharge under the insolvent laws does not 
protect the property of the insolvent, and he may in general be sued on his 
contracts, though he is not liable to be arrested for a debt which was due 
and not contingent at the date. of his discharge. Dougl. 93; 8 East, R. 311; 
1 Saund. 241, n. 5; Ingrah. on Insol. 377. 
    26.-Sec. 7. In case of marriage. This head will be divided by 
considering, 1. When the husband and wife must be joined. 2. When the 
husband must be sued, alone. 3. When the wife must be sued alone. 4. When 
the husband and wife may be joined or not at the election of the plaintiff. 
5. Who is to be sued in case of the death of the husband or wife. 6. Of 
actions commenced against the wife dum sola, which are pending at her 
marriage. 
    27.-1. When a feme sole who has entered into a contract marries, the 
husband and wife must in general be jointly sued. 7 T. R. 348; All. 72; 1 
Keb. 281; 2 T. R. 480; 3 Mod. 186; 1 Taunt. 217; 7 Taunt. 432; 1 Moore, 126; 
aid, s6e 8 Johns. R. 2d ed. 115.; 15 Johns. R. 403, 483; 17 Johns. Rep, 
16't; 7 Mass. R. 291, Com. Dig. Pleader, 2 A 2; 1 Bing. R. 60. But if 
the husband be away, or live separate from his wife, she may, on a contract 
of which she is the meritorious cause, bring an action in the Paine of her 
husband, on indemnitying the latter for costs. 4 B. & A. 419; 2 C. & M. 388 
Addis. on Contr. 342. And, on such contract, she may sue as a feme sole when 
her husband is civiliter mortuus. Addis. on Contr. 342 1 Salk. 116; 1 Lord 
Raym. 147; 2 M. & W. 65; Moore, 851. 
    28.-2. When the wife cannot be considered either in person, or 
property as creating the cause of action, as in the case of a mere personal 
contract made during the coverture, the husband must be sued alone. Com. 
Dig. Pleader, 2 A 2; 8 T. R. 545; 2 B. & P. 105; Palm. 312; 1 Taunt. 217; 4 
Price, 48; 16 Johns. R. 281. 
    29.-3. The wife can in general be sued alone, in the same cases where 
she can sue alone, the cases being reversed. 
    30.-4. When the husband, in consequence of some new consideration, 
undertakes to pay a debt of the wife dum sola, he may be sued alone, or the 
husband and wife. may be made joint defendants. All. 73; 7 T. R. 349; vide 
other cases in Com. Dig. Baron & Feme, Y; 1 Rolle's Ab. 348, pl. 45, 50; 
Bac. Ab. Baron & Feme, L. 
    31.-5. Upon the death of the wife, her executor, when she has 
appointed one under a power, or her administrator, is alone responsible for 
a debt or duty she contracted dum sola. The husband, as such, is not liable. 
Com. Dig. Baron & Feme, 2 C; 3 Mod. 186; Rep. Temp. Talb. 173; 3 P. Wms. 
410. When the wife survives, she may be sued for her contracts made before 
coverture. 7 T. R. 350; 1 Camp. R. 189. 
    32.-6. When a single woman, being sued, marries lis pendens, the 
plaintiff may proceed to judgment, as if she were a feme sole. 2 Rolle's R. 
53; 2 Str, 811. 
    33. Part 2. Of parties to actions in form ex delicto. These are 
plaintiffs and defendants. 
    34.-Sect. 1. Of plaintiffs. These will be separately, considered as 
follows: 
    35.-Sec. 1. With reference to the interest. Of the plaintiff. The 
action for a tort must, in general, be brought in the name of the party 
whose legal right has been affected, 8 T. R. 330; vide 7 T. R. 47; 1 East, 
R. 244; 2 Saund. 47 d; Hamm. on Part. 35, 6; 6 Johns. R. 195;.10 Mass. R. 
125 10 Serg. & Rawle, 357. 
    36.-Sec. 2. With reference to the number of plaintiffs. It is a 
general rule that when an injury is done to the property of two or more 
joint owners, they must join in the action; and even when the property is 
several, yet when the wrong has caused a joint damage, the parties must join 
in the action. 1 Saund. 291, g. When suits are brought by tenants in common, 
against strangers for the recovery of the land, inasmuch as they have 
several titles, they cannot agreeably to the rules of the common law, join, 
but must bring separate actions; and this seems to be the rule in Missouri. 
1 Misso. R. 746. This rule has been changed in some of the states. In 
Connecticut, when the plaintiff claims on the title of all the tenants, he 
recovers for their benefit, and his possession will be theirs. 1 Swift's 
Dig. 103. In Massachusetts, Mass. Rev. St. 611, and Rhode Island, R. I. 
Laws, 208, all the tenants or any two may join or any one may sue alone. In 
Tennessee they usually join. 2 Yerg. R. 228. 
    37. When personal reputation is the object affected, two or more cannot 
join as plaintiffs in the action, although the mode of expression in which 
the slander was couched comprehended them all; as when a man addressing 
himself to three, said, you have murdered Peter. Dyer, 191, pl. 112; Cro. 
Car. 510; Goulds. pl. 6, p. 78. The reason of this is obvious, no one has 
any interest in the character of the others, the damages are, therefore, 
several to each. 
    38.-Sec. 3. In general, rights or causes of action arising ex delicto 
are not assignable. 
    39.-Sec. 4. When one of several parties who had an interest is dead. 
In such case the action must be instituted by the survivor. 1 Show. 188; S. 
C. Carth. 170. 
    40.-Sec. 5. When the party injured is dead. The executors or 
administrators cannot in general recover damages for a tort, when the, 
action must be ex delicto, and the plea to it is not guilty. Vide the 
article Actio personalis moritur cum persona, where the subject is more 
fully examined. 
    41.-Sec. 6. In case of insolvency. The statutes generally authorize 
the trustee or assignee of an insolvent to institute a suit in his own name 
for the recovery of the rights and property of the insolvent. 6 Binn. 189; 8 
Serg. & Rawle, 124. But for torts to the person of the insolvent, as for 
slander, the trustee or assignee cannot sue. W. Jones' Rep. 215. 
    42.-Sec. 7. When the tort has been committed, against a woman dum sola 
who afterwards married. A distinction is made between those injuries 
committed before and those which take place during coverture. For injuries 
to the person, personal or real property of the wife, committed before 
coverture, when the cause of action would survive to the wife, she must join 
in the action. 3 T. R. 627; Rolle's Ab. 347; Com. Dig. Baron & Feme, V. For 
an injury to the person of the wife during coverture, by battery, or to her 
character, by slander, or for any other such injury, the wife must be joined 
with her husband in the suit; when the injury is such that the husband 
receives a separate damage or loss, as if in consequence of the battery, he 
has been deprived of her society or been put to expense, he may bring a 
separate action, in his own name; and for slander of the wife, when words 
are not actionable of themselves, and the husband has received some special 
damages, the husband must sue alone. 1 Lev. 140; 1 Salk. 119; 3 Mod. 120. 
    43.-Sect. 2. Of the defendants. Sec. 1. Between the original parties. 
All natural persons are liable to be sued for their tortious acts, 
unconnected with or in disaffirmance of a contract; an infant is, therefore, 
equally liable with an adult for slander, assaults and batteries, and the 
like; but the plaintiff cannot bring an action ex delicto which arose out of 
a contract, and by that means charge an infant for a breach of a contract. 
The form is of no consequence; the only question is whether the action arose 
out of contract or otherwise. A plaintiff who hired a horse to an infant, 
and the infant by hard, improper and injudicious driving, killed the horse,, 
cannot maintain an action ex delicto to recover damages for a breach of this 
contract. 8 Rawle's R. 351; 6 Watts' R. 9; 8 T. R. 385; Hamm. N. P. 267. But 
see contra, 6 Cranch,226; 15 Mass. 359; 4 McCord, 387. Vide Infant. 
    44.-Sec. 2. As to the number of defendants. There are torts which, 
when committed by several, may authorize a joint action against all the 
parties; but when in legal contemplation several cannot concur in the act 
complained of, separate actions must be brought against each; the cases of 
several persons joining in the publication of a libel, a malicious 
prosecution, or an assault and battery, are cases of the first kind verbal 
slander is of the second. 6 John. R: 32. In general, When the parties have 
committed a tort which might be committed by several, they may be jointly 
sued, or the plaintiff may sue one or more of them and not sue the others, 
at his election. Bac Ab. Action Qui Tam, D; Roll. Ab. 707; 3 East, R. 62. 
    45.-Sec. 3. When the interest has been assigned. A liability for a 
tort cannot well be assignee; but an estate may be assigned on which was 
erected a nuisance, and the assignee will be liable for continuing it, after 
having possession of the estate. Com. Dig. Case, Nuisance, B; Bac. Ab. 
Actions, B; 2 Salk. 460; 1 B. & P. 409. 
    46.-4. When the wrongdoer is dead. In this case the remedy for wrongs 
ex delicto, and unconnected with contract, cannot in general be maintained. 
Vide Actio personalis moritur cum persona. 
    47.-Sec. 5. In case of insolvency. Insolvency does not discharge the 
right of action of the plaintiff in any case; it merely liberates the 
defendant from arrest when he has received the benefit of, and been 
discharged under, the insolvent laws; an insolvent may therefore be sued for 
his torts committed before his discharge. 
    48.-Sec. 6. In case of marriage. Marriage does not affect or change 
the liabilities of the husband and he is alone to be sued for his torts 
committed either before or during the coverture. But it is otherwise with 
the wife; after her marriage she has no personal property to pay the damages 
which may be recovered, and she cannot even appoint an attorney to defend 
her. For her torts committed by her before the marriage, the action must be 
against the husband and wife jointly. Bac. Ab. Baron and Feme, L; 5 Binn. 
43. They must also be sued jointly for the torts of the wife during the 
coverture, as for slander, assault and battery, &c. Bac. Ab. Baron and Feme, 
L. See, generally, as, to parties to actions,, 3 United States Dig. 
Pleading, I, and Promissory Note, XVI.; Bouv. Inst. Index, h.t. 

PARTIES TO A SUIT IN EQUITY. The person who seeks a remedy in chancery by 
suit, commonly called a plaintiff, and the person against whom the remedy is 
sought, usually denominated the defendant, are the parties to a suit in 
equity. 
     2. It is of the utmost importance, that there should be proper parties; 
and therefore no rules connected with the science of equity pleading, are so 
necessary to be attentively considered and observed, as those which relate 
to the persons who are to be made parties. to a suit, for when a mistake in 
this respect is discovered at the hearing of the cause, it may sometimes be 
attended with defeat, and will, at least, be followed by delay and expense. 
3 John. Ch. R. 555; 1 Hopk. Ch. R. 566; 10 Wheat. R. 152. 
     3. A brief sketch will be here given by considering, 1. Who may be 
plaintiffs. 2. who may be made defendants. 3. The number of the parties. 
     4.-Sec. 1. Of the plaintiff. Under this head will be considered who 
may sue in equity: and, 
     5.-1. The government, or as the style is in England, the crown) may 
sue in a court of equity, not only in suits strictly on behalf of the 
government, for its own peculiar rights and interest, but also on behalf of 
the rights and interest of those, who partake of its prerogatives, or claim 
its peculiar protection. Mitf. Eq. Plead. by Jeremy, 4, 21-24; Coop. Eq. 21, 
101. Such suits  are usually brought by the attorney general. 
     6.- 2. As a general rule all persons, whether natural or artificial, as 
corporations, may sue in equity; the exceptions are persons who are not sui 
juris, as a person not of full age, a feme covert, an idiot, or lunatic. 
     7. The incapacities to sue are either absolute, or partial. 
     8. The absolute, disable the party to sue during their continuance; the 
partial, disable the party to sue by himself alone, without the aid of 
another. In the United States, the principal ab solute incapacity, is 
alienage. The alien, to be disabled to sue in equity, must be an alien 
enemy, for an alien friend may sue in chancery. Mitf. Equity, PI, 129; Coop. 
Equity Pl. 27. But still the subject matter of the suit may. disable an 
alien to sue. Coop. Eq. Pl. 25; Co. Lit. 129 b. An alien sovereign or an 
alien corporation may maintain a suit in equity in this country. 2 Bligh's 
Rep. 1, N. S.; 1 Dow. Rep.. 179, N. S.; 1 Sim. R. 94; 2 Gall. R. 105; 8 
Wheat. Rep. 464; 4 John. Ch. Rep. 370. In case if a foreign sovereign, he 
must have been recognized by the government of this country before he can 
sue. Story's Eq. pl. Sec. 55; 3 Wheat. Rep. 324; Cop. Eq. Pl. 119 
     9. Partial incapacity to sue exists in the case of infants, of married 
women, of idiots and lunatics, or other persons who are incapable, or are by 
law specially disabled to sue in their own names; as for example, in 
Pennsylvania, and some other states, habitual drunkards, who are under 
guardianship. 
    10.-1. An infant cannot, by himself, exhibit a bill, not only on account 
of his want of discretion, but because of his inability to bind himself for 
costs. Mitf. Eq. Pl. 25. And when an infant sues, he must sue by his next 
friend. Coop, Eq. 27; 1 Sm. Chan. Pl. 54. But as the next friend may 
sometimes bring a bill. from improper motives, the court will, upon a proper 
application, direct the master to make inquiry on this subject, and if there 
be reason to believe it be not brought for the benefit of the infant, the 
proceedings will be stayed. 3 P. Wms. 140; Mitf. Eq. Pl. 27; Coop. Eq. Pl. 
28. 
    11.-2. A feme covert must, generally, join with her husband; but when 
he has abjured the realm, been transported for felony, or when he is civilly 
dead, she may sue as a feme sole. And when she has a separate claim, she may 
even sue her husband, with the assistance of a next friend of her own 
selection. Story's Eq. Pl. Sec. 61; Story's Eq. Jur. Sec. 1368; Fonb. Eq. 
b. 1, c. 2, Sec. 6, note p. And the husband may himself sue the wife. 
    12.-3. Idiots and lunatics are generally under the guardianship of 
persons who are authorized to bring a suit in the idiot's name, by their 
guardian or committee. 
    13.-Sec. 2. Of the defendant. 1. In general, those persons who may sue 
in equity, may be sued. Persons sui juris may defend themselves, but those 
under an absolute or partial inability, can make defence only in a 
particular manner. A bill may be exhibited against all bodies politic or 
corporate, against all persons not laboring under any disability, and all 
persons subject to such incapacity, as infants, married women, and lunatics, 
or habitual drunkards.  
    14.-2. The government or the state, like the king in England, cannot 
be sued. Story, Eq. Pl. Sec. 69. 
    15.-3. Bodies politic or corporate, like persons sui juris, defend a 
suit by themselves. 
    16.-4. Infants institute a suit, as has been seen, by next friend, but 
they must defend a suit by guardian appointed by the court, who is usually 
the nearest relation, not concerned in interest, in the matter in  question. 
Mitf. Eq. Pl. 103; Coop. Eq. Pl. 20, 109; 9 Ves. 357; 10 Ves. 159; 11 Ves. 
563; 1 Madd. R. 290; Vide Guardian, n. 6. 
    17.-5. Idiots and lunatics defend by their committees, who, in 
ordinary circumstances, are appointed guardians ad litem, for that purpose, 
as a matter of course. Mitf. Eq. Pl. 103; Coop. Eq. Pl. 30, 32; Story's Eq. 
Pl. SS70; Shelf on Lun. 425.; and vide 2 John. Ch. R. 242, where, Chancellor 
Kent held, that the idiot need not be made a party as defendant to a bill 
for the payment of his debts, but his committee only. When the idiot or 
lunatic has no committee, or the latter has an interest adverse to that of 
the lunatic or idiot, a guardian ad litem will be appointed Mitf. Eq. Pl. 
103;; Story's Eq. Pl. Sec. 70. 
    18.-6. In general, a married woman, when she is sued, must be joined 
with her husband, and their answer must also be joint. But there axe 
exceptions to this rule in both its requirements. 
    19.-1. A married woman may be made a defendant, and answer as a feme 
sole, in some instances, as when her husband is plaintiff in the suit, and 
sues her as defendant, and from the like necessity, when the husband is an 
exile or has abjured the realm, or has been transported under a criminal 
sentence, or is an alien enemy. She may be sued and answer as a feme sole. 
Mitf. Eq. Pl. 104, 105; Coop. Eq. Pl. 30. 
    20.-2. When her husband is joined, or ought to be joined, she cannot 
make a separate defence, without a special order of court. The following are 
instances where such orders will made. When a married woman claims as 
defendant in opposition to her husband, or lives separate from him, or 
disapproves of the defence he wishes her to make, she may obtain an order of 
court for liberty to answer, and defend the suit separately. And when the 
husband is abroad, the plaintiff may obtain, an order that she shall answer 
separately; and, if a woman obstinately refuses to join a defence with her 
husband, the latter may obtain an order to compel her to make a separate 
answer. Mitf. Eq: Pl.: 104; Coop. Eq. Pl. 30; Story's Eq 71. 
    21.-3. As to the number of parties. It is a general rule that every 
person who is at all interested in the subject-matter of the suit, must be 
made a party. It is, the constant aim of a court of equity, to do complete 
justice by deciding upon and settling the rights of all persons interested 
in the subject of the suit, to make the performance of the order of the 
court perfectly safe to those who are compelled to obey it, and, to prevent 
future litigation. For this purpose, all persons materially interested in 
the subject ought to be parties to the suit, plaintiffs or defendants, 
however numerous they may be, so that a complete decree may be made binding 
on those parties. Mitford's Eq. Pl. 144; 1 John. Ch. R. 349; 9 John. R. 442; 
2 Paige's C. R. 278; 2 Bibb, 184; 3 Cowen's R. 637; 4 Cowen's R. 682 9 
Cowen's R. 321; 2 Eq. Cas. Ab. 179; 3 Swans. R. 139. When a great number of 
individuals are interested as in the instance of creditors seeking an 
account of the estate of their deceased debtor for payment of their demands, 
a few suing on behalf of the rest may substantiate the suit, and the other 
creditors may come in under the decree. 2 Ves. 312, 313. In such case the 
bill should expressly show that it is fifed as well on the behalf of other 
members as those who are really made the complainants; and the parties must 
not assume a corporate, name, for if they assume the style of a corporation, 
the bill cannot be sustained. 6 Ves. jr. 773; Coop. Eq. Pl. 40; 1 John. Ch. 
R. 349; 13 Ves. jr. 397 16 Ves. jr. 321; 2 Ves. sen. 312 S. & S. 18; Id. 
184. In some cases, however, when all the persons interested are, not made 
parties, yet, if there be such privily between the plaintiffs and 
defendants, that a complete decree may be made, the want of parties is not a 
cause of demurrer. Mitf. El q. Pl. 145. Vide Calvert on Parties to Suits in 
Equity; Edwards on Parties to Bills in Chancery; Bouv Inst. Index, h.t. 

PARTITION, conveyancing. A deed of partition is, one by which lands held in 
joint tenancy, coparcenary, or in common, are divided into distinct 
portions, and allotted to the several parties, who take them in severalty. 
     2. In the old deeds of partition, it was merely agreed that one should 
enjoy a particular part, and the other, another part, in severalty; but it 
is now the practice for the parties mutually to convey and assure to each 
other the different estates which they are to take in severalty, under the 
partition. Cruise Dig. t. 32, c. 6, s. 15. 

PARTITION, ?states. The division which is made between several persons, of 
lands, tenements, or hereditaments, or of goods and chattels which belong to 
them as co-heirs or co-proprietors. The term is more technically applied to 
the division of real estate made between coparceners, tenants in common or 
joint tenants. 
     2. The act of partition ascertains and fixes what each of the co-
proprietors is entitled to have in severalty 
     3. Partition is either voluntary, or involuntary, by compulsion. 
Voluntary partition is made by the owners of the estate, and by a conveyance 
or release of that part to each other which is to be held by him in 
severalty. 
     4. Compulsory partition is made by virtue of special laws providing 
that remedy. "It is presumed," says Chancellor Kent, 4 Com. 360, "that the 
English statutes of 31 and 32 Henry VIII. have been generally reenacted and 
adopted in this country, and probably, with increased facilities for 
partition." In some states the courts of law have jurisdiction; the courts 
of equity have for a long time exercised jurisdiction in awarding partition. 
1 Johns. Ch. R. 113; 1 Johns. Ch. R. 302; 4 Randolph's R. 493; State Eq. 
Rep. S. C. 106. In Massachusetts, the statute authorizes a partition to be 
effected by petition without writ. 15 Mass. R. 155; 2 Mass. Rep. 462. In 
Pennsylvania, intestates' estates, may be divided upon petition to the 
orphans' court. By the civil code of Louisiana, art. 1214, et seq., 
partition of a succession may be made. Vide, generally, Cruise's Dig. tit. 
32, ch. 6, s. 1 5; Com. Dig. Pleader, 3 F; Id. Parcener, C; Id. vol. viii. 
Append. h.t. 16 Vin. Ab. 217; 1 Supp. to Yes. jr. 168, 171; Civ. Code of 
Louis. B. 3, t. 1, c. 8. 
     5. Courts of equity exercise jurisdiction in cases of partition on 
various grounds, in cases of such complication of titles, when no adequate 
remedy can be had at law; 17 Ves. 551; 2 Freem. 26; but even in such cases 
the remedy in equity is more complete, for equity directs conveyances to be 
made, by which the title is more secure. "Partition at law, and in equity," 
says Lord Redesdale, "are very different things. The first operates by the 
judgment of a court of law, and delivering up possession in pursuance of it, 
which concludes all the parties to it. Partition in equity proceeds upon 
conveyances to be executed by the parties; and if the parties be not 
competent to execute the conveyance, the partition cannot be effectually 
had." 2 Sch. & Lef. 371. See 1 Hill. Ab. c. 55, where may be found an 
abstract of the laws of the several states on this subject. 

PARTNERS, contracts. Persons who have united together and formed a 
partnership. 
     2. Every person sui juris is competent to contract the relation of a 
partner. An infant may by law be a partner. 5 B & A. 159; but a feme covert, 
not being capable of contracting, cannot enter into partnership; and 
although married women are not unfrequently entitled to shares in banking 
houses, and other mercantile concerns, under positive covenants, yet when 
this happens, their husbands are entitled to such shares, and become 
partners in their steads. Whether a feme sole trader in Pennsylvania could 
enter into such contract, seems not settled. See 2 Serg. & Rawle, 189; see 
also, 2 Nott & McC. R. 242; 2 Bay, 162, 333; Code Civ. par Sirey, art. 220. 
     3. Partners are considered as ostensible, dormant, or nominal partners. 
1. An actual ostensible partner is a party who not only participates, in the 
profits and contributes to the losses, but.who appears and exhibits himself 
to the world as a person connected with the partnership, and as forming a 
component member of a firm. He is clearly answerable for the debts and 
engagements of, the partnership; his right to a share of the, profits, or 
the permitted exhibition of his name as partner, would be sufficient to 
render him responsible. 6 Serg. & Rawle, 259, 337; Barnard. 343; 2 Blackst. 
R. 998; 17 Ves. 404;. 18 Ves. 301; 1 Rose, 297; 16 Johns. R. 40; 3 Hayw. R. 
78. 
     4.-2. A dormant partner is one who is a participant in the profile of 
the trade, but his name being suppressed and concealed from the firm, his 
interest is consequently not apparent. He is liable as a partner, because he 
receives and takes from the creditors a part of that fund which is the 
proper security to them for the satisfaction of debts, and upon which they 
rely for payment. 16 Johns. R. 40. Another reason assigned for subjecting a 
dormant partner to responsibility is, that if he were exempted he would 
receive usurious interest for his capital, without its being attended with 
any risk. 1 Dougl. 371; 4 East, R. 143; 10 Johns. R. 226; 4 B. & A. 663; 8 
Man. Gr. & Scott, 641, 650. But in order to render one liable as a partner, 
he must receive the profits as such, and not merely his wages; to be paid 
out of the profits. Vide Profits. 
     5.-3. A, nominal partner is one who has not any actual interest in 
the trade or its profits, but, by allowing his name to be used, he holds 
himself out to the world as having an apparent interest. He is liable as a 
partner, because of these false appearance he holds forth to the world in 
representing himself to be jointly concerned in interest with those with 
whom he is apparently associated. 2 H. Bl. 235; 1 Esp. N. P. O. 29; 6 Serg. 
& R. 338; Watts. Partn. 26. 
     6. A partner in a private commercial partnership cannot introduce a 
stranger into the firm as a partner without the consent of all the 
copartners. If he should attempt to do so, this may make such stranger a 
partner with the partner who has associated with such third person; this 
will be a partnership, distinct from the first, and limited to the share of 
that partner who has so joined himself with another. 2 Rose 255; Domat, de 
la Societe, tit. 8, s. 2, n. 5. 
     7. As between the members of a firm and the persons having claims upon 
it, each individual member is answerable in solido for the amount of the 
whole of the debts contracted by the partnership, without reference either 
to the extent of his own separate beneficial interest in the concern, or. to 
any private arrangement or agreement that may exist between himself and his 
copartners, stipulating for a restricted responsibility. 1 Ves. & Bea. 157; 
9 East, 527; 5 Burr. 2611; 2 Bl. R. 947; 1 East, R. 20; 1 Ves. sen. 497; 2 
Desaus. R. 148; 4 Serg. & Rawle, 356; 6 Serg. & Rawle, 333; Kirby, 53, 77, 
147. In Louisiana, ordinary partners are not bound in solido for the debts 
of the partnership; Civ. Code of Lo. art. 2843; each partner is bound for 
his share of the partnership debts, calculating such share in proportion to 
the number of the partners, without any attention to the proportion of the 
stock or profits each is entitled to id. art. 2844. 
     8. Partners are bound by what is done by one in the course of the 
business of the partnership. Their liability under contracts is commensurate 
and coextensive with their rights. Although the general rule of law is, that 
no one is liable upon any contract except such as are privy to it; yet this 
is not contravened by the liability of partners, as they are imagined 
virtually present at and sanctioning the proceedings they singly enter. into 
in the course of trade; or as each is vested with a power enabling him to 
act, at once as principal and as the authorized agent of his copartners. 
Wats. Partn. 167; Gow. Partn. 53. It is doubtful, however, whether one can 
close the business by a general assignment of the partnership property for 
the benefit of creditors. Pierpont and Lord v. Graham. Cir. Court, April 
1820, MS. Whart. Dig. 453, 1st ed.; 4 Wash. C. C. R. 232; see 1 Brock. R. 
456; 3 Paige's R. 517; 5 Paige's R. 30; 1 Desaus. R. 537; 4 Day's. R. 425; 5 
Cranch, 300; 1 Hoffm. R. 08, 511; Sto. Partn. Sec. 101; 2 Washb. R. 390. 
     9. One partner can, in simple contracts, bind his copartners in 
transactions relative to the partnership. 7 T. R. 207; 4 Dall. 286; 1 Dall. 
269. But a security given by, one partner, in the partnership name, known to 
be for his individual debt, does not bind the firm. 2 Caines' R. 246; 4 
Johns. R. 251; 4 Johns. R. 262, in note; 2 Johns. R. 300; 16 Johns. R. 34; 4 
Serg. & Rawle, 397. Nor can one partner bind his copartners by deed; and 
this both for technical reason and the general policy of the law. Wats. 
Partn. 218; Gow on Partn. 83; 3 Murph. 321; 4 Sm. & Marsh. 261; 7 N. H. Rep. 
549; 1 Pike, 206; 2 Harr. 147; 2 B. Monr. 267; 5 B. Monr. 47; 4 Miss. 417; 1 
McMullen, 311; 3 Johns. Cas. 180; Taylor's R. 113; 2 Caines' R. 254; 2 
Caines' Err. 1;. 2 Johns. R. 213; 19 Johns. R. 513; 1 Dall. 11,9. But see 6 
Watts & Serg. 165, where it is said this rule admits of some 
qualifications. The rule does not however apply to cases where the object is 
to discharge a debt as due to it; as to give a general release by deed. 3 
John. 68; 7 N. H. Rep. 550; 1 Wend. 326; 20 Wend. 251; 22 Wend. 324. It 
seems to be an admitted principle, that one partner has no power to submit 
to arbitration any matters whatsoever, concerning or arising out of the 
partnership business. Story, Partn. Sec. 114; Com. Dig. Arbitrament, D 2; 3 
Bing. R. 101; 1 C. M. & R. 681; 1 Pet. R. 222; 19 John. R. 137; 3 Kent, Com. 
49, 4th ed. But in Pennsylvania, 12 S. & R. 243, and Kentucky, 3 Mont. R. 
433, one, partner may by an unsealed, instrument refer any partnership 
matter to arbitration, though he has no implied authority to consent to an 
order for a judgment in an action against himself and his copartner. 3 Mann. 
G. & Scott, 742. Nor has one partner the power to confess a judgment, or 
authorize the confession of a judgment against the firm, when no writ has 
been issued against both. 1 Wend. 311; 9 Wend. 437; 1 Blackf. 252; 1 Scamm. 
428, 442. Such a judgment, however is binding on the one who confessed it. 2 
Bl. R. 1133; 1 Dall. 119; 1 W. & S. 340, 519; 7 W. & S. 142; 2 Caines, 254; 
20 Wend. 609; and see 7 Watts, 331; 1 W. & S. 519, 525; 2 Miles, 436; 1 
Hoff. Ch. R. 525. 
    10. With regard to the tight of the majority of, the partners, when 
there is a dissent among them, it may be laid down, 1. That when there are 
stipulations on this subject, they must govern. Tum. & Russ. 496, 517. 2. In 
the absence of all agreement on the subject, each partner has an equal 
voice, though their interests be different, and a majority have a right to 
conduct the business. 3 John. Ch. R. 400; 3 Chit. Com. Law, 236; Colly. 
Partn. B. 2, c. 2, s. 1; Id. B. 3, c. 1, s. 262, Story Partn. 123. 3. When 
there are only two partners, and they dissent, neither can bind the 
partnership, when the person with whom they deal has notice of such 
disagreement. 1 Stark. R. 164. See 1 Camp. R. 403; 10 East, R. 264; 7 Price, 
Rep. 193; 6 Ves. 777; 16 Vin. Ab. 244. But this right of the majority is 
confined to transactions in the usual scope of the business, and not to a 
change of the articles of the partnership, for in such case all the partners 
must consent, 4 John. Ch. R. 573. 
    11. The stock used in a joint undertaking by way of partnership in 
trade, is always considered in common and not as joint property, and 
consequently there is no survivorship therein; jus accrescendi inter 
mercatores, pro beneficio commercii, locum non habet. On the death of one 
partner, therefore, his representatives become tenants in common with the 
survivor, of all the partnership effects in possession. But with respect to 
choses in action, survivorship so far exists at law, as that the remedy or 
right to reduce them into possession vests exclusively in the survivor; 
although when they are recovered, the representatives of the deceased 
partner have, in equity, the same right of sharing and participating in them 
which their testator or intestate would have possessed had he been living. 1 
Ld. Raym. 340. See 2 Dall. 65, 66, in note; 1 Dall. 248; 4 Dall. 354; 2 
Serg. & Rawle, 494. 
    12. When real estate is owned by a partnership, it is held by the 
partners subject in all respects to the ordinary incident's of land held in 
common. 1 Sumn. R. 174; 7 Conn. 11; 5 Hill, (N. Y.) Rep. 118; 4 Mete. 537. 
But in equity the partners may by agreement, express or implied, affect real 
estate with a trust as, a partnership property, and, by that means, render 
it in, equity subject to the rules applicable to partnership property as 
between the partners themselves and all claiming under them. 2 Edw. R. 28; 2 
Rand. R. 183; 7, S. & R. 438, 441; Conn. 11; 5 Metc. 582; 6 Yerg. 20. 
     See, generally, as to partners, 5 Com. Dig. Merchant, D; Bac. Abr. 
Merchant, C; Wats. on Partn. passim; Gow on Partn. passim; Supp. to Ves. jr. 
vol. 1, p. 36, 279 281, 312, 389, 449, 503; Id. vol. 2, p. 40, 314, 315, 
317, 362, 364, 377, 384, 456; 1 Salk. 291, 392; 1 Swanst. R. 506, 9; 10 East 
R. 265; 4 Ves. 396; 1 Hare & Wall. Sel. Dec. 292, 304; Civ. Code of Lo. B. 
3, t. 11; Code Civ. L. 3, t. 9; Code de Proc. Civ. L. 1, t. 3; Chit. Contr. 
66 to 82; Poth. Contrat de Societe; Bouv. Inst. Index, h.t. Vide Articles 
of Partnership; Death of. a partner; Dissolution; Firm; Partnership. 

PARTNERSHIP, contracts. An agreement between two or more persons, for 
joining together their money, goods, labor and skill, or either or all of 
them, for the purpose of advancing fair trade, and of dividing the profits 
and losses arising from it, proportionably or otherwise, between them. 2 
Bouv. Inst. n. 1435; Watson on Partn. 1; Gow on Partn. 2; see Civ. Code of 
Lo. art. 2772; Code Civ. art. 1832; Forbes. Inst. of Scotch Law, part 2, B. 
3, s. 3, p. 184; edit. Edin. 1722, 12mo.; Dolmat, Civ. Law, vol. 1, p. 85; 
9. John. R. 488; Puffend. B. 5, c. 8; 2 H. Bl. 246; 1 H. Bl. 37; Ersk. Inst. 
B. 3, t. 3, Sec. 18; Tapia, Elementos de Jurisp. Mercantil, p. 86; 5 Duv. 
Dr. Civ. Fr. tit. 9, c. 1, n, 17; 4 Pard. Dr. Com. n. 966; 2 Bell's Com. 
611, 5th ed.; Aso & Mann. Inst. B. 2, tit. 
     1. Sometimes partnership signifies a moral being composed of the 
reunion of all the partners. 4 Pard. n. 966. As a partnership has a separate 
existence as a person, it becomes liable to fulfill all its engagements, and 
the partners are individually bound and responsible only on its default, as 
sureties. 2 Bell's Comm. B. 6, c. 1, n. 4, p. 619, 5th ed. 
     2. Partnerships will be considered, 1st. In respect to their character 
and extent, as they regard property. 2d. With relation to the number and 
character of parties. 3d. As they are divided by the French code. 4th. As to 
their creation. 5th. As to their object. 6th. As to their duration. 7th. As 
to their dissolution. 8th. As to partnerships in Louisiana. 
     3.-Sec. 1. In respect to their character and extent, as they regard 
property, partnerships maybe divided into three classes, namely: universal 
partnerships; general partnerships; and limited or special partnerships. 1. 
A universal partnership is one where the parties agree to bring into the 
firm all their property, real, personal and mixed, and to employ all their 
skill, labor, and services, in the trade, or business, for their common 
benefit. This, kind of partnership is perhaps unknown in the United States. 
5 Mason, R. 176. 
     4.-2. General partnerships are properly such, where the parties carry 
on all their trade and business for their joint benefit and profit; and it 
is not material whether the capital stock be limited or not, or the 
contributions of the partners be equal or unequal. Cowp. 814. The game 
appellation is given to a partnership where the parties are engaged in one 
branch of trade only. 
     5.-3. Special partnerships, are those formed for a special or 
particular branch of business, as contradistinguished from the general 
business or employment of the parties, or of one of them. When they extend 
to a single transaction or adventure only, such as the purchase and sale of 
a particular parcel of goods, they are more commonly called limited 
partnerships. The appellation is however given to both classes of cases 
indiscriminately. Story, Partn. Sec. 75 
     6.-Sec. 2. When considered in relation to the number and character of 
the parties, partnerships are divided into private partnerships and public 
companies. 1. Private partnerships are those which consist of two or more 
partners for some private undertaking, trade, or business. 
     7.-Sec. 2. Public companies are those where a greater number of 
persons are concerned, and the stock is divided into a considerable number 
of shares, the object embracing generally public as well as private 
interests. This term is, however, perhaps loosely applied, as these 
companies have for the most part the character of private associations. They 
are either incorporated or not. The incorporated are to be governed by the 
rules established in their respective charters. See Corporation. The 
unincorporated are in general subject, to all the regulations of a common 
private partnership. 
     8.-Sec. 3. In the French law, partnerships are divided into three 
kinds, namely: 1. Partnerships under a collective name, that is, where the 
name of the firm contains the names of all or some of the partners. 
     9.-2. Partnerships en commandite or in commendam; these are limited 
partnerships, where one or more persons are general partners, and are 
jointly and severally responsible with all their estates, and one or, more 
other persons who furnish a part or the whole of the capital, who are liable 
only to the extent of the capital they have furnished. The business is 
carried on in, the name of the general partners. This species of 
partnership, with some modifications, has been adopted in several of the 
states of the American union. 3 Kent, Com. 34, 4th ed.; 2 Bouv. Inst. n. 
1473, et seq. 
    10.-3. Anonymous partnerships are those in which all the partners are 
engaged in the business, there is no social name or firm, but a name 
designating the object of the association. The business is managed by 
syndics or directors. Vide Poth. de Societe, h.t.; 5, Duv. Dr. Civ., Fr. 
h.t.; Pardes. Dr: Com. h.t.; Code de Com. h.t.; Merl. Repert. h.t. In 
Louisiana a similar division has been made. Civ. Code of Lo. h.t. 
    11.-Sec. 4. Partnerships are created by mere act of the parties; and 
in this they differ from, corporations which require the sanction of public 
authority, either express or implied. Aug. & Ames on Corp. 23. The consent 
of the parties may be testified, either in express terms, as by articles of 
partnership, or positive agreement; or the assent may be tacit, and to be 
implied solely from the act of the parties. An implied or presumptive assent 
has equal operation with one that is express and determined. And it may be 
laid down as a general and undeniable proposition, that persons having a 
mutual interest in the profits and loss of any business, or particular 
branch of business, carried on by them, or persons appearing ostensibly to 
the world as joint traders, are to be recognized and treated as partners, 
whatever may be the nature of the agreement under which they act, or 
whatever motive or inducement may prompt them to such an exhibition. 1 Dall. 
269. 
    12. A community of property does not of itself create a partnership, 
however that property may be acquired, whether by purchase, donation, 
accession, inheritance or prescription. Civ. Code of Louis. art. 2777. Hence 
joint tenants or tenants in common of lands, goods, or chattels, under 
devises or bequests in last wills or testaments, and deeds or donations 
inter vivos, and inheritances or successions, are not partners. Story, 
Partn. Sec. 3. 
    13. Joint owners of ships are not, in consequence of such ownership, to 
be considered as partners. Abbot on Ship. 68; 3. Kent, Com. 25, 4th ed.; 15 
Wend. 187; and see Poth. De Societe, n. 2; 4 Pard. Dr. Com. n. 969; 17 Dur. 
Dr. Fr. n. 320; 5 Duv. Dr. Civ. Fr. n. 33. 
    14.-The free and personal choice of the contracting parties is so 
essentially necessary to the constituting of a partnership, that even 
executors and representatives of deceased partners do not, in their 
representative capacity, succeed to the state and condition of partners; 2 
Ves. sen. 34; Wats. on Partn. 6; although a community of interest 
necessarily exists between them and the surviving partners, until the 
affairs of the partnership are wound up. 11 Ves. 3. When there is a positive 
agreement at the commencement of the partnership, that the personal 
representative or heir of a partner shall succeed him in the partnership, 
the obligation will be considered valid. Coll. on part. B. 1; ch. 1, Sec. 
11; Story, Partn. Sec. 5. 
    15.-Sec. 5. The object of the partnership must be legal. All 
partnerships, therefore, which are formed for any purpose forbidden by law 
or good morals, are null and void. But all the partners in such a 
partnership  are jointly liable to third persons who may contract with them 
without a knowledge of the illegal or immoral object of the partnership. 
Civ. Code of Lo. art. 2775; 5 B. & A. 341 2 B. & P. 371; 3 T. R. 454; Poth. 
Oblig. by Evans, vol. 2, page 3; Gow on Partn. 8; Wats. Partn. 131. 
Partnerships are not confined to mere commercial trade or business; but 
generally extend to, manufactures and, to all other lawful occupations and 
employments, or to professional or other business. They may extend to all 
the business of the parties; to a single branch of such business; to a 
single adventure; or to a single thing. But there cannot lawfully be a 
partnership in a mere, personal office, especially when it is of a public 
nature, requiring the personal confidence in the skill and integrity of the 
officer. Story, Partn. Sec. 81; Colly. Partn. 31. 
    16.-Sec. 6. Partnerships may be formed to last for life, or for a 
specific period of time; they may be conditional or indefinite in their 
duration, or for a single adventure or dealing; this depends altogether on 
the will of the parties. The period of duration is either expressed or 
implied, but the law will not presume that it shall last beyond life. 1 
Swanst. 521; 1 J. Wils. R., 181. When a particular term is fixed, it is 
presumed to endure until the period has elapsed; when no term is fixed, it 
is presumed to endure for the life of the parties, unless previously 
dissolved, by the acts of one of them, by mutual consent, or by operation of 
law. Story, Partn. Sec. 84. When no time is limited for the duration of a 
general trading partnership, it is a partnership at will, and may be 
dissolved at any time at the pleasure of any one or more of the partners. 
    17.-Sec. 7. A partnership may be dissolved in several ways: when the 
partnership is formed for a single dealing or transaction, it follows that 
it is at an end so soon as the dealing or transaction in which the partners 
jointly engaged is completed. Gow on Partn. 268; Inst. Lib. 3, tit., 26, s. 
6. 
    18. Where a general partnership is formed, either for a definite, or an 
indefinite period of time, the causes which may operate a destruction of it, 
are various. In the case of a partnership limited as to its duration, it 
may, in the intermediate time, before the restricted period of its 
termination arrives, be dissolved either by the death, the confirmed 
insanity, the bankruptcy of all or one of the partners, or it may endure the 
stipulated period, and expire with the effluxion of time; but where the 
partnership is unlimited as to its existence, although in the instances of 
death or bankruptcy, it is determined, yet if they do not intervene, any 
partner may withdraw himself from it whenever he thinks proper. Code, lib. 
4, t. 37, 1, 5. 
    19. Besides the causes above stated for a dissolution, a partnership, 
limited or unlimited as to its duration, may be dissolved by the decree of a 
court of equity, where the conduct of some or all of the partners has been 
such as not to carry on the trade or undertaking on the terms stipulated; 
Gow on Partn. 269; or by the involuntary or compulsory, sale or transfer of 
the partnership interest of any one of the partners. 17 John. R. 525. 
    20. In New York, it has been held that there is no such thing as an 
indissoluble partnership, and that, therefore, any partner may withdraw at 
any time; and by that act the partnership will be solved; the other party 
having his action against the withdrawing partner upon his covenant to 
continue the partnership; 19 Johns. R. 538. This doctrine is not in 
accordance with the English law. Indeed it is even doubtful in New York. 
Story, Eq. Jur. Sec. 668; Story, Partn. Sec. 275; 3 Kent Com. 61, 4th ed.; 1 
Hoffm. Ch. R. 534. See Gow on Partn. 803, 305, and 4 Wash. C. C. R. 232. 
    21. It may also be dissolved by the extinction of the thing or object of 
the partnership; or by the agreement of the parties. See Civ. Code of Louis. 
art. 2847 Code Civ. B. 3, fit. 9, c 4 art. 1865 to 1872; 2 Bell's Com. 631 
to 6414, 6th ed. See Dissolution. 
    22. The effect of the dissolution of the partnership is to disable any 
one of the partners from contracting new obligations or engagements on 
account of the firm. 1 Pet., R. 351; 3 McCord, 378; 4 Munf. 215; 2 John., 
300; 5 Mason, 56; Harper, R. 470; 4 John. 224; 1 McCord, 338; 6 Cowen, 701. 
But notwithstanding the dissolution there remain, with each of the partners, 
certain powers, rights, duties, authorities, and relations between them, 
which are indispensable to the complete arrangement and final settlement of 
the affairs of the firm. The partnership must, therefore, subsist for many 
purposes, notwithstanding the dissolution. Among these are, 1st. The 
completion of an the unperformed engagements of the partnership. 2d. The 
conversion of all the property, means and assets of the partnership, 
existing at the time of the dissolution, for the benefit of those who, were 
partners, according to their respective shares. 3d. The application of the 
partnership funds, to, the liquidation of the partnership debts. Story, 
Partn. Sec. 324. 
    23.-Sec. 3. By the laws of Louisiana, partnerships are divided, as to 
their object, into commercial partnerships and ordinary partnerships 
Commercial partnerships are such as are formed, 1. For the purchase of any 
personal property, and the sale thereof, either in the same state or changed 
by manufacture. 2. For buying and selling any personal property whatsoever, 
as factors or brokers. 3. For carrying personal property for hire, in ships 
or other vessels. Civ. Code of Lo. art., 2796. 
    24. Ordinary partnerships are, such as are not commercial; they are 
divided into universal or particular partnerships. Id. art. 2797. 
    25. Universal partnership is a contract by which the parties agree to 
make a common stock of all the property they respectively possess; they may 
extend it to all the property real and personal, or restrict it to personal 
only; they may, as, in other partnerships, agree that the property itself 
shall be common stock, or that the fruits only shall be such; but property 
which may accrue to one of the parties, after entering into the partnership, 
by donation, succession, or legacy, does not become common stock, and any 
stipulation to that effect, previous to the obtaining the property 
aforesaid, is void. Code Civ. of Lo.art. 2800. 
    26. Particular partnerships are such as are formed for any business not 
of a commercial nature. Id. art. 2806. The business of this partnership must 
be conducted in the name of all the persons concerned, unless a firm is 
adopted by the articles of partnership reduced to writing, and recorded as 
is prescribed with respect to partnerships in commendam. Id. art 2808. 
    27. There is also a species of partnership which may be incorporated 
with either of the other kinds, called partnership in commendam, or limited 
partnership. Id. art. 799. Partnership in commendam is formed by a contract, 
by which one person or partnership agrees to furnish another person or 
partnership a certain amount, either in property or money, to be employed by 
the person or partnership whom it is furnished, in his or their own name or 
firm, on condition of receiving a share in the profits, in the proportion 
determined by the contract, and of being liable to losses and expenses to 
the amount furnished, and no more. Id. art. 2810. 
    28. Every species of partnership may receive such partners. It is 
therefore a modification of which the several kinds of partnerships are 
susceptible, rather than a separate division of partnerships. Vide Bouv. 
Inst. Index, h.t.: Firm. 

PARTOWNERS. Persons who hold real or personal property by the same title, 
either as tenants in common, joint tenants, or coparceners. They are 
sometimes called quasi partners and differ from partners in this, that they 
are either joint owners, or tenants in common, each having an independent, 
although an undivided interest in the property; neither can transfer or 
dispose of the whole property, nor act for the others in relation to it, but 
merely for his own share, and to the extent of his own several right and 
interest. 
     2. In joint tenancy of goods or chattels, it is true, the joint tenants 
are seized per my et per tout; but still each one has an independent, and to 
a certain extent a distinct right during his lifetime, which he can dispose 
of and sever the tenancy. 
     3. Tenants in common hold undivided portions of the property by several 
titles, or in several rights, although by one title. Their possession, 
however, they hold in common and undivided. Whereas, in partnerships, the 
partners are joint owners of the property, and each has a right to sell or 
dispose of the whole, unless otherwise provided for in the articles of 
partnership. Colly. Partn. 86; Wats. Partn. 66; Story, Partn. Sec. 91. 
     4. At common law, each of the owners of a chattel has an equal title 
and right to possess and use it; and in the case of common chattels the law 
has generally left this right to the free discretion of the several owners 
but in regard to ships, the common law has adopted and followed' out the 
doctrine of the courts of admiralty. It authorizes the majority in value and 
interest to employ the ship upon any probable design. This is done, not 
without guarding the rights, of the minority. When the majority desire to 
employ a ship upon any particular voyage or adventure, they have a right to 
do so, upon giving security by stipulation to the minority, if required, to 
bring back and restore the ship to them, or in case of her loss, to pay them 
the value of their shares. Abbott, Ship. 70; 3 Kent Com. 151, 4th ed.; 2 
Bro. Civ. Law, 131; Molloy, B. 2, c. 1, Sec. 3; 2 Pet. Adm. R. 288; Story, 
Partn. 428 11 Pet. R. 175. When the majority do not choose to employ the 
ship, the minority have the same right, upon giving similar security. 11 
Pet. R. 175; 1 Hagg. Adm. R. 306; Jacobi: Sea Laws, 442. 
     5. When part owners are equally divided as to the employment, upon any 
particular voyage, the courts of admiralty have manifested a disposition to 
support the right of the court to order a sale of the ship. Story Partn. 
Sec. 439; Bee's Adm. R. 2; Gilpin, R. 10; 18 Am. Jur. 486. 

PARTURITION. The act of giving birth to a child.
     2. Sometimes questions arise how far means may be employed to promote 
parturition, which cause, or are likely to cause others in relation to it, 
but merely for his own share, and to the extent of his own several right and 
interest. 
     3. In joint tenancy of goods or chattels, it is true the joint tenants 
are [?] per my et per toitt, but still each one has an independent, and to a 
certain extent a distinct right during his lifetime, which he can dispose of 
and sever the tenancy. 
     3. Tenants in common hold undivided portions of the, property by 
several titles, or in several rights, although by one title. Their 
possession, however, they hold in common and undivided. Whereas, in 
partnerships, the partners are joint owners of the property, and each has a 
right to sell or dispose of the whole, unless otherwise provided for in the 
articles of partnership. Colly. Partn. 86; Wats. Partn. 66; Story Partn. 
Sec. 91. 
     4. At common law, etch of the owners of a chattel has an equal title 
and right to possess and use it; and in the case of common chattels the law 
has generally, left this right to the free discretion of the several owners, 
but in regard to ships, the common law has adopted and followed out the 
doctrine of the courts of admiralty. It authorizes the majority in value and 
interest to employ the ship upon any probable design. This is done, not 
without guarding the rights, of the minority: When the majority desire to 
employ a ship upon any particular voyage or adventure, they have a right to 
do so, upon giving security by stipulation to the minority, if required, to 
bring back and restore the ship to them, or in case of her loss, to pay them 
the value of their shares. Abbott, Ship. 70; 3 Kent, Com. 151, 4th ed.; 2 
Bro. Civ. Law, 131; Molloy, B. 2, c. 1, Sec. 3; 2 Pet. Adm. R. 288, Story, 
Partn. 428; 11 Pet. R. 175. When the majority do not choose to employ the 
ship, the minority have, the same right, upon 'vi" similar security. 11 Pet. 
R. 175; I Hagg. Ad. R. 306; Jacobi. Sea Laws, 442. 
    6. When part owners are equally divided as to the employment, upon any 
particular voyage, the courts of admiralty, have manifested a disposition to 
support the right of the court to order a sale of the ship. Story, Partn. 
Sec. 439; Bee's Adm. R. 12 i Gilpin, R. 10; 18 Am. Jur. 486. 

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

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

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

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

PARTY WALL. A wall erected on the line between two adjoining estates, 
belonging to different persons, for the use of both estates. 2 Bouv. Inst. 
n. 1615. 
     2. Party walls are generally regulated by acts of the local 
legislatures. The principles of these acts generally are, that the wall 
shall be built equally on the lands of the adjoining owners, at their joint 
expense, but when only one owner wishes to use such wall, it is built at his 
expense, and when the other wishes to make use of it, he pays one half of 
its value; each owner has a right to place his joists in it, and use it for 
the support of his roof. When the party wall has been built, and the 
adjoining owner is desirous of having a deeper foundation, he has a right to 
undermine such wall, using due care and diligence to prevent any injury to 
his neighbor, and having done so, he is not answerable for any consequential 
damages which may ensue. 17 John. R. 92; 12 Mass. 220; 2 N. H. Rep. 534. 
Vide 1 Dall. 346; 5 S. & R. 1. 
     3. When such wall exists between two buildings, belonging to different 
persons, and one of them takes it down with his buildings, he is required to 
erect another in its place in a reasonable time, and with the least 
inconvenience; the other owner must contribute to the expense, if the wall 
required repairs, but such expense will be limited to the costs of the old 
wall. 3 Kent, Com. 436. When the wall is taken down, it must be done with 
care; but it is not the duty of the person taking it down to shore up or 
prop the.,house of his neighbor, to prevent it from falling; if, however, 
the work be done with negligence, by which injury accrues to the neighboring 
house, an action will lie. 1 Moody & M. 362. Vide 4 C. & P. 161; 9 B. & C. 
725; 12 Mass. R. 220; 4 Paige's R. 169; 1 C. & J. 20; 1 Pick. 434; 12 Mass. 
220; 2 Roll., Ab. 564; 3 B. & Ad. 874; 2 Ad. & Ell. 493 Crabb on R. P. Sec. 
500. In the excellent treatise of M. Lepage, entitled "Lois des Batimens," 
part 1, c. 3, s. 2, art. l, will be found a very minute examination of the 
subject of party walls, with many cases well calculated to illustrate our 
law. See also Poth. Contr. de Societe, prem. app. n. 207; 2 Hill.: Ab. 119; 
Toull. liv. 2, t. 2, c. 3. 

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

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

TO PASS. To accomplish, to complete, to decide.
     2. The title to goods passes by the sale whenever the parties have 
agreed upon the sale and the price, and nothing remains to be done to 
complete the agreement. 1 Bouv. Inst. n. 939. 
     3. When a jury decide upon the rights of the parties, which are in 
issue, they are said to pass upon them. 

PASS BOOK, com. law. A book used by merchants with their customers, in which 
an entry of goods sold and delivered to a customer is made. 
     2. It is kept by the buyer, and sent to the merchant whenever he wishes 
to purchase any. article. It ought to be a counterpart of the merchant's 
books, as far as regards the customer's account. 
     3. Among English bankers, the term pass book is given to a small book 
made up from time to time, from the banker's ledger, and forwarded to the 
customer; this is not considered as a statement of account between the 
parties, yet when the customer neglects for a long time to make any 
objection to the correctness of the entries he will be bound by them. 2 Atk. 
252; 2 Deac. & Ch. 534; 2 M. & W. 2. 

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

PASSAGE MONEY, contracts. The sum claimable for the conveyance of a person 
with or without luggage on the water. 
     2. The difference between freight and passage money is this, that the 
former is claimable for the carriage of goods, and the latter for the 
carriage of the person. The same rules which govern the claim for freight 
affect that for passage money. 3 Chit. Com. Law, 424; 1 Pet. Adm. Dee. 126; 
3 John. 335. 

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

PASSPORT, SEA BRIEF, or SEA LETTER, maritime law. A paper containing a 
permission from the neutral state to the captain or master of a ship or 
vessel to proceed on the voyage proposed; it usually contains his name and 
residence; the name, property, description, tonnage and destination of the 
ship; the nature and quantity of the cargo; the place from whence it comes, 
and its destination; with such other matters as the practice of the place 
requires. 
     2. This document is indispensably necessary in time of war for the 
safety of every neutral vessel. Marsh. Ins. B. 1, c. 9, s. 6, p. 406, b. 
     3. In most countries of continental Europe passports are given to 
travellers; these are intended to protect them on their journey from all 
molestation, while they are obedient to the laws. Passports are also granted 
by the secretary of state to persons travelling abroad, certifying that they 
are citizens of the United States. 9 Pet. 692. Vide 1 Kent, Com. 162, 182; 
Merl. Repert. h.t. 

PASSENGER, cont. One who has taken a place. in a public conveyance, for the 
purpose of being transported from one place to another. 
     2. By act of Feb. 22, 1847, Minot's Statutes at Large of United States, 
p. 127, it is provided as follows: That if the master of any vessel owned in 
whole or in part by a citizen of the United States of America, or by a 
citizen of any foreign country, shall take on board, such vessel, at any 
foreign port or place, a greater number of passengers than in the following 
proportion, to the space occupied by them and appropriated for their use, 
and unoccupied by stores, or other goods, not being the personal luggage of 
such passengers, that is to say, on the lower deck or platform one passenger 
for every fourteen clear superficial feet of deck, if such vessel is not to 
pass within the tropics during such voyage; but if such vessel is to pass 
within the tropics during such voyage, then one passenger, for every twenty 
such clear superficial feet of deck, and on the poop deck (if any) one 
passenger for every thirty such superficial feet in all cases, with intent 
to bring such passengers to the United States of America, and shall leave 
such port or place with the same or any other number thereof, within the 
jurisdiction of the United States aforesaid, or if any such master of vessel 
shall take on board of his vessel, at any port or place within the 
jurisdiction of the United States aforesaid, any greater number of 
passengers than the proportions aforesaid admit, with intent to carry the 
same to any foreign port or place, every such master shall be deemed guilty 
of a misdemeanor, and, upon conviction thereof before any circuit or 
district court of the United States aforesaid, shall, for each passenger 
taken on board beyond the above proportions, be fined in the sum of fifty 
dollars, and may also be imprisoned for any term not exceeding one year: 
Provided, That this act shall not be construed to permit any ship or vessel 
to carry more than two passengers to five tons of such ship or vessel. 
     3.-Sec. 2. That if the passengers so taken on board of such vessel, 
and brought into or transported from the United States aforesaid, shall 
exceed the number limited by the last section to the number of twenty in the 
whole, such vessel shall be forfeited to the United States aforesaid, and be 
prosecuted and distributed as forfeitures are under the act to regulate 
duties on imports and tonnage. 
     4.-Sec. 3. That if any such vessel as aforesaid shall have more than 
two tiers of berths, or in case, in such vessel, the interval between the 
floor and the deck or platform beneath shall not be at least six inches, and 
the berths well constructed, or in case the dimensions of such berths shall 
not be at least six feet in length, and at least eighteen inches in width, 
for each passenger as aforesaid, then the master of said vessel, and the 
owners thereof, severally, shall forfeit and pay the sum of five dollars for 
each and every passenger on board of said vessel on such voyage, to be 
recovered by the United States aforesaid, in any circuit or district court 
of the. United States where such vessel may arrive, or from which she sails. 
     5.-Sec. 4. That, for the purposes of this act, it shall in all cases 
be computed that two children, each being under the age of eight years, 
shall be equal to one passenger, and that children under the age of one year 
shall not be included in the computation of the number of passengers. 
     6.-Sec. 5. That the amount of the several penalties imposed by this 
act shall be liens on the vessel or vessels violating its provisions; and 
such vessel may be libelled and sold therefor in the district court of the 
United States aforesaid in which such vessel shall arrive. 
     9. By act of March 2, 1847, Minot's Statutes at Large of United States, 
p. 149, it is enacted, That so much of said act as authorizes shippers to 
estimate two children of eight years of age and under as one passenger, in 
the assignment of room, is hereby repealed. 
    10. The act of May 17, 1848, Minot's Statute at Large of United States, 
p. 220, further provides, That all vessels, whether of the United States or 
any other country, having sufficient capacity according to law for fifty or 
more passengers, (other than cabin passengers,) shall, when employed in 
transporting such passengers between the United States and Europe, have on 
the upper deck, for the use of such passengers, a house over the passageway 
leading to the apartment allotted to such passengers below deck, firmly 
secured to the deck, or combings, of the hatch, with two doors, the sills of 
which shall be at least one foot above the deck, so constructed that one 
door or window in such house may, at all times, be left open for 
ventilation; and all vessels so employed, and having the capacity to carry 
one hundred and fifty such passengers, or more, shall have two such houses; 
and the stairs or ladder leading down to the aforesaid apartment shall be 
furnished with a handrail of wood or strong rope: Provided, nevertheless, 
Booby hatches may, be substituted for such houses in vessels having three 
permanent decks. 
    11.-Sec. 2. That every such vessel so employed, and having the legal 
capacity for more than one hundred such passengers, shall have at least two 
ventilators to purify the apartment or apartments occupied by such 
passengers; one of which shall be inserted in the after part of the 
apartment or apartments, and the other shall be placed in the forward 
portion of the apartment or apartments, and one of them shall have an 
exhausting cap to carry off the foul air, and the other a receiving cap to 
carry down the fresh air which said ventilators shall have a capacity 
proportioned to the size of the apartment or apartments to be purified; 
namely, if the apartment or apartments will lawfully authorize the reception 
of two hundred such passengers, the capacity of such ventilators shall each 
of them be equal to a tube of twelve inches diameter in the clear, and in 
proportion for larger or smaller apartments; and all said ventilators shall 
rise at least four feet six inches above the upper deck of any such vessel, 
and be of the most approved form and construction: Provided, That if it 
shall appear from the report to be made and approved., as provided in the 
seventh section of this act that such vessel is equally well ventilated by 
any other means, such other means of ventilation shall be deemed, and held 
to be, a compliance with the provisions of this section. 
    12.-Sec. 3. That every vessel carrying more than fifty such passengers 
shall have for their use on deck, housed and conveniently arranged, at least 
one camboose or cooking range, the dimensions of which shall be equal to 
four feet long and one foot six inches wide for every two hundred 
passengers; and provisions shall be made, in the manner aforesaid in this 
ratio for a greater or less number of passengers: Provided, however, that 
nothing herein contained shall take away the right to make such arrangements 
for cooking between decks, if that shall be deemed desirable. 
    13.-Sec. 4. That all vessels employed as aforesaid shall have on 
board, for the use of such passengers, at the time of leaving the last port 
whence such vessel shall sail, well secured under deck, for each passenger, 
at least fifteen pounds of good navy bread, ten pounds of rice, ten pounds 
of oatmeal, ten pounds of wheat flour, ten pounds of peas and beans, thirty-
five pounds of potatoes, one pint of vinegar, sixty gallons of fresh water, 
ten pounds of salted pork, free of bone, all to be of good quality, and a 
sufficient supply of fuel for cooking; but at places where either rice, 
oatmeal, wheat flour or peas and beans cannot be procured, of good quality 
and on reasonable terms, the quantity of either or any of the other last-
named articles may be increased and substituted therefor; and in case 
potatoes cannot be procured on reasonable terms, one pound of either of said 
articles maybe substituted in lieu of five pounds of potatoes; and the 
captains of such vessels, shall deliver to each passenger at least one-tenth 
part, of the aforesaid provisions weekly, commencing on the day of sailing, 
and daily at least three quarts of water, and sufficient fuel for cooking; 
and if the passengers on board of any such vessel in which the provisions, 
fuel and water herein required shall not have been provided as aforesaid, 
shall at any time be put on short allowance during, any voyage, the master 
or owner of any such vessel shall pay to each and every passenger who shall 
have been put on short allowance the sum of three dollars for each and every 
day they may have been on such short allowance, to be recovered in the 
circuit or district court of the United States; Provided, nevertheless, and 
nothing herein contained shall prevent any passenger, with the consent of 
the captain, from furnishing for himself the articles of food herein 
specified; and, if, put on board in good order, it shall fully satisfy the 
provisions of this act so far as regards food, and provided further, That 
any passenger may also, with the consent of the captain, furnish for himself 
an equivalent for the articles of food required in other and different 
articles: and if, without waste or neglect on the part of the passenger, or 
inevitable accident, they prove insufficient, and the captain shall furnish 
comfortable food to such passengers during the residue of the voyage, this, 
in regard to food, shall also be a compliance with the terms of this act. 
    14.-Sec. 5. That the captain of any such vessel so employed is hereby 
authorized to maintain good discipline, and such habits of cleanliness among 
such passengers, as will tend to the preservation and promotion of health,; 
and to that end, he shall cause such regulations as he may adopt for this 
purpose to be posted up, before sailing, on board such vessel, in a place 
accessible to such passengers, and stall keep the same so posted up during 
the voyage; and it is hereby made the duty of said captain to cause the 
apartment occupied by such passengers to be kept, at all times, in a clean 
healthy state, and the owners of every such vessel so employed are required 
to construct the decks, and all parts of said apartment, so that it can be 
thoroughly cleansed; and they shall also provide a safe, convenient privy or 
water closet for the exclusive use of every one hundred such passengers. And 
when the weather is such that said passengers cannot be mustered on deck 
with their bedding, it shall be the duty of the captain of every such vessel 
to cause the deck occupied by such passengers to be cleaned [cleansed] with 
chloride of lime, or some other equally efficient disinfecting agent, and 
also at such other times as said captain may deem necessary. 
    15.-Sec. 6 That the master and owner or owners of any such vessel so 
employed, which shall not be provided with the house or houses over the 
passageways, as prescribed in the first section of this act; or with 
ventilators, as proscribed in the second section of this act; or with the 
cambooses or cooking ranges, with the houses over them, as prescribed in the 
third section of this act; shall severally forfeit and pay to the United 
States the sum of two hundred dollars for each and every violation of, or 
neglect to conform to, the provisions of each of said sections; and fifty 
dollars for each and every neglect or violation of any of the provisions of 
the fifth section of this act; to be recovered by suit in any circuit or 
district court of the United States, within the jurisdiction of which the 
said vessel may arrive, or from. which it may be about to depart, or at any 
place within the jurisdiction of such courts, wherever the owner or owners, 
or captain of such vessel, may be found. 
    16.-Sec. 7. That the collector of the customs, at any port in the 
United States at which any vessel so employed shall arrive, or from which 
any such vessel shall be about to depart, shall appoint and direct one of 
the inspectors of the customs for such port to examine such vessel, and 
report in writing to such collector whether the provisions of the first, 
second, third and fifth sections of this act have been complied with in 
respect to such vessel; and if such report shall state such compliance, and 
be approved by such collector, it shall be deemed and held as conclusive 
evidence thereof. 
    17.-Sec. 8. That the first section of the act entitled, "An act to 
regulate the carrying of passengers in merchant vessels," approved February 
twenty-second, eighteen hundred and forty-seven, be so amended that, when 
the height or distance between the decks of the vessels referred to in the 
said section shall be less than six feet, and not less than five feet, there 
shall be allowed to each passenger sixteen clear superficial feet on the 
deck, instead of fourteen, as prescribed in said section; and if the height 
or distance between the decks shall be less than five feet, there shall be 
allowed to each passenger twenty-two clear superficial feet on the deck; and 
if the master of any such vessel shall take on board his vessel, in any port 
of the United States, a greater number of passengers than is allowed by this 
section, with the intent specified in said first section of the act of 
eighteen hundred and forty-seven, or if the master of any such vessel shall 
take on board at a foreign port, and bring within the jurisdiction of the 
United, States, a greater number of passengers than is allowed by this 
section, said master shall be deemed guilty of a misdemeanor, and upon 
conviction thereof shall be punished in the manner provided for the 
punishment of persons convicted of a violation of the act aforesaid; and in 
computing the number of passengers on board such vessels, all children under 
the age of one year, at the time of embarkation, shall be excluded from such 
computation. 
    18.-Sec. 9. That this act shall take effect, in respect to such 
vessels sailing from ports in the United States, in thirty days from the 
time of its approval; and in respect to every such vessel sailing from ports 
in Europe, in sixty days after such approval; and it is hereby made the duty 
of the secretary of state to give notice, in the ports of Europe, of this 
act, in such manner as he may deem proper. 
    19.-Sec. 10. That so much of the first section of the act entitled "An 
act regulating passenger ships and vessels," approved March second, eighteen 
hundred and nineteen, or any other act that limits the number of passengers. 
to two for every five tons, is hereby repealed. 
    20. By act of March 3, 1849, Minot's Statutes at Large of United States, 
p. 399, it is enacted, That all vessels bound from any port in the United 
States to any port or place in the Pacific Ocean, or on its tributaries, or 
from any such port or place to any port in the, United States on the 
Atlantic, or its tributaries, shall be subject to the provisions of all the 
laws now in force relating to the carriage of passengers in merchant 
vessels, sailing to and from foreign countries, and the regulation thereof; 
except the fourth section of the "Act to provide for the ventilation of 
passenger vessels, and for other purposes," approved May seventeenth, 
eighteen hundred and forty-eight, relating to provisions, water, and fuel; 
but the owners and masters of all such vessels shall in all cases furnish to 
each passenger the daily supply of water therein mentioned, and they shall 
furnish for themselves, a sufficient supply of, good and wholesome food; and 
in case they shall fail so to do, or shall provide unwholesome or unsuitable 
provisions, they shall be subject to the penalty provided in said fourth 
section in case the passengers are put on short allowance of water or 
provisions. 
    21.-Sec. 2. That the act, entitled "An act to regulate the carriage of 
passengers in merchant vessels," approved February twenty-second, eighteen 
hundred and forty-seven, shall be so amended as that a vessel passing into 
or through the tropics shall be allowed to carry the same number of 
passengers as vessels that do not enter the tropics, 
    22. By act of January 31, 1848, Minot's Statutes at Large of United 
States, p. 210, it is enacted, That, from and after the passage of this act, 
all and every vessel and vessels which shall or may be employed by the 
American Colonization Society, or by the Maryland State Colonization 
Society, to transport, and which shall actually transport, from any port or 
ports in the United States to any colony or colonies on the west coast of 
Africa, colored emigrants to reside there, shall be, and the same are 
hereby, excepted out of and exempted from the operation of the act entitled 
"An act to regulate the carriage of passengers in merchant vessels," passed 
twenty-second February, eighteen hundred and forty-seven; and of the act. 
entitled "An act to amend an act entitled 'An act to regulate the carriage 
of passengers in merchant vessels, and to determine the time,' when said act 
shall take effect,"' passed, second March, eighteen hundred and forty-seven. 
    23. No deduction is to be made, in estimating, the number of passengers 
in a vessel, for children or persons not paying. Gilp. R. 334. For his 
rights and duties, vide Common Carriers. 

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

PATENT, construction. That which is open or manifest.
     2. This word is usually applied to ambiguities which are said to be 
latent, or patent. 
     3. A patent ambiguity is one which is produced by the uncertainty, 
contradictoriness or deficiency of the language of an instrument, so that no 
discovery of facts or proof of declaration can restore the doubtful or 
smothered sense without adding ideas which the actual words will not of 
themselves sustain. Bac. Max. 99 T. Raym. R. 411; Roberts on Fr. 15. 
     4. A latent ambiguity may be explained by parol evidence, but the rule 
is, different with regard to a patent ambiguity, which cannot be explained 
by parol proof. The following instance has been proposed by the court as a 
patent ambiguity: "If A B, by deed, give goods to one of the sons of J S, 
who has several sons, he shall not aver which was intended; for by judgment 
of law upon this deed, the gift is void for uncertainty, which cannot be 
supplied by averment." 8 Co. 155 a. And no difference exists between a deed 
and a will upon this subject. 2 Atk. 239. 
     5. This rule, which allows an explanation of latent ambiguities, and 
which forbids the use of parol evidence to explain a patent ambiguity, is 
difficult of application. It is attended, in some instances, with very 
minute nicety of discrimination, and becomes a little unsteady in its 
application. When a bequest is made "to Jones, son of, Jones," or "to Mrs. 
B," it is not easy to show that the ambiguity which this imperfect 
designation creates, is not ambiguity arising upon the face of the will, and 
as such, an ambiguity patent, yet parol evidence is admitted to ascertain 
the persons intended by those ambiguous terms. 
     6. The principle upon which parol testimony is admitted in these cases, 
is probably, in the first of them, a presumption of possible ignorance in 
the testator of the christian name of the legatee; and in the second, a 
similar presumption of his being in the habit of calling the person by the 
name of Mrs. B. Presumptions, which being raised upon the face of the will, 
may be confirmed and explained by extrinsic evidence. Rob' on. Fr. 15, 27; 2 
Vern. 624, 5; 1 Vern. by Raithby, 31, note 2; 1 Rop. Leg. 147; 3 Stark. Ev. 
1000; 3 Bro. C. C. 311 2 Atk. 239; 3 Atk. 257; 3 Ves. Jr. 547. Vide articles 
Ambiguity; Latent. 

PATENT, contracts. A patent for an invention is a giant made by the 
government of the United States to the inventor of any new or useful art, 
machine, manufacture or composition of matter, or any new and useful 
improvement in any art, machine, manufacture or composition of matter not 
known or used by others before his or their discovery or invention thereof, 
and not, at the time of his application for a patent, in public use or on 
sale, with his consent or allowance, as the inventor or discoverer; securing 
to him for a limited time, therein expressed, the full and exclusive right 
and liberty of making, constructing, using, and vending to others to be 
used, the said invention or discovery, on certain conditions, among which is 
the one of at once giving up his secret and making public his discovery or 
invention, and the manner of making and using the same, so that at the 
expiration of his privilege, it may become public property. The instrument 
securing this grant is also called a patent. The subject will be considered 
by taking a succinct view of, 1. The legislation of the United States on the 
subject. 2. The patentee. 3. The subject to be patented. 4. The caveat and 
preliminary proceedings. 5. The proceedings to obtain a patent. 6. The 
patent. 7. The duty or tax on patents. 8. Courts having jurisdiction in 
patent cases. 9. Actions for violations of patents. Sec. 1. Legislation of 
the United States. 
     2. The constitution of the United States authorizes congress to pass 
laws "to, promote the progress of science and the useful arts, by securing, 
for limited times, to authors and inventors, the exclusive right of their 
respective writings and discoveries." Art. 1, s. 8, n. 8. By virtue of this 
authority congress can grant patents to inventors, and it rests in the 
sound, discretion of the legislature to say when, and for what length of 
time, and under what circumstances the patent for an invention shall be 
granted. Congress may, therefore, grant a patent which shall operate 
retrospectively by securing to the inventor the use of his invention, though 
it was in public use and enjoyed by the community at the time this act was 
passed. 3 Sumn. 535; 2 Story, R. 164. The first act passed under this power 
is that which established the patent office on the 10th of April, 1790, 1 
Story, L. U. S. 80. There were several supplements and modifications to this 
first law, namely, the acts passed February 7, 1793, Idem, 300; June 7, 
1794, Idem, 363; April 17, 1800, Idem, 753; July 3,1832, 4 Sharsw. cont. of 
Story, L. U.S. 2300; July 13, 1832, Idem, 2313. 
     3. These acts were repealed by the act of July 4, 1836, 4 Sharsw. cont. 
Story, L. U. S. 2504, which. enacts: 
     Sec. 21. That all acts and parts of acts theretofore passed on this 
subject be, and the same are hereby repealed: Provided, however, That all 
actions and processes, in law or equity sued out prior to the passage of 
this act, may be prosecuted to final judgment and execution, in the same 
manner as though this act had not been passed, excepting and saving the 
application to any such action, of the provisions of the fourteenth and 
fifteenth sections of this act, so far as they maybe applicable thereto. And 
provided, also, That all applications and petitions for patents, pending at 
the time of the passage of this act, in cases where the duty has been paid, 
shall be proceeded with and acted on in the same manner as though filed 
after the passage thereof. 
     4. The existing laws on the subject of patents are the act of July 4, 
1836, already mentioned; the acts of March 3, 1837; Idem, 2546; March 3, 
1839; 9 Laws U. S, 1019; August29,1842; ch. 263, Pamph. Laws, 171; May 27, 
1848. Minot's Stat. at Large, U. S. 231. Sec. 2. Of the patentee. 
     5. Any person or persons having discovered or invented the thing to be 
patented, whether he be a citizen of the United States or an alien, is 
entitled to a patent on fulfilling the requirements of the law. Act of July 
4, 1836, s. 6. 
     6. By the 10th section of the same act it is provided, That where any 
person hath made, or shall have made, any new invention, discovery or 
improvement, on account of which a patent might by virtue of this act be 
granted, and, such person shall die before any patent shall be granted 
therefor, the right of applying for and obtaining such patent shall devolve 
on the executor or administrator of such person, in trust for the heirs at, 
law of the deceased, in case he shall have died intestate; but if otherwise, 
then in trust for his devisees, in as full and ample manner, and under the 
same conditions, limitations, and restrictions, as the same was held, or 
might have been claimed or enjoyed by such in his or her lifetime; and when 
application for a patent shall be made by such legal representatives, the 
oath or affirmation provided in the sixth section of this act, shall be so 
varied as to be applicable to them. 
     7. And by the act of March 3, 1837, section 6, it is enacted, That any 
patent hereafter to be issued, may be made and issued to the assignee or 
assignees of the inventor or discoverer, the assignment thereof being first 
entered of record, and the application therefor being duly made, and the 
specifications duly sworn to by the inventor. And in all cases, hereafter, 
the applicant for a patent shall be held to furnish duplicate drawings, 
Whenever the case admits of drawings, one of which to be deposited in the 
office, and the other to be annexed to the patent, and considered a part of 
the specification. 
     Sec. 3. The subject to be patented 
     8. Patents are granted, 1. For inventions and discoveries. 2. For 
importations. 1. Patents for inventions and discoveries. By the act, of July 
4, 1836, sect. 6, it is enacted, that any person or persons having 
discovered or invented any new and useful art, machine,, manufacture, or 
composition of matter, or any new and useful improvement on any art, 
machine, manufacture, or composition of matter, not known or used by others 
before his or their discovery or invention thereof, and not, at the time of 
his application for a patent, in public use or on sale, with his consent or 
allowance, as the inventor or discoverer, and shall desire to obtain an 
exclusive property therein, may make application in writing to the 
commissioner of patents, expressing such desire, and the commissioner on due 
proceedings had, may grant a patent therefor. 
     9. The thing to be patented must be an invention Or discovery; it must 
be new and useful. 
    10.-1. The invention or discovery must be something which the inventor 
has himself found out; some peculiar device or manner of producing any given 
effect. A patent cannot, therefore, be taken out for the elementary 
principles of motion, which philosophy and science have discovered, but only 
for the manner of applying them. 1 Gallis. 478; 2 Gallis. 51. 
    11. A patent may be taken out for an improvement on a machine which is 
known and used; 3 Wheat. 454; but a mere change of former proportions, will 
not entitle a party to a patent. 1 Gallis. 438; 2 Gallis. 51. 
    12. It is provided by the act of July 4, 1836, s. 13, that whenever the 
original patentee shall be desirous of adding the description and 
specification of any new improvement of the original invention or discovery 
which shall have been invented or discovered by him subsequent to the date 
of his patent, he may, like proceedings being had in all respects as in the 
case of original applications, and on the payment of fifteen dollars, as 
hereinbefore provided, have the same annexed to the original description and 
specification; and the commissioner shall certify, on the margin of such 
annexed description and specification, the time of its being annexed and 
recorded; and the same shall thereafter have the same effect in law, to all 
intents and purposes as though it had been embraced in the original 
description and specification. 
    13. And by the act of March 3, 1837, s. 8, that, whenever application 
shall be made to the commissioner for any addition of a newly discovered 
improvement to be made on an existing patent, or when ever a patent shall be 
returned for correction, and re-issue, the specification of claim annexed to 
every such patent shall be subject to revision and restriction, in the same 
manner as are original applications for patents; the commissioner, shall not 
add any such improvement to the patent in the one case, nor grant the re-
issue in the other case, until the applicant shall have entered a 
disclaimer, or altered his specification of claim in accordance with the 
decision of the commissioner; and in all such cases the applicant, if 
dissatisfied with such decision, shall have the same remedy and be entitled 
to the benefit of the same privileges and proceedings as are provided by law 
in the case of original applications for patents. 
    14.-2. The thing patented must be a new and useful invention, 
discovery or improvement. 
    15. Among inventors, he who is first in time, has a right to the patent 
for the invention. Pet. C. C. R. 394. 
    16. But by the act of March 3, 1839, sect. 7, it is provided, that every 
person or corporation who has, or shill have, purchased or constructed any 
newly invented machine, manufacture, or composition of matter, prior to the 
application by the inventor or discoverer for a patent, shall be held to 
possess the right to use, and vend to others to be used, the specific 
machine, manufacture, or composition of matter so made or purchased, without 
liability therefor to the inventor, or any other person interested in such 
invention; and no patent shall be held to be invalid by reason of such 
purchase, sale, or use, prior to the application for a patent as aforesaid, 
except on proof of abandonment of such invention to the public; or that such 
purchase, sale, or prior use has been for more than two years prior to such 
application for a patent. 
    17. By the term useful invention is meant an invention which may be 
applied to some beneficial use in society, in contradistinction to an 
invention which is injurious to morals, to the health, or good order of 
society. 1 Mason, C. C. R. 302; 4 Wash. C. C; R. 9. The term is also opposed 
to that which is frivolous or mischievous. 1 Mason, C. C. R. 182; Renouard, 
177; Perpigna, Man. des Inv. c. 2, s. 1, page 50. See 3 Car. & P. 502; 1 
Pet. C. C. R. 480; 1 U. S. Law Journ. 563; 1 Paine, 203; 2 Kent, Com. 368, 
Dr; Phillim. on Pat. c. 7, s. 14. 
    18. The act of August 29, 1842, sect, 3, provides that any citizen or 
citizens, or alien or aliens, having resided, one year in the United States, 
and taken the oath of his or their intention to become a citizen or 
citizens, who by his, her, or their own industry, genius, efforts, and 
expense, may have invented or produced any new and original design for a 
manufacture, whether of metal, or other material or materials, or any new 
and original design for the printing of woolen, silk, cotton, or other 
fabrics, or any new and original design for a bust, statue, or has relief or 
composition in alto or basso relievo, or any new and original impression or 
ornament, or to be placed on any article of manufacture, the same being 
formed in marble or other material, or any new and useful pattern, or print, 
or picture, to be either worked into or worked on, or printed, or painted, 
or cast, or otherwise fixed on, any article of manufacture, or any new and 
original shape or configuration of ally article of manufacture not known or 
used by others before his, her, or their invention or production thereof, 
and prior to the time of his, her, or their application for a patent 
therefor, and who shall desire or obtain an exclusive Property or right 
therein to make, use, and sell and vend. the same, or copies of the same, to 
others, by them, made, used, and sold, may make application in writing to 
the commissioner of patents, expressing such desire, and the commissioner, 
on due proceedings had, may grant a patent therefor, as in the case. now of 
application for a patent: Provided, That the fee in such cases which by the 
now existing laws would be required of the particular applicant shall be 
one-half the sum, and that the duration of said patent shall be seven years, 
and that all the regulations and provisions which now apply to the obtaining 
or protection of patents not inconsistent with the provision's of this act, 
shall apply to applications under this section. 
    2. Patents for importations. 
    19. It is enacted by the act of March 3, 1839, s. 6, that no person 
shall be debarred from receiving a patent for any invention or discovery, as 
provided in the act approved on the fourth day of July, one thousand eight 
hundred and thirty-six, to which this is additional, by reason of the same 
having been patented in, a foreign country, more than six months prior to 
his application: Provided, That the same shall not have been introduced into 
public and common use, in the United States, prior to the application for 
such patent: And provided, also, That in all cages every such patent shall 
be limited to the term of fourteen years from the date or publication of 
such foreign letters-patent. 
    20. And by the act of July 4, 1836, s. 8, it is provided, that nothing 
in this act contained shall be, construed to deprive an original and true 
inventor of the right to a patent for his invention, by reason of his having 
previously taken out letters-patent therefor in a foreign country, and the 
same having been published at any time within six mouths next preceding the 
filing of his specification and drawing. 
    4. Of the caveat and other preliminary, proceedings. 
    21. The act of July 4, 1836, s. 12, provides that any citizen of the 
United States, or alien who have been resident in the United States one year 
next preceding, and shall have made oath of his intention to become a 
citizen thereof, who shall have invented any new art, machine, or 
improvement thereof, and shall desire further time to mature the same, may, 
on paying to the credit of the treasury, in manner as provided in the ninth 
section of this act, the sum of twenty dollars, file in the patent office a 
caveat, setting forth the design and purpose thereof, and its principal and 
distinguishing characteristics, and praying protection of his right, till he 
shall have matured his invention -- which sum of twenty dollars, in case the 
person filing such caveat shall afterwards take out a patent for the 
invention therein mentioned, shall be considered a part of the sum herein 
required for the same. And such caveat shall be filed in the confidential 
archives of the office, and preserved in secrecy. And if application shall 
be made by any other person within one year from the time of filing such 
caveat, for a patent of any invention with which it may in any respect 
interfere, it shall be the duty of the commissioner to deposit the 
description, specifications, drawings, and model, in the confidential 
archives of the office, and to give notice, by mail, to the person filing 
the caveat, of such application, who shall, within three months after 
receiving the notice, if he would avail himself of the benefit of his caveat,

file his description, specifications, drawings, and model: and if, in the 
opinion of the commissioner, the specifications of claim interfere with each 
other, like proceeding& may be had in all respects as are in this act 
provided in the case of interfering applications: Provided, however, That no 
opinion or decision of any board of examiners, under the provisions of this 
act, shall preclude any person interested in favor of or against the 
validity of any patent which has been or may hereafter be granted, from the 
right to contest the same in any judicial court in any action in which its, 
validity may come in question. 
    22. And the same act, s. 8, directs, that whenever, the applicant shall 
request it, the patent shall take date from the time of the filing of the 
specification and drawings, not however, exceeding six mouths prior to the 
actual issuing of the patent; and on like request, and the payment of the 
duty herein required, by any applicant, his specification and drawings shall 
be filed in the secret archives of the office, until he shall furnish the 
model and the patent be issued, not exceeding the term of one year, the 
applicant being entitled to notice of interfering application. 
    Sec. 5. Of the proceedings to obtain a patent.
    23. This section will be divided by considering the proceedings when 
there is no opposition, and when there are conflicting claims. 
    1. Proceedings without opposition 
    24. The sixth section of the act of July 4, 1836, directs, that before 
any inventor shall receive a patent for any such new invention or discovery, 
he shall deliver a written description of his invention or discovery, and of 
the manner and process of making, constructing, using, and compounding the 
same, in such full, clear, and exact terms, avoiding unnecessary prolixity, 
as to enable any person skilled in the art or science to which it 
appertains, or with which it is most nearly connected, to make, construct, 
compound, and use the same; and in case of any machine, he shall fully 
explain the principle and the several modes in which he has contemplated the 
application of that principle or character by which it may be distinguished 
from other inventions and shall particularly specify and point out the part, 
improvement, or combination, which he claims as his own invention or 
discovery. He shall, furthermore, accompany the whole with a drawing, or 
drawings, and written references, where the nature of the case admits of 
drawings, or with specimens of ingredients, and of the composition of 
matter, sufficient in quantity for the purpose of experiment, where the 
invention or discovery is of a composition of matter; which descriptions and 
drawings, signed by the inventor and attested by two witnesses; shall be 
filed in the patent office; and be shall, moreover, furnish a model of his 
invention, in all cases which admit of a representation by model, of a 
convenient size to exhibit advantageously its several parts. The applicant 
shall also make oath or affirmation that he does verily believe that he is 
the original and first inventor or discoverer of the art, machine, 
composition, or improvement, for which he solicits a patent, and that he 
does not know or believe that the same was ever known or used; and also of 
what country he is a citizen; which oath or affirmation may, be made before 
any person authorized by law to administer oaths. 
    25. The fourth section of the act of August 29, 1842, provides that the 
oath required for applicants for patents, may be taken, when the applicant 
is not, for the time being, residing in the United States, before any 
minister plenipotentiary, charge d affaires; consul, or commercial agent, 
holding a commission under the government of the United States, or before 
any notary public of the country in which such applicant may be. 
    26. And the act of March 3, 1837, sect. 13, provides that in all cases 
in which an oath is required by this act, or by the act to which this is 
additional, if the person of whom it is required shall be conscientiously 
scrupulous of taking an oath, affirmation may be substituted therefor. 
    27. The seventh section of the act of July 4, 1836, further enacts, that 
on the filing of any such application, description, and specification, and 
the payment of the duty hereinafter provided, the commissioner shall make or 
cause to be made, an examination of the alleged new invention or discovery; 
and if, on any such examination, it shall not appear to the commissioner 
that the same had been invented or discovered by any other person in this 
country prior to the alleged invention or discovery thereof by the 
applicant, or that it had been patented or described in any printed 
publication in this or any foreign country, or had been in public use or on 
sale with the applicant's consent or allowance prior to the application, if 
the commissioner shall deem it to be sufficiently useful and important, it 
shall be his duty to issue a patent therefor. But whenever on such 
examination it shall appear to the commissioner that the applicant wag not 
the original and first inventor or discoverer thereof, or that any part of 
that which is claimed as new had before been invented or discovered, or 
patented, or described in any printed, publication in this or any foreign 
country, as aforesaid, or that the description is defective and 
insufficient, he shall notify the applicant thereof, giving him, briefly, 
such information and, references as may be useful in judging of the 
propriety of renewing his application, or of altering his specification to 
embrace only that part of the invention or discovery which is new. In every 
such case, if the applicant shall elect to withdraw his application, 
relinquishing his claim to the model, he shall be entitled to receive back 
twenty dollars part of the duty required by this act, on filing a notice in 
writing of such election in the patent office, a copy of which, certified by 
the commissioner, shall be a sufficient warrant to the treasurer for paying 
back to said applicant the said sum of twenty dollars. But if the said 
applicant in such case shall persist in his claim for a patent, with or 
without any alteration of his specification, he shall be required to make 
oath or affirmation anew in manner as aforesaid. And if the specification 
and claim shall not have been so modified as in the opinion of the 
commissioner, shall entitle the applicant to a patent, he may, on appeal, 
and upon request in writing, have the decision of the board of examiners, to 
be composed of three disinterested persons, who shall be appointed for that 
purpose by the secretary of state, one of whom at least, to be selected, if 
practicable and convenient, for his knowledge and skill in the particular 
art, manufacture, or branch of science to which the alleged invention 
appertains; who shall be under oath or affirmation for the faithful and 
impartial performance of the duty imposed upon them by said appointment. 
Said board shall be furnished with a certificate in writing, of the opinion 
and decision of the commissioner, stating the particular grounds of his 
objection, and the part or parts of the invention which he considers as not 
entitled to be patented. And the same board shall give reasonable notice to 
the applicant, as well as to the commissioner of the time and place of their 
meeting; that they may have an opportunity of furnishing them with such 
facts and evidence as they may deem necessary to. a just decision; and it 
shall be the duty of the commissioner to furnish to the board of examiners 
such information as he may possess relative to the matter under their 
consideration. And on an examination and consideration of the matter by such 
board, it shall be in their power, or of a majority of them, to reverse the 
decision of the commissioner, either in whole or in part; and their opinion 
being certified to the commissioner, he shall be governed thereby, in the 
further proceedings to be had on such application: Provided, however, That 
before a board shall be instituted in any such case, the applicant shall pay 
to the credit of the treasury, as provided in the ninth section of this act, 
(see 47,) the sum of twenty-five dollars, and each of said persons so 
appointed shall be entitled to receive for his services in each case, a sum 
not exceeding ten dollars, to be determined and paid by the commissioner out 
of any moneys in his hands, which shall be in full compensation to, the 
persons who may be so appointed, for their examination and certificate as 
aforesaid. 
    28. By the twelfth section of the act of March 3, 1839, the commissioner 
of patents is vested with power to make all such regulation's in respect to 
the taking of evidence to be used in contested leases before him, as may be 
just and reasonable and so much of the act of July 4, 1836, as provides for 
a board of examiners, is thereby repealed. 
    29. And by the same act, sect. 11, it is provided, that in all cases 
where an appeal is now. allowed by law from the decision of the commissioner 
of patents to a board of examiners provided for in the seventh section of 
the act to which this is additional, the party, instead thereof, shall have 
a right to appeal to the chief justice of the district court of the United 
States for the district of Columbia, by giving notice thereof to the 
commissioner, and filing in the patent office, within such time as the 
commissioner shall appoint, his reasons of appeal, specifically set forth in 
writing, and also paying into the patent office, to the credit of the patent 
fund, the sum of twenty-five dollars. And it shall be the. duty of said 
chief justice, on petition, to hear and determine all such appeals, and to 
revise such decisions in a summary manner, on the evidence produced before 
the commissioner, at such early and convenient time as he may appoint, first 
notifying the commissioner of the time and place of hearing, whose duty it 
shall be to give notice thereof to all parties who appear to be interested 
therein, in such manner as said judge shall prescribe. The commissioner 
shall also lay before the said judge all the original papers and evidence in 
the case, together with the grounds of his decision, fully set forth in 
writing, touching all the points involved by the reasons of appeal, to which 
the revision shall be confined. And at the request of any party interested, 
or at the desire of the judge, the commissioner and the examiners in the 
patent office, may be examined under oath, in explanation of the principles 
of the machine, or other thing for which a patent, in such case, is prayed 
for. And it shall be the duty of said judge after a hearing of any such 
case, to return all the papers to the commissioner, with a certificate of 
his proceedings and decision, which shall be entered of record in the patent 
office; land such decision, so certified, shall govern the further 
proceedings of the commissioner in such case, Provided, however, That no 
opinion or decision of the judge in any such case, shall preclude any person 
interested in favor or against the validity of any patent, which has been or 
way hereafter be granted, from the right to contest the same in any judicial 
court, in any action in which its validity may come in question. 
    2. When there are conflicting claims.
    30. It is enacted by the 8th section of the act of July 4, 1836, that 
whenever an application shall be made for a patent, which, in the opinion of 
the commissioner, would interfere with any other patent for which an 
application may be pending, or with any unexpired patent which shall have 
been granted, it shall be the duty of the commissioner to give notice 
thereof to such applicants or patentees; as the case maybe; and if either 
shall be dissatisfied with the decision of the commissioner on the question 
of priority, right or invention, on a hearing thereof, he may appeal from 
such decision, on the like terms and conditions as are provided in the 
preceding section of this act and like proceedings, shall be had, to 
determine which, or whether either of the applicants is entitled to receive 
a patent as prayed for. 
    31. And by the 16th section of the same act, that whenever there shall 
be two interfering patents, or whenever a patent on application shall have 
been refused on an adverse decision of a board of examiners, on the ground 
that the patent applied for would interfere with an unexpired patent 
previously granted, any person interested in any such patent, either by 
assignment or otherwise, in the one case, and any such applicant in the 
other, may have remedy by bill in equity; and the court having cognizance 
thereof, on notice to adverse parties and other due proceedings had, may 
adjudge and declare either the patents void in whole or in part, or 
inoperative and invalid in any particular part or portion of the United 
States, according to the interest which the parties in such suit may possess 
in the patent or the inventions patented, and may also adjudge that such 
applicant is entitled, according to the principles and provisions of this 
act, to have and receive a patent for his invention, as specified in his 
claim, or for any part thereof, as the fact of priority of right or 
invention shall in any such case be made to appear. And such adjudication, 
if it be in favor of the right of such applicant, shall authorize the 
Commissioner to issue such patent, on his filing a copy of the adjudication, 
and otherwise complying with the requisitions of this act. Provided, 
however, that no such judgment or adjudication shall affect the rights of 
any persons except the parties to the action and those deriving title from 
or under them subsequent to the rendition of such judgment. And the 
commissioner is vested by the 12th section of the act of March 3, 1839, with 
powers to make such rules and regulations in respect to the taking of 
evidence to be used in contested cases before him, as may be just and 
reasonable. 
    32. The act of March 3, 1839, section 10, provides, that the provisions 
of the sixteenth section of the before recited act shall extend to all cases 
where the patents are refused for any reason whatever, either by the 
commissioner of patents or by the chief justice of the district of Columbia, 
upon appeals from the decision of said commissioner, as well as where the 
same shall have been refused on account of, or by reason of interference 
with a previously existing patent; and in all cases where there is ne 
opposing party, a copy of the bill shall be served upon the commissioner of 
patents, when the whole of the expenses of the proceeding shall be paid by 
the applicant, whether the final decision shall be in his favor or 
otherwise. 
    Sec. 6. Of the patent.
    33. This section will be divided by considering, 1. The form of the 
patent. 2. The correction of the patent. 3. The special provisions of the 
acts of congress occasioned by the burning of the patent office. 4. The 
disclaimer. 5. The assignment of patents. 6. The extension of the patent. 7. 
The requisites to be observed after the granting of a patent to secure it. 
    1. Form of the patent.
    34. The patent is to be issued in the form prescribed by the act of 
congress. The fifth section of the act of July 4, 1836, directs, that all 
patents issuing from said office shall be issued in the name of the United 
States, and under the seal of said office, and be signed by the secretary of 
state, and countersigned by the commissioner of the said office, and shall 
be recorded, together with the descriptions, specifications and drawings, in 
the said office, in books to be kept for that purpose. Every such patent 
shall contain a short description or title of the invention or discovery, 
correctly indicating its nature and design, and in its terms grant to the 
applicant or applicants, his or their heirs, administrators, executors or 
assigns, for a term not exceeding fourteen years, the full and exclusive 
right and liberty of making, using, and vending to others to be used, the 
said invention or discovery, referring to the specifications for the 
particulars thereof, a copy of which shall be annexed to the patent, 
specifying what the patentee claims as his invention or discovery. It is 
usually dated at the time of issuing it, but by a provision of the last 
mentioned act, section 8, whenever the applicant shall request it, the 
patent shall take date, from the time of filing, the specification and 
drawings, not, however, exceeding six months prior to the actual issuing of 
the patent. 
    2. Correction of patent. 
    35. It is provided by the thirteenth section of the act of July. 4, 
1836, that whenever any patent which has heretofore been granted, or which 
shall hereafter be granted, shall be inoperative or invalid, by reason of a 
defective or insufficient description or specification, or by reason of the 
patentee claiming in his specification as his own invention, more than he 
had or shall have a right to claim as new; if the error has, or shall have 
arisen b y inadvertency, accident or mistake, and without any fraudulent or 
deceptive intention, it shall be lawful for the commissioner, upon the 
surrender to him of such patent, and the payment of the further duty of 
fifteen dollars, to cause a new patent to be issued to the said inventor, 
for the same invention, for the residue of the period then unexpired for 
which the original patent was granted, in accordance with the patentee's 
corrected description and specification. And in the event of his death, or 
any assignment by him made of the original patent, a similar right shall 
vest in his executors, administrators, or assignees. And the patent, so 
reissued, together with the corrected description and specification, shall 
have the same effect and operation in law, on the trial of all actions, 
hereafter commenced for causes subsequently accruing, as though the same had 
been originally filed in such corrected form, before the issuing out of the 
original patent. And whenever the original patentee shall be desirous of 
adding the description and specification of any new improvement of the 
original invention or discovery which shall have been invented or discovered 
by him subsequent to the date of his patent, he may, like proceedings being 
had in all respects as in the case of original applications, and on the 
payment of fifteen dollars, as hereinbefore provided, have the same annexed 
to the original description and specification; and, the commissioner shall 
certify, on the margin of such annexed description and specification, the 
time of its being annexed and recorded; and the same shall thereafter have 
the same effect in law, to all intents and purposes, as though it had been 
embraced in the original description and specification. 
    36. And it is enacted by the act of March 3, 1837, section 5, that, 
whenever a patent shall be returned for correction and reissue under the 
thirteenth section of the act to which this is additional, and the patentee 
shall desire several patents to be issued for distinct and separate parts of 
the thing patented, he shall first pay, in manner and in addition to the sum 
provided by that act, the sum of thirty dollars for each additional patent 
so to be issued; Provided, however, that no patent made prior to the 
aforesaid fifteenth day of December, 1836, shall be corrected and reissued 
until a duplicate of the model and drawing of the thing as originally 
invented, verified by oath as shall be required by the commissioner, shall 
be deposited in the patent office: Nor shall any addition of an improvement 
be made to any patent heretofore granted, nor any new patent to be issued 
for an improvement made in any machine, manufacture, or process, to the 
original inventor, assignee or possessor, of a patent therefor, nor any 
disclaimer be admitted to record, until a duplicate model and drawing of the 
thing originally intended, verified as aforesaid, shall have been deposited 
in the patent office, if the commissioner shall require the same; nor shall 
any patent be granted for an invention, improvement, or discovery, the model 
or drawing of which shall have been lost, until another model and drawing, 
if required by the commissioner, shall, in like manner, be deposited in the 
patent office: 
    37. And in all such cases, as well as in those which may arise under the 
third section of this act, the question of compensation for such models and 
drawings, shall be subject to the judgment and decision of the commissioners 
provided for in the fourth section, under the same limitations and 
restrictions as are therein prescribed. 
    3. Special provisions occasioned by the burning the patent office. 
    38. The act of March 3, 1837, was passed to remedy the inconveniences 
arising from the burning of the patent office. It is enacted, 
    39.-Sect. 1. That any person who may be in possession of, or in any way 
interested in, any patent for an invention, discovery, or improvement, 
issued prior to the fifteenth day of December, in the year of our Lord one 
thousand eight hundred and thirty-six, or in an assignment of any patent, or 
interest therein, executed, and recorded prior to the said fifteenth day of 
December, may, without charge, on presentation or transmission thereof to 
the commissioner of patents, have the same recorded anew in the patent 
office, together with the descriptions, specifications of claim and drawings 
annexed or belonging to the same; and it shall be the duty of the 
commissioner to cause the same, or any authenticated copy of the original 
record, specification, or drawing which he may obtain, to be transcribed and 
copied into books of record to be kept for that purpose; and wherever a 
drawing was not originally annexed to the patent and referred to in the 
specification and drawing produced as a delineation of the invention, being 
verified by oath in such manner as the commissioner shall require, may be 
transmitted and placed on file, or copied as aforesaid, together with the 
certificate of the oath; or such drawings may be made in the office, under 
the direction of the commissioner, in conformity with the specification. And 
it shall be the duty of the commissioner to take such measures as may be 
advised and determined by the board commissioners provided for by the fourth 
section, of this act, to obtain the patents, specifications, and copies 
aforesaid, for the purpose of being so transcribed and recorded. And it 
shall be the duty of each of the several clerks of the judicial courts of 
the United States, to transmit, as soon as may be, to the commissioner of 
the patent office, a statement of all the authenticated copies of patents, 
descriptions, specifications, and drawings of inventions and discoveries 
made and executed prior to the aforesaid fifteenth day of December, which 
may be found on the files of his office; and also to make out and transmit 
to said commissioner for record as aforesaid, a certified copy of every such 
patent, description, specification, or drawing, which shall be specially 
required by such commissioner. 
    40.-Sect. 2. That copies of such record and drawings, certified by the 
commissioner, or, in his absence, by the chief clerk, shall be prima facie 
evidence of the particulars of the invention and of the patent granted 
therefore, in any judicial court of the United States, in all cases where 
copies of the original record or specification and drawings would be 
evidence, without proof of the loss of such originals and no patent issued 
therefor by the patentee or other person prior to the aforesaid, fifteenth 
day of December, shall, after the first day of June next, be received in 
evidence in, any of the said courts in behalf of the patentee or other 
person who shall be in possession of the same, unless it shall have been so 
recorded anew, and a drawing of the invention, if separate from the patent, 
verified as, aforesaid, deposited in the patent office; nor shall any 
written assignment of any such patent, executed and, recorded prior to the 
said fifteenth day of December, be received in evidence in any of the said 
courts in behalf of the assignee or other person in possession thereof, 
until it shall have been so recorded anew. 
    41.-Sect. 3. That whenever it shall appear to the commissioner that any 
patent was destroyed by the burning of the patent office building on the 
aforesaid fifteenth day of December, or was otherwise lost prior thereto, it 
shall be his duty, on application terested therein, to issue a new patent 
for the same invention or discovery bearing the date of the original patent, 
with his certificate thereon that it was made and issued pursuant to the 
provisions of the third section of this act, and shall enter the same of 
record: Provided, however, That before such patent shall be issued, the 
applicant therefor shall deposit in the patent office a duplicate, as near 
as may be, of the original model, drawings, and description, with 
specification of the invention or discovery, verified by oath, as shall be 
required by the commissioner; and such patent and copies of such drawings 
and descriptions, duly certified, shall be admissible as evidence in any 
judicial court of the United States, and shall protect the rights of the 
patentee, his administrators, heirs and assigns, to the extent only in which 
they would have been protected by the original patent and specification. 
    42. The act of August 29, 1842, sect. 2, extends the provisions of the 
last section to patents granted prior to the said fifteenth day of December, 
though they may have been lost subsequently; provided, however, the same 
shall not have been recorded anew under the provisions of said act. 
    4. Of the disclaimer. 
    43. The act of March 3, 1837 sect. 7, authorizes any patentee who shall 
have, through inadvertence, accident, or mistake, made his specification of 
claim too broad, claiming more than that of which he was the original or 
first inventor, some material and substantial part of the thing patented 
being truly and justly his own, any such patentee, his administrators, 
executors, and assigns, whether of the, whole or of a sectional interest 
therein, may make disclaimer of such parts of the thing patented as the 
disclaimant shall not claim to hold by virtue of the patent or assignment, 
stating therein the extent of his interest in, such patent; which disclaimer 
shall be in writing, attested by one or more witnesses, and recorded in the 
patent office, on payment by the person disclaiming, in manner as, other 
patent duties are required by law to be paid, of the sum of ten dollars. And 
such disclaimer shall thereafter be taken and considered as part of the 
originals specification, to the extent of the interest which shall be 
possessed in the patent or right secured thereby, by the disclaimant, and by 
those claiming by or under him subsequent to the record thereof. But no such 
disclaimer shall affect any action pending at the time of its being filed, 
except so far as may relate to the question of unreasonable neglect or delay 
in filing the same. 
    5. Assignment of patents. 
    44. By virtue of the act of July 4, 1836, sect. 11, every patent shall 
be assignable in law, either as to the whole interest, or, any undivided 
part thereof, by any instrument in writing; which assignment, and also every 
grant and conveyance of the exclusive right under any patent, to make and 
use, and to grant to others to make and use, the thing patented within and 
throughout any, specified part or portion of the United States, shall be 
recorded in the patent office within three months from the execution 
thereof. This act required the payment of a fee of three dollars to be paid 
by the assignee, but this provision has been repealed by the act of March 3, 
1839, s. 8, and such assignments, grants, and conveyances, shall, in future, 
be recorded without any charge whatever. But, by the act of May 27, 1848, 
Minot's. Stat. at Large, U. S. 231, it is enacted, That hereafter the 
commissioner of patents shall require a fee of one dollar for recording any 
assignment, grant or conveyance, of the, whole or any part of the interest 
in letters-patent, or power of attorney, or license to make or use the 
things patented, when such instrument shall not exceed three hundred words; 
the sum of two dollars when it shall exceed three hundred, and shall not 
exceed one thousand words and the sum of three dollars when it shall exceed 
one thousand words; which fees shall in all cases be paid in advance. 
    6. The extension of the patent. 
    45. The act of July. 4, 1836, sect. 18; directs, That whenever any 
patentee of an invention or discovery shall desire an extension of his 
patent beyond the term of its limitation, be may make application therefor, 
in writing, to the commissioner of the patent office, setting forth the 
grounds thereof, and the commissioner shall, on the applicant's paying the 
sum of forty dollars to the treasury, as in the case of an original 
application, for a patent, cause to be published, in one or more of the 
principal newspapers in the city of Washington, and in such other paper or 
papers as he may deem proper, published in the section of country most 
interested adversely to the extension of the patent, a notice of such 
application and of the time and place when and where the same will be 
considered, that any, person may appear and show cause why the extension 
should not be granted. And the secretary of state, the commissioner of the 
patent office, and the solicitor of, the treasury, shall constitute a board 
to hear and decide upon the evidence produced before them both for and 
against the extension, and shall sit for that purpose at the time and place 
designated in the published notice thereof. The patentee shall furnish to 
said board a statement, in writing, under oath, of the ascertained value of, 
the invention, and of his receipts and expenditures, sufficiently in detail 
to exhibit a true and faithful account of loss and profit in any manner 
accruing to him from and by reason of said invention. And if, upon a hearing 
of the matter, it shall appear to the full and entire satisfaction of said 
board, having due regard to the public interest therein, that it is just and 
proper that. the term of the patent should be extended by reason of the 
patentee, without neglect or fault on his part, having failed to obtain, 
from the use and sale of his invention, a reasonable remuneration for the 
time, ingenuity and expense bestowed upon the same, and the introduction 
thereof into use, it shall be the duty of the commissioner to renew and 
extend the patent, by making a thereon of such extension, for the term of 
seven years from and after the expiration of the first term; which 
certificate, with a certificate of said board of their judgment and opinion 
as aforesaid, shall be entered on record in the patent office; and thereupon 
the said patent shall have the same effect in law as though it had been 
originally granted for the term of twenty-one years. And the benefit of 
such, renewal shall extend to assignees and grantees of the right to use the 
thing patented, to the extent of their respective interest therein: 
Provided, however, That no extension of a patent shall be granted after the 
expiration of the term for which it was originally issued. 
    7. Requisites to secure the patent. 
    46. The act of August 29, 1842, section 6, requires, That all patentees 
and and assignees of patents hereafter granted, are hereby required to 
stamp, engrave, or cause to be stamped or engraved, on each article vended, 
or offered for sale, the date of the patent; and if any person or persons, 
patentees, or assignees, shall neglect to do so, he, she, or they, shall be 
liable to the same penalty, to be recovered and disposed of in the manner 
specified in the foregoing fifth section of this act. See 49. 
    Sec. 7. Duty or tax on patents. 
    47. The tax or duty on patents is not the same in all cases, foreigners 
being required to pay a greater sum than citizens, and the subjects of the 
king of Great Britain a greater sum than other foreigners. The ninth section 
of the act of July 4, 1836, requires, That before any application for a 
patent can be considered by the commissioner as aforesaid, the applicant 
shall pay into the treasury of the United States, or into the patent office, 
or into any of the deposit banks to the credit of the treasury, if he be a 
citizen of the United States, or an alien, and shall have been resident in 
the United States for one year next preceding, and shall have made oath of 
his intention to become a citizen thereof, the sum of thirty dollars; if a 
subject of the king of Great Britain, the sum of five hundred dollars; and 
all other persons the sum of three hundred dollars, for which payment 
duplicate receipts shall be taken, one of which to be filed in the office of 
the treasurer. And the moneys received into the treasury under this act, 
shall constitute a fund for the payment of the salaries of the officers and 
clerks herein provided for, and all other expenses of the patent office, and 
to be called the patent fund. 
    48. When an applicant withdraws his application before the issuing of 
the patent, he is entitled to receive back twenty dollars of the sum he may 
have paid into the treasury. Act of July 4, 1836, sect. 7. And the act of 
March 3, 1837, section 12, enacts, That whenever the application of any 
foreigner for a patent shall be rejected and withdrawn for want of novelty 
in the invention, pursuant to the seventh, section of the act to which this 
is additional, the  certificate thereof of the commissioner shall be a 
sufficient warrant to the treasurer to pay back to such applicant two-thirds 
of the duty he shall have paid into the treasury on account of such 
application. When money has been paid by mistake, as for foes accruing at 
the patent office, it must, by the direction of the act of August 29, 1842, 
section 1, be refunded. 
    Sec. 8. Penalty for use of patentee's marks. 
    49. The act of August 29, 1842, s. 5, declares, That if any person or 
persons shall paint or print, or mould, cast, carve, or engrave, or stamp, 
upon any thing made, used, or sold, by him, for the sole making or selling 
which he hath not or shall not have obtained letters-patent, the name or any 
imitation of the namer of any other person who hath or shall have obtained 
letters-patent for the sole making and vending of such thing, without 
consent of such patentee or his assigns or legal representatives; or if any 
person, upon any such thing not having been purchased from the patentee, or 
some person who purchased it from or under such patentee, or not having the 
license or consent of such patentee, or his assigns or legal 
representatives, shall write paint, print, mould, carve, engrave, stamp, or 
otherwise make or affix the word "patent," or the words "letters-patent," or 
the word "patentee," or any word or words of like kind, meaning, or import, 
with the view or intent of imitating or counterfeiting the stamp, mark, or 
other device of the patentee, or shall affix the same or any word, stamp, or 
device, of like import, on any unpatented article, for the purpose of 
deceiving the public, he, she, or they, so offending, shall be liable for 
such offence, to a penalty of not less than one hundred dollars, with costs, 
to be recovered by action in any of the circuit courts of the United States, 
or in any of the district courts of the United States, having the powers and 
jurisdiction of a circuit court; one-half of which penalty, as recovered, 
shall be paid to the patent fund, and the other half to any person or 
persons who shall sue for the same. 
    Sec. 9. Courts having jurisdiction in patent cases. 
    50. It is enacted by the 17th section of the act of July 4, 1836, That 
all actions, suits, controversies, and cases arising under any law of the 
United States, granting or confirming to inventors the exclusive right to 
their inventions or. discoveries, shall be originally cognizable, as well in 
equity as at law, by the circuit courts of the United States, or any 
district court having the powers and jurisdiction of a circuit court which 
courts shall have power, upon bill in equity filed by any party aggrieved, 
in any such case, to grant injunctions, according to the course and 
principles of courts of equity, to prevent the violation of the rights of 
any inventor as secured to him by any law of the United States on such terms 
and conditions as said courts may deem reasonable: Provided, however, That 
from all judgments and decrees, from. any, such court rendered in the 
premises, a writ of error or appeal, as the case may require, shall lie to 
the supreme court of the United States, in the same manner and under the 
same circumstances as is now Provided by law in other judgments and decree, 
of circuit courts, and in all other case's in which the court shall deem, it 
reasonable to allow the same. 
    Sec. 10. Actions for violation of patent rights. 
    51. The act of July 4, 1836, section 14, provides, That whenever in any 
action for damages for making, using, or selling the thing whereof the 
exclusive right is secured by any patent heretofore granted, or by any 
patent which may hereafter be granted, a verdict shall be rendered for the 
plaintiff in such action, it shall be in the power of the court to render 
judgment for any sum above the amount found by such verdict as the actual 
damages sustained by the plaintiff, not exceeding three times the amount 
thereof, according to the circumstances of the case, with costs; and such 
damages may be recovered by action on the case, in any court of competent 
jurisdiction, to be brought in the name or names of the person or persons 
interested, whether as patentee, assignees, or as grantees of the exclusive 
right within and throughout a specified part of the United States. 
    52.-Sect. 15. That the defendant in any such action shall be permitted 
to plead the general issue, and to give this act, and any special matter in 
evidence, of which notice in writing may have been given to the plaintiff or 
his attorney, thirty days before trial, tending to prove that the 
description and specification filed by plaintiff does not contain the whole 
truth relative to his invention or discovery, or that it contains more than 
is necessary to produce the described effect; which concealment or addition 
shall fully appear to have, been made for the purpose of deceiving the 
public, or that the patentee was not, the original and first inventor or 
discoverer of the thing patented, or of a substantial and material art 
thereof claimed as new, or that it had teen described in some public work 
anterior to the supposed discovery thereof by the patentee, or had been in 
public use, or on sale with the consent and allowance of the patentee before 
his application for a patent, or that, he had surreptitiously or unjustly 
obtained the patent for that which was in fact invented or discovered by 
another, who was using reasonable diligence in adapting and perfecting the 
same; or, that the patentee if an alien at the time the patent was granted, 
had failed and neglected for the space of eighteen months from the date of 
the patent, to put and continue on sale to the public, on reasonable terms, 
the invention or discovery for which the patent issued; in either of which 
cases judgment shall be rendered for the defendant, with costs. And whenever 
the defendant relies in his defence on the fact of a previous invention, 
knowledge, or use of the thing patented, be shall state, in his notice of 
special matter, the names and places of residence of those whom he intends 
to prove to have possessed a prior knowledge of the thing and where the same 
had been used: Provided, however, that whenever it shall satisfactorily 
appear that the patentee, at the time of making his application for the 
patent, believed himself to be the first inventor or discoverer of the thing 
patented the same shall not be held to be void on account of the invention 
or discovery or any part thereof having been before known or used in any 
foreign country, it not appearing that the same or any substantial part 
thereof, had before been patented or described in any printed publication. 
And provided, also, that whenever the plaintiff shall fail to sustain his 
action on the ground that in his specification of claim is embraced more 
than that of which he was the first inventor, if it shall appear that the 
defendant had used or violated any part of the invention justly and truly 
specified and claimed as new, it shall be in the power of the court to 
adjudge and award as to costs as may appear to be just and equitable. 
    53. This last section has been modified by the act of March 3, 1837, 
which enacts as follows: Section 9, That anything in the fifteenth section 
of the act to which this is additional to the contrary notwithstanding That, 
whenever by mistake, accident, or inadvertence, and without any willful 
default or intent to defraud or mislead the public, any patentee shall have 
in his specification claimed to be the original and first inventor or 
discoverer of any material or substantial part of the thing patented, of 
which he was not the first and original inventor, and shall have no legal or 
just right to claim the same in every such, case the patent shall be deemed 
good and valid for so much of the invention or discovery as shall be truly 
and bona fide his own: Provided, it shall be a material and substantial part 
of the thing patented, and be definitely distinguishable from the other 
parts so claimed without right as aforesaid. And every such patentee, his 
executors, administrators and assigns, whether of the whole or of a 
sectional interest therein, shall be entitled to maintain a suit at law or 
in equity on such patent for any infringement of such part of the invention 
or, discovery as shall be bona fide his own as aforesaid, notwithstanding 
the specification may embrace more than he shall have any legal right to 
claim. But, in every such case in which a judgment or verdict shall be 
rendered for the plaintiff he shall not be entitled to recover costs against 
the defendant, unless he shall have entered at the patent office, prior to 
the commencement of the suit, a disclaimer of all that part of the thing 
patented which were so claimed without right: Provided, however, That no 
person bringing any such suit shall be entitled to the benefits of the 
provisions contained in this section, who shall have unreasonably neglected 
or delayed to enter at the patent office a disclaimer as aforesaid. See Bac. 
Ab. Monopoly Id. Prerogative, F 4; Phill. on Pat.; Fessend. on Pat.; Carpm. 
on Pat.; Hand on Pat.; Webst. on Pat; Coll. on Pat.; Gods. on Pat.; Holr. on 
Pat.; Smith on Pat.; Drewry's Patent Law Abandonment Act; Davies' Collection 
of Cases on the Law of Patents; Rankin's Analysis of the Law of Patents. 
Among the French writers are Perpigna on Patents; written in English'; and 
the Manuel of the same author, in French; and the works of Renouard, Dalloz, 
Molard, and Regnault. See the various Digests and particularly Peters' 
Digest, h.t. 

PATENT FRENCH. The following points in relation to the patent laws of France 
will be found useful to those who have invented valuable machinery, and who 
are desirous of availing themselves of the patent laws of that country: 
     2.-Sec. 1. To whom patents are granted. All persons may obtain 
patents in this country, whether they are men or women, adults or infants, 
Frenchmen or foreigners, and in general all persons who fulfill the 
conditions required by the law in order to obtain patents. 
     3. It is not requisite that the applicant should be present, but the 
application must be made in his name. 
     4.-Sec. 2. The different kinds of patents. There are three principal 
kinds of patents. 1. Patents for inventions, (brevets d' invention.) 2. 
Patents for improvements, (brevets de perfectionnement.) 3. Patents for 
importations, (brevets d'importations.) But as patents may be taken for a 
combination of the above, there may be added, by such combination, four 
others, namely; 5. Patents for invention and improvements, (brevets 
d'invention et de perfectionnemen t.) 6. Patents for invention and 
importation, (brevets d'invention et d'importation.) 7. Patents for 
importation and improvement, (brevets d'importation et de perfectionnement.) 
8. Patents for importation, invention and improvement (brevets d'invention, 
et perfectionnement et d' importation.) 
     5. The forms prescribed to obtain these several kinds of patents are 
exactly, the same, the only difference consists in the declaration of the 
applicant, which must be in conformity with the kind of patent he desires to 
obtain. 
     6. The applicant himself has the right to fix the number of years for, 
which he desires to have his patent, when he applies, to have his request 
registered at the prefecture. He may have it for five, ten, or fifteen 
years. And this period he has a  right to change until the patent has been 
signed. But with regard to patents for importations, the duration of the 
patent cannot extend beyond the period for which there is a patent in the 
country, from which the importation has been made. 
     7. Patents, other than for importation, may be extended as to time. 
There are two species of prolongation; the first, within fifteen years; the 
second, beyond fifteen years. 
     8.-Sec. 3. Cost of patents. The tax, as it is called, which must be 
paid in order to obtain a patent, varies according to the duration of the 
patent. This tax may be paid in cash or by installments. When paid in cash, 
it is as follows: 1. For, five years, 300 francs, about 56 dollars and 40 
cents. 2. For ten years, 800 francs, about 94 dollars. 3. For fifteen years, 
1500 francs, about 282 dollars; besides some office expenses, amounting to 
from ten to fifteen dollars. 
     9.-Sec. 4. Foreign patents. The patentee in France cannot obtain a 
patent in a foreign country, without losing his rights in France; but this 
provision is easily eluded by another person taking out the patent in the 
foreign country, when patents for importations are granted. Perpigna, Manuel 
des Inventeurs, &o., c. 3, 5, p. 90. 

PATENT LAWS OF GREAT BRITAIN AND IRELAND. The patent laws of Great Britain 
and Ireland will be briefly considered by taking a view of the persons to 
whom patents will be granted; the different kinds of patents; the time for 
which they are granted; and the expenses attending them. 
     2.-Sec. 1. To whom patents are granted. Both foreigners and subjects 
may obtain letters-patent; but inasmuch as the applicant must accompany his 
petition by a declaration made before a master in chancery, or a master 
extraordinary in chancery, that he has made such an invention; that he is 
the true and first inventor thereof; or that it is new in the kingdom, 
according to the special circumstances of the case, the applicant must be 
present in Great Britain. 
     3.-Sec. 2 The different kinds of patents. This will be considered by 
taking a view, first, of the object of a patent, and secondly, the territory 
over which a patent extends. 
     4.-1. The thing patented must be, 1. A discovery or invention made by 
the applicant himself, in the United Kingdom. 2. The introduction or 
importation of an invention known abroad, and in this case, the introducer 
is the true and first inventor, within the realm. 3. Though not absolutely 
the true and first inventor, by reason of some one else having made the same 
invention and kept it secret, yet the invention must have been made public 
by the applicant, and as the first publisher, the applicant will be entitled 
to letters-patent. Novelty and utility are essential conditions of the 
grant, but it is of no consequence whether the discovery was known or not, 
in a country foreign to the United Kingdom. Webst. on Pat. 11 and 70, note 
w. A recent act of parliament, passed July 1, 1852, (15 & 16 Viet. cap. 83,) 
amended the English patent' system in several important particulars. The 
cardinal features of the new system are: 1, protection from the day of the 
application 2, one patent for the United Kingdom; 3, moderate cost and 
periodical payment; 4, printing and publishing of specifications; 5, one 
office of patents and specifications. Webster's New Patent Law, p. 41. By 
the 18th sec. of said act, letters patent are sealed with the great seal of 
the United Kingdom, and extend to the whole of the United Kingdom of Great 
Britain and Ireland, the Channel Islands, and the Isle of man; also, to the 
colonies or plantations, or such of them as the applicant may designate in 
his petition for the letters patent and the law officer of the crown shall 
insert, in his warrant for the sealing of the patent. The patent may bear 
date as of the, day of the application, or of the sealing, or of any 
intermediate day. The patent is granted for fourteen years, subject however 
to the condition that it shall be void at the expiration of three years and 
of seven years respectively from the date thereof, unless before the 
expiration of the said three years and seven years, stamps of the value of 
X50 and X100 respectively, be affixed to the letters patent. The cost of 
obtaining letters patent is, in the first instance, X20 if the patent is 
unopposed; if opposed, there are additional fees amounting to nearly X5. 
     By sec. 26, letters patent obtained in the United Kingdom for patented 
foreign inventions are not to continue in force after the expiration of the 
foreign patent. 

PATENT, PRUSSIAN. This subject will be considered by taking a view of the 
persons who may obtain patents; the nature of the patent; and the duration 
of the right. 
     2.-Sec. 1, Of the persons who may obtain patents. Prussian citizens 
or subjects are alone entitled to a patent. Foreigners can not obtain one. 
     3.-Sec. 2. Nature of the patents. Patents are granted in Prussia for 
an invention when the thing has been discovered or invented by the 
applicant. For an improvement, when considerable improvement has been made 
to a thing before known. And for importation, when the thing has been 
brought from a foreign country and put in use in the kingdom. Patents may 
extend over the whole country or only over a particular part. 
     4.-Sec. 3. Duration of patents. The patent may at the choice of the 
applicant, be for any period not less than six months nor more than fifteen 
years. 

PATENT, ROMAN. The Roman patents will be considered by taking a view of the 
persons to whom they may be granted; the different kinds of patents; the 
cost of a patent; and the obligations of the patentee. 
     2.-Sec. 1. To whom patents are granted. Every person, whether a 
citizen of the estates of the pope or foreigner, man or woman, adult or 
infant, may obtain a patent for an invention, for an improvement, or for 
importation, by fulfilling the conditions prescribed in order to obtain a 
grant of such titles. Persons who have received a patent from the Roman 
government may, afterwards, without any compromise of their rights or 
privileges, receive a patent in a foreign country. 
     3. The different kinds of patents. In the Roman estates there are 
granted patents for invention, for improvements, and for importations. 
     4.-1st. Patents for inventions are granted for, 1. A new kind of 
important culture. 2. A new and useful art, before unknown. 3. A new and 
useful process of culture or of manufacture. 4. A new natural production. 5. 
A new application of a means already, known. 
     5.-2d. Patents for improvements may be granted for any useful 
improvement made to inventions already known and used in the Roman states. 
     6.-3d, Patents for importations are granted in two cases, namely: 1. 
For the introduction of inventions already patented in a foreign country, 
and the privilege of which patent yet continues. 2. For the introduction of 
an invention known and freely used in a foreign country, but not yet used or 
known in the Roman states. 
     7.-3. Cost of a patent. The cost of a patent is fixed at a certain 
sum per annum, without regard to the length of time for which it may have 
been granted. It varies in relation to patents for inventions and 
importation. It is ten Roman crowns per annum for a patent for invention and 
improvement, and of fifteen crowns a year for a patent for importation. 
     8.-Sec. 4. Obligation of the patentee. He is required to bring into 
[?] his invention within one year after the grant of the patent, and not to 
suspend the supply for the space of one year during the time the privilege 
shall last. 
     9. He is required to pay one half of the tax or expense of his patent 
on receiving his patent, and the other half during the first month of the 
second portion of its, duration. 

PATENT-OFFICE. An office bearing this name was established by law, and by 
the act Of congress of July 4, 1836, which repeals all acts theretofore 
passed in relation to patents, 4 Sharsw. cont. of Story's L. U. S. 2504, it 
is provided, Sec. 1. That there shall be established and attached to the 
department of state, an office to be denominated the patent office; the 
chief officer of which shall be called the commissioner of patents, to be 
appointed by the president, by and with the advice and consent of the 
senate, whose duty it shall be, under the direction of the secretary of 
state, to superintend, execute, and perform, all such acts and things 
touching and respecting the granting and issuing of patents for new and 
useful discoveries, inventions, and improvements, as are herein provided 
for, or shall hereafter be, by law, directed to be done and performed, and 
shall have the charge and custody of all the books, records, papers, models, 
machines, and all other things belonging to said office. And said 
commissioner, shall receive the same compensation as is allowed by law to 
the commissioner of the Indian department, and shall be entitled to send and 
receive letters and packages by mail, relating to the business of the 
office, free of postage. 
     2.-Sec. 2. That there shall be in said office, an inferior officer, 
to be appointed by the said principal officer, with the approval of the 
secretary of state, to receive an annual salary of seventeen hundred 
dollars, and to be called the chief clerk of the patent-office; who in all 
cases during the necessary absence of, the commissioner, or when the said 
'principal office shall become vacant, shall have the charge and custody of 
the seal, and of the records, books, papers, machines, models, and all other 
things belonging to the said office, and shall perform the duties of 
commissioner during such vacancy. And the, said commissioner may also, with 
like approval, Appoint an examining Clerk, at an annual salary of fifteen 
hundred dollars; two other clerks at twelve hundred dollars each, one of 
whom shall be a competent draughtsman; one other clerk at one thousand 
dollars; a machinist at twelve hundred and fifty dollars; and a messenger at 
seven hundred dollars. And said commissioner, clerks, and every other person 
appointed and employed in said office, shall be disqualified, and 
interdicted from acquiring or taking, except by inheritance, daring the, 
period for which they shall hold their appointments, respectively, any right 
or interest, directly or indirectly, in any patent for an invention or 
discovery which has been, or may hereafter be granted. 
     3.-Sec. 3. That the said principal officer, and every other person to 
be appointed in the said office, shall, before he enters upon the duties of 
his office or appointment, make oath or affirmation, truly and faithfully to 
execute the trust committed to him. And the said commissioner and the chief 
clerk shall also, before entering upon their duties, severally give bond 
with sureties to the treasurer of the United States, the former in the sum 
of ten thousand dollars, and the latter, in the sum of five thousand 
dollars, with condition to render a true and faithful account to him or his 
successor in office, quarterly of all moneys which shall be by them 
respectively received for duties on patents, and for copies of records, and 
drawings, and all other moneys received by virtue of said office. 
     4.-Sec. 4. That the said commissioner shall cause a seal to be made 
and provided for the said office, with such device as the president of the 
United States shall approve, and copies of any records, books, papers, or 
drawings, belonging to the said office, under the signature of the said 
commissioner, or when the office shall be vacant, under the signature of the 
chief clerk, with the said seal affixed, shall be competent evidence in all, 
cases in which the original records, books, papers, or drawing, could be 
evidence. And any person making application therefor, may have certified 
copies of the records, drawings, and other papers deposited in said office, 
on paying, for the written copies, the sum of ten cents for, every page of 
one hundred words; and for copies of drawing, the reasonable expense of 
making the same. 

PATENTEE. He to whom a patent has been granted. The term is usually applied 
to one who has obtained letters-patent for a new invention. 
     2. His rights are, 1. To make, sell and enjoy the profits, during the 
existence, of his rights, of the invention or discovery patented. 2. To 
recover damages for a violation of such rights. 3. To have an injunction to 
prevent any infringement of such rights. 
     3. His duties are to supply the public, upon reasonable terms, with the 
thing patented. 

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

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

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

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

PATERNAL POWER. Patria potestas, The, authority lawfully exercised by 
parents, over their children. It will be proper to consider, 1. Who are 
entitled to exercise this power. 2. Who are subject to it. 3. The extent of 
this power. 
     2.-1. As a general rule the father is entitled to exert the paternal 
power over his children. But for certain reasons, when the father acts 
improperly, and against the interest of those over whom nature and the law 
have given him authority, he loses his power over them. It being a rule that 
whenever the good of the child requires it, the courts will deliver the 
custody of the children to others than the father. And numerous instances 
may be found where, for good reasons, the custody will be given to the 
mother. 
     3. The father of a bastard child has no control over him; the mother 
has the right to the custody and control of such child. 2 Mass. 109; 12 
Mass. 887. 
     4.-2. All persons are subject to this power until they arrive at the 
full age of twenty-one years. A father may, however, to, a certain extent, 
deprive himself of this unlimited paternal power, first, by delegating it to 
others, as when he binds his son an apprentice; and, secondly, when he 
abandons his children, and permits them to act for themselves. 2 Verm. Cas. 
290; 2 Watts, 408 4 S. & R. 207; 4 Mass. 675. 
     5.-3. The principle upon which the law is, founded as to the extent 
of paternal power is, that it be exerted for the benefit of the child. The 
child is subject to the lawful commands of the father to attend to his 
business, because by being so subjected he acquires that discipline and the 
practice of attending to business, which will be useful to him in after 
life. He is liable to proper correction for the same reason. 1 Bouv. Inst. 
n. 326-33. See Correction; Father; Mother; Parent. 

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

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

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

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

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

PATRICIDE. One guilty of killing his father. 

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

PATRIMONIUM, civil law. That which is capable, of being inherited. 
     2. Things capable of being possessed by a single person exclusively of 
all others, are, in the Roman or civil law, said to be in patrimonio; when 
incapable of being so possessed they are extra-patrimonium. 
     3. In general, things may be inherited, but there are some which are 
said to be extra patrimonium, or which are not in commerce. These are such 
as are common, as the light of heaven, the air, the sea, and the like. 
Things public, as rivers, harbors, roads, creeks, ports, arms of the sea, 
the, seashore, highways, bridges, and the like. Things which belong to 
cities and municipal corporations, as public squares, streets, market 
houses, and the like. See, 1 Bouv. Inst. n. 421 to 446. 

PATRIMONY. Patrimony is sometimes understood to mean all kinds of property 
but its more limited signification, includes only such estate, as has 
descended in the same family and in a still more confined sense, it is only 
that which has descended or been devised in a direct line from the father, 
and by extension, from the mother, or other ancestor. 
     2. By patrimony, patrimonium, is also understood the father's duty to 
take care of his children. Sw. pt. 3, Sec. 18, n. 31, p. 235. 

PATRINUS. A godfather. 

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

PATRONAGE. The right of appointing to office; as the patronage of the 
president of the United States, if abused, may endanger the liberties of the 
people. 
     2. In the ecclesiastical law, it signifies the right of presentation to 
a church or ecclesiastical benefice. 2 Bl. Com. 21. 

PATRONUS, Roman civil law. This word is a modification of the, Latin word 
pater, father; a denomination applied by Romulus to the first, senators of 
Rome, and which they always afterwards bore. Romulus at first appointed a 
hundred of them. Seven years afterwards, in consequence of the association 
of Tatius to the Romans, a hundred more were appointed, chosen from the 
Sabines. Tarquinius Priscus increased the number to three hundred. Those 
appointed by Romulus and Tatius were called patres majorum gentium and the 
others were called patres minorum gentium. These and their descendants 
constituted, the nobility of Rome. The rest of the people were called 
lebeians, every one of whom was obliged to choose one of these fathers as 
his patron. The relation thus constituted involved important consequences. 
The plebeian, who was called (cliens) a client, was obliged to furnish the 
means of maintenance to his chosen patron; to furnish a portion for his 
patron's daughters; to ransom him and his sons, if captured by an enemy, and 
pay all sums recovered against him by judgment, of the 'courts. The patron, 
on the other hand, was, obliged to watch over the interests of his client, 
whether present or absent to protect his person and property, and especially 
to defend him in all, actions brought against him for any cause. Neither 
could accuse or bear testimony against the other, or give contrary votes, 
&c. The contract was of a sacred nature,; the violation of it was a sort of 
treason, and punishable as such. According to Cicero, (De Repub. II. 9,) 
this relation formed an integral part of the governmental system, Et habutit 
plebem in clientelas principum descriptum, which he affirms was eminently 
useful. Blackstone traces the system of vassalage to this. ancient relation 
of patron and client. It was, in fact, of the same nature as the feudal 
institutions of the middle ages, designed to maintain order in a rising 
state by a combination of the opposing interests of the aristocracy and of 
the common people, upon the principle of reciprocal bonds for mutual 
interests, Dumazeau, Barreau Romain, Sec. III. Ultimately, by force of 
radical changes in the institution, the word patronus came to signify 
nothing more than an advocate. Id. IV 

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

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

PAUPER. One so poor that he must be supported at the public expense. 
    2. The statutes of the several states make ample provisions for the 
support of the poor. It is not within the plan of this work even to give an 
abstract of such extensive legislation. Vide 16 Vin. Ab. 259; Botts on the 
Poor Laws; Woodf. Landl. & Ten. 901. 

PAVIAGE. Contribution or tax. for paving the streets or highways. 

PAWN. A pledge. Vide Pledge. 

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

PAWNEE. He who receives a pawn or pledge. 
     2. The rights of the pawnee are to have the exclusive possession of the 
pawn; to use it, when it is for the advantage of the pawner, but, in such 
case, when he makes a profit out of it, he must account for the same. 1 Car. 
Law Rep. 8 7; 2 Murph. 
     3. The pawnee is bound to take reasonable care, of the pledge, and to 
return it to the, pawnor, when the obligation of the latter has been 
performed. 
     4. The pawnee has two remedies to enforce his claim; the first, to sell 
the pawn, after having given due notice; and, secondly, by action. See. 1 
Bouv. Inst. n. 1046, 1050. 

PAWNOR. One who, being liable to an engagement, gives to the person to whom 
he is liable, a thing to be held as a security for the payment of his debt 
or the fulfillment of his liability. 
     2. The rights of the pawnor are to redeem the pledge, at any time 
before it is sold. 
     3. His obligations are to warrant the title of the pledge, and to 
redeem it at the time agreed upon. See 1 Bouv. Inst. n. 1045. 

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

PAYMENT, contracts. That which is given to execute what has been promised; 
or it is the fulfillment of a promise. Solvere dicimus cum quis fecit, quod 
facere promisit.  But though this is the general acceptation of the word, 
yet by payment is understood, every way by which the creditor is satisfied 
or ought to be, and the debtor, liberated for example, an accord and 
satisfaction will operate as a payment. If I owe you a sum of money, for the 
security of which I give you a mortgage, and afterwards you consent to 
receive in payment a tract of land, from the moment the sale is complete, 
the first obligation, with all its accessories, is extinct, although you 
should be afterwards evicted of the property sold. 7 Toull. n. 46 2  Mart. 
Lo. Rep. N. S. 144; S. C. 2 Harr. Cond. Lo. R. 621, 624. 
     2. This subject will be considered by taking a separate view of the 
person by whom the payment may be made; to whom it may be made; when and 
where it ought to be made; how it ought to be made; the effect of the 
payment. 
     3.-1. The payment may be made by the real debtor and other persons 
from whom the creditor has a right to demand it; an agent may make payment 
for his principal; and any mode of payment by the agent, accepted and 
received as such by the creditor, as an absolete payment will have the 
effect to discharge the principal, whether known or unknown, and whether it 
be in the usual course of business or not. If, for example, a factor or 
other agent should be employed to purchase goods for his principal, or 
should be entrusted, with money to be paid for him, and, instead of 
receiving the money, the creditor or seller should take the note of the 
factor or agent; payable at a future day, as an absolute payment, the 
principal would be discharged from the debt. 3 Chit. Com. Law, 204; 1 B. & 
Ald. 14; 6 B. & C. 160; 7 B. & C. 17. When such note has been, received 
conditionally and not as an absolute payment, it would not have the effect 
of a payment by the principal; and whether so received or not is a fact to 
be decided by the jury. 1 Cowen, R, 259, 383; 9 John. R:, 310; 6 Cowen, R. 
181; 7 John. R. 311; 15 John. R. 276; 3 Wend. R. 83; 6 Wend. R. 475; 10 
Wend. R. 271; 5 John., R. 68; 1 Liverm. Ag. 207. 
     4. Payment may also be made by a third person a stranger to the 
contract. 
     5. In the payment of mortgages, it is a20rule, that the personal estate 
shall be applied to discharge them when made by the testator or intestate 
himself, to secure the payment of a debt due by him, because the personal 
estate was benefited by the money borrowed; and it makes no difference 
whether the mortgaged lands have been devised, or come to the heir by 
descent. 2 Cruise, 1 Dig. 147. The testator may, however, exempt the 
personal estate from the payment, and substitute the real in its place. But 
when the mortgage was not given by the deceased, but be acquired the real 
estate subject to it, it never was his debt, and therefore his personal 
estate is not bound to pay the mortgage debt, but it must be paid by the 
real estate. 2 Cruise, Dig. 164-8; 3 John. Chan. R. 252; 2 P. Wms. 664, n. 
1; 2 Bro. C. C. 57; 2 Bro. C. C. 101, 152; 5 Ves. jr. R. 534; 14 Ves. 417. 
     6.-2. It must be made by the creditor himself, or his assigns, if 
known, or some person authorized by him, either expressly or by implication; 
as to his factor; Cowp. 251: to his broker, 1 Maul. & Selw. 576; 4 Id. 566; 
4 Taunt. 242; 1 Stark. Ca. 238. 
     7. In the case of partners and other joint creditors, or joint 
executors or administrators, payment to one is generally a valid payment. 
When an infant is a creditor, payment must be made to his guardian. A 
payment may be good when made to a person who had no authority to receive 
it, if the creditor shall afterwards ratify it. Poth. Obl. n. 528. 
     8.-3. Time and place of payment: first, as to the time. When the 
contract is, that payment shall be made at a future time, it is clear that 
nothing can be demanded until after it has elapsed, or until any other 
condition to which the payment is subject, has been fulfilled; and in a case 
where the goods had been sold at six or nine months, the debtor had the 
option as to those two terms. 5 Taunt, 338. When no time of payment is 
mentioned in the agreement, the money is payable immediately. 1 Pet. 455; 4 
Rand. 346. 
     9. Secondly, the payment must be made at the place agreed upon in the 
contract; but in the absence of such agreement, it must be made agreeably to 
the presumed intention of the parties, which, among other things, may be 
ascertained by the nature of the thing to be paid or delivered, or by the 
custom in such cases. 
    10.-4. How the payment ought to be made. To make a valid payment, so 
as to compel the receiver to take it, the whole amount due must be paid; 
Poth. Obl. n. 499, or n. 534, French edition; when a part is accepted, it is 
a payment pro tanto. The payment must be made in the thing agreed upon; but 
when it ought to be made in money, it must be made in the lawful coin of the 
country, or in bank notes which are of the value they are represented to be. 
A payment made in bills of an insolvent bank, though both parties may be 
ignorant of its insolvency, it has been held, did not discharge the debt; 11 
Vern. 676; 6 Hill, 340; but see 1 W. & S. 92; 8 Yerg. 175; and a payment in 
counterfeit bank notes is a nullity. 2 Hawks, 326; 3 Hawks, 568, 6 Hill, 
840. In general, the payment of a part of a debt, after it becomes due, will 
not discharge the whole, although there may be an agreement by the debtor 
that it should have that effect, because there is no consideration for such 
agreement. But see 3 Kelly's R. 210, contra. A payment of a part, before it 
is due, will discharge the whole, when so agreed. 
    11.-5. The payment, when properly made, discharges the debtor from his 
obligation. Sometimes a payment extinguishes several obligations; this 
happens when the thing given to discharge an obligation was the same which 
is the object of another obligation. Poth. Obl. 552. 
    12. A single payment may discharge several debts; as, for example if 
Peter be indebted to Paul one thousand dollars, and Paul being indebted to 
James, Paul give an order to Peter to pay Tames this money; the payment made 
by Peter to James discharges both the obligations due by Peter to Paul, and 
by Paul to James. Poth. Ob. n. 553. This rule, that a payment made in order 
to acquit or discharge an obligation, extinguishes the other obligations 
which have the same object, takes place also when there are several debtors 
as regards the whole of them. If, for example, Peter trust Paul on the 
credit of James, a payment by Paul discharges both himself and James. Poth. 
Obl. n. 554. 
    13. But in case money or other things have been delivered to a person 
who was supposed to be entitles to them as a creditor, when he was not, this 
is not a payment, and the whole, if nothing was due, or if the debt was less 
than the amount paid, the surplus, may be recovered in action for money bad 
and received. Vide, generally, Bouv. Inst. Index, h.t.; Com. Dig. 473; 8 
Com. Dig. 607; 16 Vin 6; 1 Vern. by Raith. 3, 150 n. Yelv. 11 a; 1 Salk. 22; 
15 East, 12; 8 East, R. 111; 2 Ves. jr. 11; Phil. Ev. Index, b, t,; Stark. 
Ev. h.t.; Louis. Code, art. 2129; Ayl. Pand. 565; 1 Sell. Pr. 277; Dane's 
Ab. Index, h.t.; Toull. lib. 3, tit. 3, c. 5; Pardes. part 2, tit. 2, c. 1 
Merl. Repert. h.t.; Chit. Contr. Index, h.t.; 3 Eng. C. L. Rep. 130. As to 
what transfer will amount to an assignment or a payment and extinguishment 
of a claim, see 6 John. Ch. R. 395; Id. 425; 2 Ves. jr. 261 18 Ves. jr. 384; 
1 N. H. Rep. 167; 1 N. H. Rep. 252; 2 N. H. Rep. 300; 3 John. Ch. R. 53. 

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

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

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

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

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

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

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

PECULIUM, civil law. The savings which were made by a son or slave with the 
consent of his father or master. Inst. 2, 9, 1; Dig. 15, 1, 5, 3; Poth. ad 
Pand. lib. 50, tit. 17, c. 2, art. 3. 
     2. A master is not entitled to the extraordinary earnings of his 
apprentice, which do not interfere with his services so as to affect his 
master's profits. An apprentice was therefore decreed to be entitled to 
salvage in opposition to his master's claim for it. 2 Cranch, 270. 

PECUNIA, civil law, property By the term was understood, 1. Money. 2. Every 
thing which constituted the private property of an individual, or which was 
a part of his fortune; a slave' a field, a house, and the like, were so 
considered. 
     2. It is in this sense the law of the Twelve Tables said; Uti quisque 
pater familias legassit super pecunia tutelare rei suae, ita jus esto. In 
whatever manner a father of a family may have disposed of his property, or 
of the tutorship of his things, let this disposition be law. 1 Lecons Elem. 
du Dr. Civ. Rom. 288. 
     3. Flocks were the first riches of the ancients, and it is from pecus 
that the words pecania, peculium, peculatus, are derived. Co. Litt. 207. 

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

PEDIGREE, descents. A succession of degrees from the origin; it is the state 
of the family as far as regards the relationship of the different members, 
their births, marriages and deaths; this term is applied to persons or 
families, who trace their origin or descent. 
     2. On account of the difficulty of proving in the ordinary manner by 
living witnesses, facts which occurred in remote times, hearsay evidence 
(q.v.) has been admitted to prove a pedigree. 1 Phil. Ev. 186; 1 Stark. Ev. 
55; 10 Serg. & Rawle, 383; 2 Supp. to Ves. jr. 110; 8 Com. Dig. 583 1 Pet. 
337; 6 Pet., 81; 13 Pet. 209 1 Wheat. 6; 3 Wash. C. C. R. 243; 4 
Wash.C.C.R.186; 3Bouv.Inst.n. 3067. Vide Descent; Line. 

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

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

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

PEERESS. A noblewoman, the wife of a peer. 

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

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

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

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

PENALTY, contr. A clause in an agreement, by which the obligor agrees to pay 
a certain sum of money, if he shall fail to fulfill the contract contained 
in another clause of the same agreement. 
     2. A penal clause in an agreement supposes two obligations, one of 
which is the primitive or principal; and the other, is, conditional or 
accessory. 
     3. The penal obligation differs from an alternative obligation, for 
this is but one in its essence; while a penalty always includes two distinct 
engagements, and, when the first is fulfilled, the second is void. When a 
breach has taken place, the obligee has his option to require the 
fulfillment of the first obligation, or' the payment of the penalty, in 
those cases which cannot be relieved in equity, when the penalty is 
considered as liquidated damages. Dalloz, Dict. mots Obligation avec clause 
penale. 
     4. It is difficult, in many cases, to distinguish between a penalty and 
liquidated damages. In general, the courts have inclined to consider the sum 
reserved by such agreement to be a penalty, rather than as stipulated 
damages. (q.v.) 
     5. The sum will be considered as a penalty, and not as liquidated 
damages, in the following cases: 1. When the parties to the agreement have 
expressly declared the sum to be a penalty, and no other intent is to be 
collected from the instrument. 2 Bos. & P. 346; 1 H. Bl. 227; 1 Pick. 45 1; 
4 Pick. 179; 7 Wheat. 14; 3 John. Cases, 297. 2. When from the form of the 
instrument, as in the case of a money bond, it is sufficiently clear a 
penalty was intended. 
     3. When it is doubtful whether the sum was intended as a penalty or 
not, and a certain damage or debt is made payable on the face of the 
instrument. 2 B. & P. 350; 3 C. & P. 240. 4. When the agreement was 
evidently made for the attainment of another object, to which the sum, 
specified is wholly collateral, 11 Mass. 76; 15 Mass. 488; 1 Bro. C. C. 418, 
419. 5. When the agreement contains several matters, of different degrees of 
importance, and yet the sum mentioned is payable for the breach of any, even 
the least. 6 Bing. 141; 5 Bing. N. C. 390; 7 Scott, 364. 6. When the 
contract is not under seal, and the damages may be ascertained and 
estimated; and this though the parties have expressly declared the sum to be 
as liquidated damages. 2B. & Ald. 704; 6 B. & C. 216; 4 Dall. 150; 5 Cowen, 
144. See 2 Greenl. Ev. 258. 1 Holt N. P. C. 43 1 Bing. R. 302; S. C. 8 
Moore, 244; 4 Burr. 2229. 
     6. The penalty remains unaffected, although the condition may have been 
partially performed; as in a case where the penalty was one thousand 
dollars, and the condition was to pay an annuity of one hundred dollars, 
which had been paid for ten years; the penalty was still valid. 5 Verm. 365. 
     7. A distinction seems to be made in courts of equity between penalties 
and forfeitures. In cases of forfeiture for the breach of any covenant other 
than a covenant to pay rent, relief will not be granted in equity, unless 
upon the ground of accident, fraud, mistake, or surprise, when the breach is 
capable of compensation. Edin. on Inj. 22; 16 Ves. 403; S. C. 18 Ves. 58 3 
Ves. 692; 4 Bouv. List. n. 3915. 
     8. By penalty is understood, also, the punishment inflicted by law for 
its violation; the term is mostly applied to a pecuniary punishment. See 6 
Pet. 404; 10 Wheat. 246; 1 Gall. R. 26; 2 Gall. R. 515; 1 Mason, R. 243; 3 
John. Cas. 297: R. 451; 15 Mass. 488; 7 John. 72 4 Mass. 433; 8 Mass. 223; 8 
Com. Dig. 846; 16 Vin. Ab. 301; 1 Vern. 83, n.; 1 Saund. 58, n.; 1 Swans. 
318; 1 Wash. C. C. R. 1; 2 Wash. C. C. R. 323; Paine, C. C. R. 661; 7 Wheat. 
13. See, generally, Bouv. Inst. Index, h.t. 

PENANCE, eccl. law. An ecclesiastical punishment, inflicted by an 
ecclesiastical court, for some spiritual offence. Ayl. Par. 420. 

PENCIL. An instrument made of plumbago, black lead, red chalk, or other 
suitable substance, for writing without ink. 
     2. It has been holden that a will written with a pencil, could riot, on 
this account, be annulled. 1 Phillim. R. 1; 2 Phillim. 173. 

PENDENTE LITE. Pending the continuance of an action, while litigation 
continues. 
     2. An administrator is appointed, pendente lite, when a will is 
contested. 2 Bouv. Inst. n. 1557. Vide Administrator. 

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

PENETRATION, crimes. The act of inserting the penis into the female organs 
of generation. 9 Car. & Pa 118; S. C. 38 E. C. L. R. 63. See 8 Car. & Payne, 
614; 34 E. C. L. R. 562; 5 C. & P. 321; S. C. 24 E, C. L. R. 339; 9 C. & P. 
31 Id. 752; 38 E. C. L. R. 320. But in order to commit the crime of rape, it 
is requisite that the penetration should be such as to rupture the hymen. 5 
C. & P. 321. 
     2. This has been denied to be sufficient to constitute a rape without 
emission. (q.v.) Bee, on this subject, 12 Co. 37; Hawk. bk 1, c. 41, s. 3; 1 
Hale, P. C. 628; 1 East, P. C. 437, 8; Russ & Ry. C. C. 519; 6 C. & P. 351; 
5 C. & P. 297, 321; S. C. 24 E. C. L. R. 339; 1 Chit. Med. Jur. 386 to 395; 
1 Virg. Cas. 307; 4 Mood. Cr. Cas. 142, 337; 4 Car. & P. 249; 1 Par. & Fonb. 
433; 2 Mood. & M. C. N. P. 122; 1 Russ. C. & M 560; 1 East, P. C. 437. 

PENITENTIARY. A prison for the punishment of convicts. 
     2. There are two systems of penitentiaries in the United States, each 
of which is claimed to be the best by its partisans: the Pennsylvania system 
and the New York system. By the former, convicts are lodged in separate, 
well lighted, and well ventilated cells, where they are required to work, 
during stated hours. During the whole time of their confinement, they are 
never permitted to see or speak with each other. Their usual employments are 
shoemaking, weaving, winding yarn, picking wool, and such like business. The 
only punishments to which convicts are subject, are the privation of food 
for short periods, and confinement without labor in dark, but well aired 
cells; this discipline has been found sufficient to keep perfect order; the 
whip and all other corporal punishments are prohibited. The advantages of 
the plan are numerous. Men cannot long remain in solitude without labor 
convicts, when deprived of it, ask it as a favor, and in order to retain it, 
use, generally, their best exertions to do their work well; being entirely 
secluded, they are of course unknown to their fellow prisoners, and can form 
no combination to escape while in prison, or associations to prey upon 
society when they are out; being treated with kindness, and afforded books 
for their instruction and amusement, they become satisfied that society does 
not make war upon them, and, more disposed to return to it, which they are 
not prevented from doing by the exposure of their fellow prisoners, when in 
a strange place; the labor of the convicts tends greatly to defray the 
expenses of the prison. The disadvantages which were anticipated have been 
found, to be groundless.; Among these were, that the prisoners would be 
unhealthy; experience has proved the contrary; that they would become 
insane, this has also been found to be otherwise; that solitude is 
incompatible with the performance of business; that obedience to the 
discipline of the prison could not be enforced. These and all other 
objections to this system are, by its friends, believed to be without force. 
     3. The New York system, adopted at Auburn, which was probably copied 
from the penitentiary at Ghent, in the Netherlands, called La Maison de 
Force, is founded on the system of isolation and separation, as well as that 
of Pennsylvania, but with this difference, that in the former the prisoners 
are confined to their separate cells during the night only; during the 
working hours in the day time they labor together in work shops appropriated 
to their use. They cat their meals together, but in such a manner as not to 
be able to speak with each other. Silence is also imposed upon them at their 
labor. They perform the labor of carpenters, blacksmiths, weavers, 
shoemakers, tailors, coopers, gardeners, wood sawyers, &c. The discipline of 
the prison is enforced by stripes, inflicted by the assistant keepers, on 
the backs of the prisoners, though this punishment is rarely exercised. The 
advantages of this plan are, that the convicts are in solitary confinement 
during the night; that their labor, by being joint, is more productive; 
that, inasmuch as a clergyman is employed to preach to the prisoners, the 
system affords an, opportunity for mental and moral improvements. Among the 
objections made to it are, that the prisoners have opportunities of 
communicating with each other, and of forming plans of escape, and when they 
are out of prison, of associating together in consequence of their previous 
acquaintance, to the detriment of those who wish to return to virtue, and to 
the danger of the public; that the discipline is degrading, and that it 
engenders bitter resentment in the mind of the convict. Vide, generally, on 
the subject of penitentiaries, Report of the Commissioners (Messrs. King, 
Shaler, and Wharton,) on the Penal Code of Pennsylvania; De Beaumont and De 
Toqueville, on the Penitentiary System of the United States; Mease on the 
Penitentiary System of Pennsylvania; Carey on ditto; Reports of the Boston 
Prison Discipline Society; Livingston's excellent Introductory Report to the 
Code of Reform and Prison Discipline, prepared for the state of Louisiana; 
Encycl. Americ. art. Prison Discipline; De. I'Etat Actuel des Prisons en 
France, par L. M. More au Christophe; Dalloz, Dict. mot Peine, Sec. 1, n. 3, 
and Supplem. mots Prisons et Bagnes. 

PENNSYLVANIA. The name of one of the original states of the United States of 
America. Pennsylvania was occupied by planters of various nations, Dutch 
Swedes, English, and others; but obtained no separate name until the year 
1681, when Charles II. granted a charter to William Penn, by which he became 
its proprietary, saving, however, allegiance to the crown, which retained 
the sovereignty of the country. This charter authorized the proprietary, his 
heirs and successors, by and with the assent of the freemen of the country, 
or their deputies assembled for the purpose, to make laws. Their laws were 
required to be consonant to reason, and not repugnant or contrary, but as 
near as conveniently could be to the laws and statutes of England. 
Pennsylvania was governed by this charter till the period of the Revolution. 
     2. The constitution of the state was adopted on the second day of 
September, 1790, and amended by a convention selected by the people, on the 
twenty-second day of February, 1838. The powers of the government are 
divided into three distinct branches: the legislative, the executive and the 
judiciary. 
     3.-1st. The legislative power is vested in a general assembly, which 
consists of a senate and house of representatives. 
     4.-1. The senate will be considered with reference to the 
qualification of the electors; the qualification of the members; the length 
of time for which they are elected; and the time of their election. 1. In 
elections by the citizens, every white freeman of the age of twenty-one 
years having resided in this state one year, and in the election district 
where he offers to vote ten days immediately preceding such election, and 
within two years paid a state or county tax, which shall have been assessed 
at least ten days before the election, shall enjoy the rights of an elector. 
But a citizen of the United States who had previously been a qualified voter 
of this state and removed therefrom and returned, and who shall have resided 
in the election district and paid taxes as aforesaid, shall be entitled to 
vote after residing in the state six months: Provided, that white freemen, 
citizens of the United States, between the ages of twenty-one and twenty-two 
years, and having resided in the state one year, and in the election 
district ten days as aforesaid, shall be entitled to vote although they 
shall not have paid taxes. Art. 3, s. 1. 2. No person shall be a senator who 
shall not have attained the age of twenty-five years, and have been a 
citizen and inhabitant of the state four years next before his election, and 
the last year thereof an inhabitant of the district for which he shall be 
chosen, unless he shall have been absent on the public business of the 
United States or of this state; and no person elected as aforesaid, shall 
hold the said office after he shall have removed from such district. Art. 1, 
s. 8. 3. The number of senators shall never be less than one-fourth, nor 
greater than one-third of the number of representatives. Art. 1, s. 6. 4. 
The senators hold their office for three years. 
     5. Their election takes place on the second Tuesday of October, one-
third of the senate each year. 
     6.-2. The house of representatives will be treated of in the same 
manner which has been observed in considering the senate. 1. The electors 
are qualified in the same manner as the electors of the senate. 2. No person 
shall be a representative who shall Dot have attained the age of twenty-one 
years, and have been a citizen and inhabitant of the state three years next 
preceding his election, and the last year thereof an inhabitant of the 
district in and for which he shall be chosen a representative, unless be 
shall have been absent on the public business of the United States or of 
this state. Art. 1, s. 3. 3. The number of representatives shall never be 
less than sixty, nor greater than one hundred. Art. 1, s. 4. 4. They are 
elected yearly. 5. Their election is on the second Tuesday of October, 
yearly. 
     6.-2d. The supreme executive power of this commonwealth is vested in 
a governor. 1. He is elected by the electors of the legislature. 2. He must 
be at least thirty years of age, and have been a citizen and an inhabitant 
of the state seven years next before his election, unless he shall have been 
absent on the public business of the United States or of this state. Art. 2, 
s. 4. 3. The governor shall hold his office during three years from the 
third Tuesday of January next ensuing his election, and shall not be capable 
of holding it longer than six in any term of nine years. Art. 2, s. 3. 4. 
His principal duties are enumerated in the second article of the 
constitution, as follows: The governor shall at stated times receive for his 
services a compensation which shall be neither increased or diminished 
during the period for which he shall have been elected. He shall be 
commander-in-chief of the army and navy of this commonwealth, and of the 
militia, except when they shall be called into the actual service of the 
United States. He shall appoint a secretary of the commonwealth during 
pleasure; and he shall nominate, and by and with the advice and consent of 
the senate appoint, all judicial officers of courts of record, unless 
otherwise provided for in this constitution. He shall have power to fill all 
vacancies that may happen in such judicial offices during the recess of the 
senate, by granting commissions which shall expire at the end of their next 
session: Provided, that in acting on executive nominations the senate shall 
sit with open doors, and in confirming or rejecting the nominations of the 
governor, the vote shall be taken by yeas and nays. He shall have power to 
remit fines and forfeitures, and grant reprieves and pardons, except in 
cases of impeachment. He may require information in writing from the 
officers in the executive department, upon any subject relating to the 
duties of their respective offices. He shall, from time to time, give to the 
general assembly information of the state of the commonwealth, and recommend 
to their consideration such measures as he shall judge expedient. He may, on 
extraordinary occasions, convene the general assembly; and, in case of 
disagreement between the two houses with respect to the time of adjournment, 
adjourn them to such time as he shall think proper, not exceeding four 
months. He shall take care that the laws be faithfully executed. In case of 
the death or resignation of the governor, or of his removal from office, the 
speaker of the senate shall exercise the office of governor until another 
governor shall be duly qualified; but in such case another governor shall be 
chosen at the next annual election of representatives, unless such death, 
resignation or removal shall occur within three calendar months, immediately 
preceding such next annual election, in which case a governor shall be 
chosen at the second succeeding annual election of representatives. And if 
the trial of a contested election shall continue longer than until the third 
Monday of January next ensuing the election of governor, the governor of the 
last year, or the speaker of the senate who may be in the exercise of the 
executive authority, shall continue therein until the determination of such 
contested election, and until a governor shall be duly qualified as 
aforesaid. 
     7.-3d. The judicial power of the commonwealth is vested by the fifth 
article of the constitution as follows: 
     Sec. 1. The judicial power of this commonwealth shall be vested in a 
supreme Court, in courts of oyer and terminer and general jail delivery, in 
a court of common pleas, orphans' court, register's court, and a court of 
quarter sessions of the peace, for each county in justices of the peace, and 
in such other courts as the legislature may from time to time establish. 
     8.-Sec. 2. By an amendment to this constitution, the judges of the 
supreme court, of the several courts of common pleas, and of such other 
courts of record as are or shall be established by law, shall be elected by 
the qualified electors, as provided by act of April 15, 1851. Pam. Laws, 
648. The judges of the supreme court shall hold their offices for the term 
of fifteen years if they shall so long behave themselves well. The president 
judges of the several courts of common pleas and of such other courts of 
record as are or shall be established by law, and all other judges required 
to be learned in the law, shall hold their offices for the term of ten years 
if they shall so long behave themselves well. The associate judges of the 
courts of common pleas shall hold their offices for the term of five years 
if they shall so long behave themselves well. But for any reasonable cause 
which shall not be sufficient ground of impeachment, the governor may remove 
any of them on the address of two-thirds of each branch of the legislature. 
The judges of the supreme court and the presidents of the several courts of 
common pleas, shall at stated times receive for their services an adequate 
compensation to be fixed by law, which shall not be diminished during their 
continuance in office, but they shall receive no fees or prerequisites of 
office, nor hold any other office of profit under this commonwealth. 
     9.-Sec. 3. Until otherwise directed by law, the courts of common 
pleas shall continue as at present established. Not more than five counties 
shall at any time be included in one judicial district organized for said 
courts. 
    10.-Sec. 4. The jurisdiction of the supreme court shall extend over 
the state; and the judges thereof shall, by virtue of their offices be 
justices of oyer and terminer and general jail delivery, in the several 
counties. 
    11.-Sec. 5. The judges of the court of common pleas, in each county, 
shall, by virtue of their offices, be justices of oyer and terminer and 
general jail delivery, for the trial of capital and other offenders therein; 
any two of the said judges, the president being one, shall be a quorum; but 
they shall not hold a court of oyer and terminer, or jail delivery, in any 
county, when the judges, of the supreme court, or any of them, shall be 
sitting in the same county. The party accused, as well as the commonwealth, 
may, under such regulations as shall be prescribed by law, remove the 
indictment and proceedings, or a transcript thereof, into the supreme court, 
    12.-Sec. 6. The supreme court, and the several courts of common pleas, 
shall, besides the powers heretofore usually exercised by them, have the 
power of a court of chancery, so far as relates to the perpetuating If 
testimony, the obtaining of evidence from places not within the state, and 
the care of the persons and estates of those who are non compotes mentis. 
And the legislature shall vest in the said courts such other powers to grant 
relief in equity, as shall be found necessary; and may, from time to time, 
enlarge or diminish those powers, or vest them in such other courts as they 
shall judge proper for the due administration of justice. 
    13,-Sec. 7. The judges of the court of common pleas of each county, 
any two of whom shall be a quorum, shall compose the court of quarter 
sessions of the peace, and orphans' court thereof: and the register of 
wills, together with the said judges, or, any two of them, shall compose the 
register's court of each county. 
    14.-Sec. 8. The judges of the courts of common pleas shall, within 
their respective counties, have the like powers with the judges of the 
supreme court, to issue writs of certiorari to the justices of the peace, 
and to cause their proceedings to be brought before them, and the like right 
and justice to be done. 
    15.-Sec. 9. The president of the court in each circuit within such 
circuit, and the judges of the court of common pleas within their respective 
counties, shall be justices of the peace, so far as relates to criminal 
matters. 
    16.-Sec. 10. A register's office, for the probate of wills and 
granting letters of administration, and an office for the recording of 
deeds, shall be kept in each county. 
    17.-Sec. 11. The style of all process shall be "The commonwealth of 
Pennsylvania." All prosecutions shall be carried on in the name and by the 
authority of the commonwealth of Pennsylvania, and conclude, "against the 
peace and dignity of the same." 

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

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

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

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

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

PEOPLE. A state; as, the people of the state of New York; a nation in its 
collective and political capacity. 4 T. R. 783. See 6 Pet. S. C. Rep. 467. 
     2. The word people occurs in a policy of insurance. The insurer insures 
against "detainments of all kings, princes and people." He is not by this 
understood to insure against any promiscuous or lawless rabble which may be 
guilty of attacking or detaining a ship. 2 Marsh. Ins. 508.  Vide Body 
politic; Nation. 

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

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

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

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

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

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

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

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

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

PERAMBULATIONE FACIENDA, WRIT DE, Eng. law. The name of a writ which is sued 
by consent of both parties, when they are in doubt as to the bounds of their 
respective estates; it is directed to the sheriff to make perambulation, and 
to set the bounds and limits between them in certainty. F. N. B. 309. 
     2. "The writ de perambulatione facienda is not known to have been 
adopted in practice in the United States," says Professor Greenleaf, Ev. 
Sec. 146 note, "but in several of the states, remedies somewhat similar in 
principle have been provided by statutes." 

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

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

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

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

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

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

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

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

PERFORMANCE. The act of doing something; the thing done is also called a 
performance; as, Paul is exonerated from the obligation of his contract by 
its performance. 
     2. When it contract has been made by parol, which, under the statute of 
frauds and perjuries, could not be enforced, because it was not in writing, 
and the party seeking to avoid it, has received the whole or a part 
performance of such agreement, he cannot afterwards avoid it; 14 John. 15; 
S. C. 1 John. Ch. R. 273; and such part performance will enable the other 
party to prove it aliunde. 1 Pet. C. C. R. 380; 1 Rand. R. 165; 1 Blackf. R. 
58; 2 Day, R. 255; 1 Desaus. R. 350; 5 Day, R. 67; 1 Binn. R. 218; 3 Paige, 
R. 545; 1 John. Ch. R. 131, 146. Vide Specific performance. 

PERIL. The accident by which a thing is lost Lee,. Dr. Rom. 911. 

PERILS OF THE SEA, contracts. Bills of lading generally contain an exception 
that the carrier shall not be liable for "perils of the sea." What is the 
precise import of this phrase is not perhaps very exactly settled. In a 
'strict sense, the words perils of the sea, denote the natural accidents 
peculiar to the sea; but in more than one instance they have been held to 
extend to events not attributable to natural causes. For instance, they have 
been held to include a capture by pirates on the high sea and a case of loss 
by collision by two ships, where no blame is imputable to either, or at all 
events not to the injured ship. Abbott on Sh. P. 3, C. 4 Sec. 1, 2, 3, 4, 5, 
6; Park. Ins. c, 3; Marsh. Ins. B. 1, c. 7, p. 214; 1 Bell's Comm. 579; 3 
Kent's Comm. 251 n. (a); 3 Esp. R. 67. 
     2. It has indeed been said, that by perils of the sea are properly 
meant no other than inevitable perils or accidents upon the sea, and, that 
by such perils or accidents common carriers are, prima facie, excused, 
whether there be a bill of lading containing the expression of "peril of the 
sea," or not. 1 Conn. Rep. 487. 
     3. It seems that the phrase perils of the sea, on the western waters of 
the United States, signifies and includes perils of the river. 3 Stew. & 
Port. 176. 
     4. If the law be so, then the decisions upon the meaning of these words 
become important in a practical view in all cases of maritime or water 
carriage. 
     5. It seems that a loss occasioned by leakage, which is caused by rats 
gnawing a hole in the bottom of the vessel, is not, in the English law, 
deemed a loss by peril of the sea, or by inevitable casualty. 1 Wils. R. 
281; 4 Campb. R. 203. But if the master had used all reasonable precautions 
to prevent such loss, as by having a cat on board, it seems agreed, it would 
be a peril of the sea, or inevitable accident. Abbott on Ship. p. 3, c. 3, 
Sec. 9; but see 3 Kent's Comm. 243, and note c. In conformity to this rule, 
the destruction of goods at sea by rats has, in Pennsylvania, been held a 
peril of the sea, where there has been no default in the carrier. 1 Binn. 
592. But see 6 Cowen, R. 266, and 3 Kent's Com. 248, n. c. On the other 
hand, the destruction of a ship's bottom by worms in the course of a voyage, 
has, both in America and England, been deemed not to be a peril of the sea, 
upon the ground, it would seem, that it is a loss by ordinary wear and 
decay. Park. on Ins. c. 3; 1 Esp. R. 444; 2 Mass. R. 429 but see 2 Cain. R. 
85. See generally, Act of God; Fortuitous Event;. Marsh. Ins. eh. 7; and ch. 
12, Sec. 1.; Hildy on Mar. Ins. 270. 

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

TO PERISH. To come to an end; to cease to be; to die. 
     2. What has never existed cannot be said to have perished. 
     3. When two or more persons die by the same accident, as a shipwreck, 
no presumption arises that one perished before the other. Vide Death. 
Survivorship. 

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

PERJURY, crim. law. This offence at common law is defined to be a willful 
false oath, by one who being lawfully required to depose the truth in any 
judicial proceedings, swears absolutely in a matter material to the point in 
question, whether he be believed or not. 
     2. If we analyze this definition we will find, 1st. That the oath must 
be willful. 2d. That it must be false. 3d. That the party was lawfully 
sworn. 4th. That the proceeding was judicial. 6th. That the assertion was 
absolute. 6th. That the falsehood was material to the point in question. 
     3.-1. The intention must be willful. The oath must be taken and the 
falsehood asserted with deliberation, and a consciousness of the nature of 
the statement made; for if it has arisen in consequence of inadvertency, 
surprise or mistake of the import of the question, there was no corrupt 
motive; Hawk. B. 1, c. 69, s. 2; but one who swears willfully and 
deliberately to a matter which he rashly believes, which is false, and which 
he had no probable cause for believing, is guilty of perjury. 6 Binn. R. 
249. See 1 Baldw. 370; 1 Bailey, 50. 
     4.-2. The oath must be false. The party must believe that what he is 
swearing is fictitious; for, if intending to deceive, he asserts that which 
may happen to be true, without any knowledge of the fact, he is equally 
criminal, and the accidental truth of his evidence will not excuse him. 3 
Inst. 166 Hawk. B. 1, c. 69, s. 6. 
     5.-3. The party must be lawfully sworn. The person by whom the oath 
is administered must have competent authority to receive it; an oath, 
therefore, taken before a private person, or before an officer having no 
jurisdiction, will not amount to perjury. 3 Inst. 166; 1 Johns. R. 498; 9 
Cowen, R. 30; 3 McCord, R. 308; 4 McCord, It. 165; 2 Russ. on Cr. 520; 3 
Carr. & Payne, 419; S. C. 14 Eng. Com. Law Rep. 376; 2 Chitt. Cr. Law, 304; 
4 Hawks, 182; 1 N. & M. 546; 3 McCord, 308; 2 Hayw. 56; 8 Pick. 453. 
     6.-4. The proceedings must be judicial. Proceedings before those who 
are in any way entrusted with the administration of justice, in respect of 
any matter regularly before them, are considered as judicial for this 
purpose. 2 Chitt. Crim. C. 303; 2 Russ. on Cr. 518; Hawk. B. 1, c. 69, s. 3. 
Vide 3 Yeates, R. 414; 9 Pet. Rep. 238. Perjury cannot therefore be 
committed in a case of which the court had no jurisdiction. 4 Hawks, 182; 2 
Hayw. 56; 3 McCord, 308; 8 Pick. 453: 1 N. & McC. 546. 
     7.-5. The assertion must be absolute. If a man, however, swears that 
he believes that to be true which he knows to be false, it will be perjury. 
2 Russ. on Cr. 518; 3 Wils. 427; 2 Bl. Rep. 881; 1 Leach, 242; 6 Binn. Rep. 
249; Lofft's Gilb. Ev. 662. 
     8.-6. The oath must be material to the question depending. Where the 
facts sworn to are wholly foreign from the purpose and altogether immaterial 
to the matter in question, the oath does not amount to a legal perjury. 2 
Russell on Cr. 521; 3 Inst. 167; 8 Ves. jun. 35; 2 Rolle, 41, 42, 369; 1 
Hawk. B. 1, c. 69, s. 8; Bac. Ab. Perjury, A; 2 N. & M. 118; 2 Mis. R. 158. 
Nor can perjury be assigned upon the valuation under oath, of a jewel or 
other thing, the value of which consists in estimation. Sid. 146; 1 Keble, 
510. 
     9. It is not within the plan of this work to cite all the statutes 
passed by the general government, or the several states on the subject of 
perjury. It is proper, however, here to transcribe a part of the 13th 
section of the act of congress of March 3, 1825, which provides as follows: 
"If any person in any case, matter, bearing, or other proceeding, when an 
oath or affirmation shall be required to be taken or administered under or 
by any law or laws of the United States, shall, upon the taking of such oath 
or affirmation, knowingly and willingly swear or affirm falsely, every 
person, so offending, shall be deemed guilty of perjury, and shall, on 
conviction thereof, be punished by fine, not exceeding two thousand dollars, 
and by imprisonment and confinement to bard labor, not exceeding five years, 
according to the aggravation of the offence. And if any person or persons 
shall knowingly or willingly procure any such perjury to be committed, every 
person so offending shall be deemed guilty of subornation of perjury, and 
shall on conviction thereof, be punished. by fine, not exceeding two 
thousand dollars, and by imprisonment and confinement to bard labor, not 
exceeding five years, according to the aggravation of the offence." 
    10. In general it may be observed that a perjury is committed as well by 
making a false affirmation, as a false oath. Vide, generally, 16 Vin. Abr. 
307; Bac. Abr. h.t.; Com. Dig. Justices of the Peace, B 102 to 106; 4 Bl. 
Com. 137 to 139; 3 Inst. 163 to 168; Hawk. B. 1, c. 69; Russ. on Cr. B. 5, 
c. 1; 2 Chitt. Cr. L. c. 9; Roscoe on Cr. Ev. h.t.; Burn's J. h.t. Williams' 
J. h.t. 

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

PERMISSION. A license to do a thing; an authority to do an act which without 
such authority would have been unlawful. A permission differs from a law, it 
is a cheek upon the operations of the law. 
     2. Permissions are express or implied. 1. Express permissions derogate 
from something which before was forbidden, and may operate in favor of one 
or more persons, or for the performance of one or more acts, or for a longer 
or shorter time. 2. Implied, are those, which arise from the fact that the 
law has not forbidden the act to be done. 3. But although permissions do not 
operate as laws, in respect of those persons in whose favor they are 
granted; yet they are laws as to others. See License. 

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

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

PERMUTATION, civil law. Exchange; barter. 
     2. This contract is formed by the consent of the parties, but delivery 
is indispensable; for, without it, it mere agreement. Dig. 31, 77, 4; Code, 
4, 64, 3. 
     3. Permutation differs from sale in this, that in the former a delivery 
of the articles sold must be made, while in the latter it is unnecessary. It 
agrees with the contract of sale, however, in the following particulars: 1. 
That he to whom the delivery is made acquires the right or faculty of 
prescribing. Dig. 41, 3, 4, 17. 2. That the contracting parties are bound to 
guaranty to each other the title of the things delivered. Code, 4, 64, 1. 3. 
That they are bound to take back the things delivered, when they have latent 
defects which they have concealed. Dig. 21, 1, 63. See Aso & Man. Inst. B. 
2, t. 16, c. 1; Nutation; Transfer. 

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

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

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

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

PERPETUITY, estates. Any limitation tending to take the subject of it out of 
commerce for a longer period than a life or lives in being, and twenty-one 
years beyond; and in case of a posthumous child, a few months more, allowing 
for the term of gestation; Randall on Perpetuities, 48; or it is such a 
limitation of property as renders it unalienable beyond the period allowed 
by law. Gilbert on Uses, by Sugden, 260, note. 
     2. Mr. Justice Powell, in Scattergood v. Edge, 12 Mod. 278, 
distinguished perpetuities into two sorts, absolute and qualified; meaning 
thereby, as it is apprehended, a distinction between a plain, direct and 
palpable perpetuity, and the case where an estate is limited on a 
contingency, which might happen within a reasonable compass of time, but 
where the estate nevertheless, from the nature of the limitation, might be 
kept out of commerce longer than was thought agreeable to the policy of the 
common law. But this distinction would not now lead to a better 
understanding or explanation of the subject; for whether an estate be so 
limited that it cannot take effect, until a period too much protracted, or 
whether on a contingency which may happen within a moderate compass of time, 
it equally falls within the line of perpetuity and the limitation is 
therefore void; for it is not sufficient that an estate may vest within the 
time allowed, but the rule requires that it must. Randall on Perp. 49. Vide 
Cruise, Dig. tit. 32, c. 23; 1 Supp. to Ves. Jr. 406; 2 Ves. Jr. 357; 3 
Saund. 388 h. note; Com. Dig. Chancery, 4 G 1; 3 Chan. Cas. 1; 2 Bouv. Inst. 
n. 1890. 

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

PERSON. This word is applied to men, women and children, who are called 
natural persons. In law, man and person are not exactly synonymous terms. 
Any human being is a man, whether he be a member of society or not, whatever 
may be the rank he holds, or whatever may be his age, sex, &c. A person is a 
man considered according to the rank he holds in society, with all the 
rights to which the place he holds entitles him, and the duties which it 
imposes. 1 Bouv. Inst. n. 137. 
     2. It is also used to denote a corporation which is an artificial 
person. 1 Bl. Com. 123; 4 Bing. 669; C. 33 Eng. C. L R. 488; Woodes. Lect. 
116; Bac. Us. 57; 1 Mod. 164. 
     3. But when the word "Persons" is spoken of in legislative acts, 
natural persons will be intended, unless something appear in the context to 
show that it applies to artificial persons. 1 Scam. R. 178. 
     4. Natural persons are divided into males, or men; and females or 
women. Men are capable of all kinds of engagements and functions, unless by 
reasons applying to particular individuals. Women cannot be appointed to any 
public office, nor perform any civil functions, except those which the law 
specially declares them capable of exercising. Civ. Code of Louis. art. 25. 
     5. They are also sometimes divided into free persons and slaves. 
Freemen are those who have preserved their natural liberty, that is to say, 
who have the right of doing what is not forbidden by the law. A slave is one 
who is in the power of a master to whom he belongs. Slaves are sometimes 
ranked not with persons but things. But sometimes they are considered as 
persons for example, a negro is in contemplation of law a person, so as to 
be capable of committing a riot in conjunction with white men. 1 Bay, 358. 
Vide Man. 
     6. Persons are also divided into citizens, (q.v.) and aliens, (q.v.) 
when viewed with regard to their political rights. When they are considered 
in relation to their civil rights, they are living or civilly dead; vide 
Civil Death; outlaws; and infamous persons. 
     7. Persons are divided into legitimates and bastards, when examined as 
to their rights by birth. 
     8. When viewed in their domestic relations, they are divided into 
parents and children; husbands and wives; guardians and wards; and masters 
and servants son, as it is understood in law, see 1 Toull. n. 168; 1 Bouv. 
Inst. n. 1890, note. 

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

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

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

PERSONAL LIBERTY. Vide Liberty. 

PERSONAL PROPERTY. The right or interest which a man has in things personal; 
it consists of things temporary and movable, and includes all subjects of 
property not of a freehold nature, nor descendable to the heirs at law. 
Things of a movable nature, when a right can be had in them, are personal 
property, but some things movable are not the subject of property; as light 
and air. Under the term personal property, is also included some property 
which is in its nature immovable, distinguished by the name of chattels 
real, as an estate for years; and fixtures (q.v.) are sometimes classed 
among personal property. A crop growing in the ground is considered personal 
property. so far as not to be considered an interest in land, under the 
statute of frauds. 11 East, 362; 1 Shopl. 337; 5 B & C. 829; 10 Ad. & E. 
753; 9 B. & C. 561; sed vide 9 B. & C. 561. 
     2. It is a general principle of American law, that stock held in 
corporations, is to be considered as personal property; Walk. Introd. 211; 4 
Dane's Ab. 670; Sull. on Land Tit. 71; 1 Hill. Ab. 18; though it was held 
that such stock was real estate; 2 Conn. R. 567; but, this being found 
inconvenient, the law was changed by the legislature. 
     3. Property in personal chattels is either absolute or qualified; 
absolute, when the owner has a complete title and full dominion over it; 
qualified, when he has a temporary or special interest, liable to be totally 
divested on the happening of some particular event. 2 Kent, Com. 281. 
     4. Considered in relation to its use, personal property is either in 
possession, that is, in the actual enjoyment of the owner, or, in action, 
that is, not in his possession, but in the possession of another, and 
recoverable by action. 
     5. Title to personal property is acquired. 1st. By original acquisition 
by occupancy; as, by capture in war; by finding a lost thing. 2d. By 
original acquisition; by accession. 3d. By original acquisition, by 
intellectual labor; as, copyrights and patents for inventions. 4th. IV 
transfer, which is by act of law. 1. By forfeiture. 2. By judgment. 3. By 
insolvency. 4. By intestacy. 5th. By transfer, by act of the party. 1. 
Gifts. 2. Sale. Vide, generally, 16 Vin. Ab. 335; 8 Com. Dig. 474; Id. 562; 
1 Supp. to Ves. Jr. 49, 121, 160, 198, 255, 368, 9, 399, 412, 478; 2 Ibid. 
10, 40, 129, 290, 291, 341; 1 Vern. 3, 170, 412; 2 Salk. 449; 2 Ves. Jr. 59, 
336, 176, 261, 271, 683; 7 Ves. 453. See Pew; Property; Real property. 

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

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

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

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

TO PERSONATE, crim. law. The act of assuming the character of another 
without lawful authority, and, in such character, doing something to his 
prejudice, or to the prejudice of another, without his will or consent. 
     2. The bare fact of personating another for the purpose of fraud, is no 
more than a cheat or misdemeanor at common law, and punishable as such. 2 
East, P. C. 1010; 2 Russ. on Cr. 479. 
     3. By the act of congress of the 30th April, 1790, s. 15, 1 Story's 
Laws U. S. 86, it is enacted, that "if any person shall acknowledge, or 
procure to be acknowledged in any court of the United States, any 
recognizance, bail or judgment, in the name or names of any other person or 
persons not privy or consenting to the same, every such person or persons, 
on conviction thereof, shall be fined not exceeding five thousand dollars, 
or be imprisoned not exceeding seven years, and whipped not exceeding 
thirty-nine stripes, Provided nevertheless. that this act shall not extend 
to the acknowledgment of any judgment or judgments by any attorney or 
attorneys, duly admitted, for any person or persons against whom any such 
judgment or judgments shall be bad or given." Vide, generally, 2 John. Cas. 
293; 16 Vin. Ab. 336; Com. Dig. Action on the case for a deceit, A 3. 

TO PERSUADE, PERSUADING. To persuade is to induce to act: persuading is 
inducing others to act. Inst. 4, 6, 23; Dig. 11, 3, 1, 5. 
     2. In the act of the legislature which declared that "if any person or 
persons knowingly and willingly shall aid or assist any enemies at open war 
with this state, &c. by persuading others to enlist for that purpose, &c., 
he shall be adjudged guilty of high treason;" the word persuading, thus 
used; means to succeed: and there must be an actual enlistment, of the 
person persuaded in order to bring the, defendant within the intention of 
the clause. 1 Dall. R. 39; Carr. Crim. L 237; 4 Car. & Payne, 369 S. C. 1 9 
E. C L. R. 425; 9 Car. & P. 79; and article Administering; vide 2 Lord Raym. 
889. It may be fairly argued, however, that the attempt to persuade without 
success would be a misdemeanor. 1 Russ. on Cr. 44. 
     3. In England it has been decided, that to incite and procure a person 
to commit suicide, is not a crime for which the party could be tried. 9 C. & 
P. 79; 38 E. C.  L. R. 42; M. C. C. 356. Vide Attempt; Solicitation. 

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

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

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

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

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

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

PETITION. An instrument of writing or printing containing a prayer from the 
person presenting it, called the petitioner, to the body or person to whom 
it is presented, for the redress of some wrong, or the grant of some favor, 
which the latter has the right to give. 
     2. By the constitution of the United States the right "to petition the 
government for a redress of grievances," is secured to the people. Amend. 
Art. 1. 
     3. Petitions are frequently presented to the courts in order to bring 
some matters before them. It is a general rule, in such cases, that an 
affidavit should be made that the facts therein contained are true as far as 
known to the petitioner, and that those facts which he states as knowing 
from others be believes to be true. 

PETITION OF RIGHT, Eng. law. When the crown is in possession, or any title 
is vested in it which is claimed by a subject, as no suit can be brought 
against the king, the subject is allowed to file in chancery a petition of 
right to the king. 
     2. This is in the, nature of an action against a subject, in which the 
petitioner sets out his right to that which is demanded by him, and prays 
the king to do him right and justice; and, upon a due and lawful trial of 
the right, to make him restitution. It is called a petition of right, 
because the king is bound of right to answer it, and let the matter therein 
contained be determined in a legal way, in like manner as causes between 
subject and subject. The petition is presented to the king, who subscribes 
it, with these words, soit droit fait al partie, and thereupon it is 
delivered to the chancellor to be executed according to law. Coke's Entr. 
419, 422 b; Mitf. Eq. Pl. 30, 31; Coop. Eq. Pl. 22, 23. 

PETITORY. That which demands or petitions that which has, the, quality of a 
prayer or petition; a right to demand. 
     2. A petitory suit or action is understood to be one in which the mere 
title to property is to be enforced by means of a demand or petition, as 
distinguished from a possessory suit. 1 Kent, Com. 371. 
     3. In the Scotch law, petitory actions are so called, not because 
something is sought to be awarded by the judge, for in that sense all 
actions must be petitory, but because some demand is made upon the defender, 
in consequence either of the right of property or credit in the pursuer. 
Thus, actions for restitution of movables, actions of pounding, of 
forthcoming, and indeed all personal actions upon contracts, or quasi 
contracts, which the Romans called condictiones, are petitory. Ersk. Inst. 
b. 4, t. 1, n. 47. 

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

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

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

PEW. A seat in a church separated from all others, with a convenient space 
to stand therein. 
     2. It is an incorporeal interest in the real property. And, although a 
man has the exclusive right to it, yet, it seems, he cannot maintain 
trespass against a person entering it; 1 T. R. 430; but case is the proper 
remedy. 3 B. & Ald. 361; 8 B. & C. 294; S. C. 15 Eng. C. L. R. 221. 
     3. The right to pews is limited and usufructuary, and does not 
interfere with the right of the parish or congregation to pull down and 
rebuild the church. 4 Ohio R 541; 5 Cowen's R. 496; 17 Mass. R. 435; 1 Pick. 
R. 102; 3 Pick. R. 344; 6 S. & R. 508; 9 Wheat. R. 445; 9 Cranch, R. 52; 6 
John. R. 41; 4 Johns. Ch. R. 596; 6 T. R. 396. Vide Pow. Mortgages, Index, 
h.t.; 2 Bl. Com. 429; 1 Chit. Pr. 208, 210; 1 Pow. Mort. 17 n. 
     4. In Connecticut and Maine, and in Massachusetts, (except in Boston), 
pews are considered real estate: in Boston they are personal chattels. In 
New Hampshire they are personal property. 1 Smith's St. 145. The precise 
nature of such property does not appear to be well settled in New York. 15 
Wend. R. 218; 16 Wend. R. 28; 5 Cowen's R. 494. See Rev. St. Mass. 413; 
Conn. L. 432; 10 Mass. R. 323 17 Mass. 438; 7 Pick. R. 138; 4 N. H. Rep. 
180; 4 Ohio R. 515; 4 Harr. & McHen. 279; Harr. Dig. Ecclesiastical Law. 
Vide Perturbation of seat; Best on Pres. 111; Crabb on R. P. Sec. 481 to 
497. 

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

PHYSICIAN. One lawfully engaged in the practice of medicine. 
     2. A physician in England cannot recover for fees, as his practice is 
altogether honorary. Peake C. N. P. 96, 123; 4 T. R. 317. 
     3. But in Pennsylvania, and perhaps in all the United States, he may 
recover for his services. 5 Serg. & Rawle, 416. The law implies, therefore, 
a contract on the part of a medical man, as well as those of other 
professions, to discharge their duty in a skillful and attentive manner; and 
the law will redress the party injured by their neglect or ignorance. 1 
Saund. 312, R; 1 Ld. Raym. 213; 2 Wils. 359; 8 East, 348. 
     4. They are sometimes answerable criminally for mala praxis. (q.v.) 2 
Russ. on Cr. 288; Ayl. Pand. 213; Com. Dig. h.t. Vin. Ab. h.t. 

PHYSIOLOGY, med. jur. The science which treats of the functions of animals; 
it is the science of life. 
     2. The legal practitioner who expects to rise to eminence, must acquire 
some acquaintance with physiology. This subject is intimately connected with 
gestation, birth, life and death. Vide 2 Chit. Pr. 42, n. 

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

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

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

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

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

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

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

PILOT, mer. law. This word has two meanings. It signifies, first, an officer 
serving on board of a ship during the course of a voyage, and having the 
charge of the helm and of the ship's route; and, secondly, an officer 
authorized by law, who is taken on board at a particular place, for the 
purpose of conducting a ship through a river, road or channel, or from or 
into port. 
     2. Pilots of the second description are established by legislative 
enactments at the principal seaports in this country, and have rights, and 
are bound to perform duties, agreeably to the provisions of the several laws 
establishing them. 
     3. Pilots have been established in all maritime countries. After due 
trial and experience of their qualifications, they are licensed to offer 
themselves as guides in difficult navigation; and they are usually, on the 
other hand, bound to obey the call of a ship-master to exercise their 
functions. Abbott on Ship. 180; 1 John R. 305; 4 Dall. 205; 2 New R. 82; 5 
Rob. Adm. Rep. 308; 6 Rob. Adm. R. 316; Laws of Oler. art. 23; Molloy, B. 2, 
c. 9, s. 3 and 7; Wesk. Ins. 395; Act of Congress of 7th August, 1789, s. 4; 
Merl. Repert. h.t.; Pardessus, n. 637. 

PILOTAGE, contracts. The compensation given to a pilot for conducting a 
vessel in or out of port. Poth. Des Avaries, n. 147. 
     2. Pilotage is a lien on the ship, when the contract has been made by 
the master or quasi master of the ship, or some other person lawfully 
authorized to make it; 1 Mason, R. 508; and the admiralty court has 
jurisdiction, when services have been performed at sea. Id.; 10 Wheat. 428; 
6 Pet. 682; 10 Pet. 108; and see 1 Pet. Adm. Dec. 227. 

PIN MONEY. Money allowed by a man to his wife to spend for her own personal 
comforts. 
     2. When pin money is given to, but not spent by the wife, on his death 
it belongs to his estate. 4 Vin. Ab. 133, tit'. Baron and Feme, E a. 8; 2 
Eq. Cas. Ab. 156; 2 P. Wms. 341; 3 P. Wms. 353; 1 Ves. 267; 2 Ves. 190; 1 
Madd. Ch. 489, 490. 
     3. In the French law the term Epingles, pins, is used to designate the 
present which is sometimes given by the purchaser of an immovable to the 
wife or daughters of the seller to induce them to consent to the sale. This 
present is not considered as a part of the consideration, but a purely 
voluntary gift. Diet. de Jur. mot Epingles. 
     4. In England it was once adjudged that a promise to a wife, by the 
purchaser, that if she would not hinder the bargain for the sale of the 
husband's lands, he would give her ten pounds, was valid, and might be 
enforced by an action of assumpsit, instituted by husband and wife. Roll. 
Ab. 21, 22. 
     5. It has been conjectured that the term pin money, has been applied to 
signify the provision for a married woman, because anciently there was a tax 
laid for providing the English queen with pins. Barringt. on the Stat. 181. 

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

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

PIRACY, crim. law. A robbery or forcible depreciation on the high seas, 
without lawful authority, done animo furandi, in the spirit and intention of 
universal hostility. 5 Wheat. 153, 163; 3 Wheat. 610; 3 Wash. C. C. R. 209. 
This is the definition of this offence by the law of nations. 1 Kent, Com. 
183. The word is derived from peira deceptio, deceit or deception: or from 
peiron wandering up and down, and resting in no place, but coasting hither 
and thither to do mischief. Ridley's View, Part 2, c. 1, s. 3. 
     2. Congress may define and punish piracies and felonies on the high 
seas, and offences against the law of nations. Const. U. S. Art. 1, s. 7, n. 
10; 5 Wheat. 184, 153, 76; 3 Wheat. 336. In pursuance of the authority thus 
given by the constitution, it was declared by the act of congress of April 
30, 1790, s. 8, 1 Story's Laws U. S. 84, that murder or robbery committed on 
the high seas, or in any river, haven, or bay, out of the jurisdiction of 
any particular state, or any offence, which, if committed within the body of 
a county, would, by the laws of the United States, be punishable with death, 
should be adjudged to be piracy and felony, and punishable with death. It 
was further declared, that if any captain or manner should piratically and 
feloniously run away with a vessel, or any goods or merchandise of the value 
of fifty dollars; or should yield up such vessel voluntarily to pirates; or 
if any seaman should forcible endeavor to hinder his commander from 
defending the ship or goods committed to his trust, or should make revolt in 
the ship; every such offender should be adjudged a pirate and felon, and be 
punishable with death. Accessaries before the fact are punishable as the 
principal; those after the fact with fine and imprisonment. 
     3. By a subsequent act, passed March 3, 1819, 3 Story, 1739, made 
perpetual by the act of May 15, 1820, 1 Story, 1798, congress declared, that 
if any person upon the high seas, should commit the crime of piracy as 
defined by the law of nations, he should, on conviction, suffer death. 
     4. And again by the act of May 15, 1820, s. 3, 1 Story, 1798, congress 
declared that if any person should, upon the high seas, or in any open 
roadstead, or in any haven, basin or bay, or in any river where the sea ebbs 
and flows, commit the crime of robbery in or upon any ship or vessel, or 
upon any of the ship's company of any ship or vessel, or the lading thereof, 
such person should be adjudged to be a pirate, and suffer death. And if any 
person engaged in any piratical cruise or enterprize, or being of the crew 
or ship's company of any piratical ship or vessel, should land from such 
ship or vessel, and, on shore; should commit robbery, such person should be 
adjudged a pirate and suffer death. Provided that the state in which the 
offence may have been committed should not be deprived of its jurisdiction 
over the same, when committed within the body of a county, and that the 
courts of the United States should have no jurisdiction to try such 
offenders, after conviction or acquittal, for the same offence, in a state 
court. The 4th and 5th sections of the last mentioned act declare persons 
engaged in the slave trade, or in forcibly detaining a free negro or mulatto 
and carrying him in any ship or vessel into slavery, piracy, punishable with 
death. Vide 1 Kent, Com. 183; Beaussant, Code Maritime, t. 1, p. 244; 
Dalloz, Diet. Supp. h.t.; Dougl. 613; Park's Ins. Index, h.t. Bac. Ab. h.t.; 
16 Vin. Ab. 346; Ayl. Pand. 42 11 Wheat. R. 39; 1 Gall. R. 247; Id. 524 3 W. 
C. C. R. 209, 240; 1 Pet. C. C. R. 118, 121. 

PIRACY, torts. By piracy is understood the plagiarisms of a book, engraving 
or other work, for which a copyright has been taken out. 
     2. When a piracy has been made of such a work, an injunction will be 
granted. 5 Ves. 709; 4 Ves. 681; 12 Ves. 270. Vide copyright. 

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

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

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

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

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

PLACE, pleading, evidence. A particular portion of space; locality. 
     2. In local actions, the plaintiff must lay his venue in the county in 
which the action arose. It is a general rule, that the place of every 
traversable fact, stated in the pleading, must be distinctly alleged; Com. 
Dig. Pleader, c. 20; Cro. Eliz. 78, 98; Lawes' Pl. 57; Bac. Ab. Venue, B; 
Co. Litt. 303 a; and some place must be alleged for every such fact; this is 
done by designating the city, town, village, parish or district, together 
with the county in which the fact is alleged to have occurred; and the place 
thus designated, is called the venue. (q.v.) 
     3. In transitory actions, the place laid in the declaration, need not 
be the place where the cause of action arose, unless when required by 
statute. In local actions, the plaintiff will be confined in his proof to 
the county laid in the declaration. 
     4. In criminal cases the facts must be laid and proved to have been 
committed within the jurisdiction of the court, or the defendant must be 
acquitted. 2 Hawk. c. 25, s. 84; Arch. Cr. Pl. 40, 95. Vide, generally, 
Gould on Pl. c. 3, 102-104; Arch. Civ. Pl. 366; Hamm. N. P. 462; 1 Saund. 
347, n. 1; 2 Saund. 5 n. 

PLACE OF BUSINESS. The place where a man usually transacts his affairs or 
business. When a man keeps a store, shop, counting room or office, 
independently and distinctly from all other persons, that is deemed his 
place of business 3 and when he usually transacts his business at the 
counting house, office, and the like, occupied and used by another, that 
will also be considered his place of business, if he has no independent 
place of his own. But when he has no particular right to use a place for 
such private purpose, as in an insurance office, in exchange room, banking 
room, a post office, and the like, where persons generally resort, these 
will not be considered as the party's place of business, although he may 
occasionally or transiently transact business there. 2 Pet. R. 121; 10 John. 
501; 11 John. 231; 1 Pet. S. C. R. 582; 16 Pick. 392. 
     2. It is a general rule that a notice of the non-acceptance or non-
payment of a bill, or of the non-payment of a note, may be sent either to 
the domicil or place of business of the person to be affected by such 
notice, and the fact that one is in one town and the other in the other will 
make no difference, and the holder has his election to send to either. A 
notice to partners may be left at the place of business of the firm or of 
any one of the partners. Story on Pr. Notes, Sec. 312. 

PLACITUM. A plea. This word is nomen generalissimum, and refers to all the 
pleas in the case. 1 Saund. 388, n. 6; Skinn. 554; S. C. earth. 834; Yelv. 
65. By placitum is also understood the subdivisions in abridgments and other 
works, where the point decided in a case is set down, separately, and 
generally numbered. In citing, it is abbreviated as follows: Vin. Ab. 
Abatement, pl. 3. 
     2. Placita, is the style of the English courts at the beginning of the 
record of Nisi Prius; in this sense, placita are divided into pleas of the 
crown, and common pleas. 
     3. The word is used by continental writers to signify jurisdictions, 
judgments, or assemblies for discussing causes. It occurs frequently in the 
laws of the Longobards, in which there is a title de his qui ad, placitum 
venire coguntur. The word, it has been suggested, is derived from the German 
platz, which signifies the same as area facta. See Const. Car. Mag. Cap. IX. 
Hinemar's Epist. 227 and 197. The common formula in most of the 
capitularies is "Placuit atque convenit inter Francos et corum proceres," 
and hence, says Dupin, the laws themselves are often called placita. Dupin, 
Notions sur le Droit, p. 73. 

PLAGIARISM. The act of appropriating the ideas and language of another, and 
passing them for one's own. 
     2. When this amounts to piracy the party who has been guilty of it will 
be enjoined, when the original author has a copyright. Vide Copyright; 
Piracy; Quotation; Pard. Dr. Com. n. 169. 

PLAGIARIUS, civil law. He who fraudulently concealed a freeman or slave who 
belonged to another. 
     2. The offence itself was called plagium. 
     3. It differed from larceny or theft in this, that larceny always 
implies that the guilty party intended to make a profit, whereas the 
plagiarius did not intend to make any profit. Dig. 48, 15, 6; Code, 9,  20, 
9 and 15. 

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

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

PLAINTIFF, practice. He who, in a personal action, seeks a remedy for an 
injury to his rights. Ham. on Parties, h.t.; 1 Chit. Pl. Index, h.t.; Chit. 
Pr. Index, h.t.; 1 Com. Dig. 36, 205, 308. 
     2. Plaintiffs are legal or equitable. The legal plaintiff is he in whom 
the legal title or cause of action is vested. The equitable plaintiff is he 
who, not having the legal title, yet, is in equity entitled to the thing 
sued for; for example, when a suit is brought by Benjamin Franklin for the 
use of Robert Morris, Benjamin Franklin is the legal, and Robert Morris the 
equitable plaintiff. This is the usual manner of bringing suit, when the 
cause of action is not assignable at law, but is so in equity. Vide Bouv. 
Inst. Index, h.t.; Parties to Actions. 

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

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

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

PLAT. A map of a piece of land, in which are marked the courses and 
distances of the different lines, and the quantity of land it contains. 
     2. Such a plat;nay 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 things as a cause why the suit 
should be either dismissed, delayed or barred." Mitf. Tr. Ch. 177; see Coop. 
Eq. Pl. 223; Beames' Pl. Eq. 1. A plea is a special answer to a bill, and 
differs in this from an answer in the common form, as it demands the 
judgment of the court in the first instance, whether the matter urged by it 
does not debar the plaintiff from his title to that answer which the bill 
requires. 2  Sch. & Lef. 721. 
     2. Pleas are of three sorts: 1. To the jurisdiction of the court. 2. To 
the person of the plaintiff. 3. In bar of the plaintiff's suit. Blake's Ch. 
Pr. 112. See, generally, Beames' Elem. of Pleas in Eq.; Mitf. Tr. Cha. oh. 
2, s. 2, pt. 2; Coop. Eq. Pl. ch. 5; 2 Madd. Ch. Pr. 296 to 331; Blake's Ch. 
Pr. 112 to 114; Bouv. Inst. Index, h.t. 

PLEA, practice. The defendant's answer by matter of fact, to the plaintiff's 
declaration. 
     2. It is distinguished from a demurrer, which opposes matter of law to 
the declaration. Steph. Pl. 62. 
     3. Pleas are divided into plea dilatory and peremptory; and this is the 
most general division to which they are subject. 
     4. Subordinate to this is another division; they are either to the 
jurisdiction of the court, in suspension of the action; in abatement of the 
writ; or, in bar of the action; the first three of which belong to the 
dilatory class, the last is of the peremptory kind. Steph. Pl. 63; 1 Chit. 
Pl. 425; Lawes, Pl. 36. 
     5. The law has prescribed and settled the order of pleading, which the 
defendant is to pursue, to wit; 1st. To the jurisdiction of the court. 2d. 
To the disability, &c. of the person. 1st. Of the plaintiff. 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. 
     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 husband 
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 coverture in abatement, and aver that her husband is 
living. 3 T. R. 627; 1 Chit. Pl. 437, 8. 
    16.-2. Plea in abatement to the count. Pleas of this kind are for some 
uncertainty, repugnancy, or want of form, not appearing on the face of the 
writ itself, but apparent from the recital of it in the declaration only; or 
else for some variance between the writ and declaration. But it was always 
necessary to obtain oyer of the writ before the pleading of these pleas; and 
since oyer cannot now be had of the original writ for the purpose of 
pleading them, it seems that they can no longer be pleaded. See Oyer. 
    17. Plea in abatement to the form of the writ. Such pleas are for some 
apparent uncertainty, repugnancy, or want of form, variance from the record, 
specialty, &c., mentioned therein, or misnomer of the plaintiff or 
defendant. Lawes' Civ. Pl. 106; 1 Chit. Pl. 440. 
    18. Plea in abatement to the action of the writ. Pleas of this kind are 
pleaded when the action is misconceived, or was prematurely commenced before 
the cause of action arose; or when there is another action depending for the 
same cause. Tidd's Pr. 579. But as these matters are ground for demurrer or 
nonsuit, it is now very unusual to plead them in abatement. See 2 Saund. 
210, a. 
    19. Plea in avoidance, is one which confesses the matters contained in 
the declaration, and avoids the effect of them, by some new matter which 
shows that the plaintiff is not entitled to maintain his action. For 
example, the plea may admit the contract declared upon, and show that it was 
void or voidable, because of the inability of one of the parties to make it, 
on account of coverture, infancy, or the like. Lawes, Pl. 122. 
    20. Plea in bar, is one that denies that the plaintiff has any cause of 
action. 1 Ch. Pl. 459 Co. Litt. 303 b; 6 Co. 7. Or it is one which shows 
some ground for barring or defeating the action; and makes prayer to that 
effect, Steph. Pl. 70; Britton, 92. See Bar. 
    21. A plea in bar is, therefore, distinguished from all pleas of the 
dilatory class, as impugning the right of the action altogether, instead of 
merely tending to divert the proceedings to another jurisdiction, or suspend 
them, or abate the particular writ. It is in short a substantial and 
conclusive answer to the action. It follows, from this property, that in 
general, it must either deny all, or some essential part of the averments of 
fact in the declaration; or, admitting them to be true, allege new facts, 
which obviate and repel their legal effect. In the first case the defendant 
is said, in the language of pleading, to traverse the matter of the 
declaration; in the latter, to confess and avoid it. Pleas in bar are 
consequently divided into pleas by way of traverse, and pleas by way of 
confession and avoidance. Steph. Pl. 70, 71. 
    22. Pleas in bar are, also divided into general or special. 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 are very various, according to the 
circumstances of the defendant's case; as, in personal actions, the 
defendant may plead any special matter in denial, avoidance, discharge, 
excuse, or justification of the matter alleged in the declaration, which 
destroys or bars the plaintiff's action; or he may plead any matter which 
estops, or precludes him from averring or insisting on any matter relied 
upon by the plaintiff in his declaration. The latter sort of pleas are 
called pleas in estoppel. In real actions, the tenant may plead any matter 
which destroys and bars the demandant's title; as, a general release. Id. 
115, 116. 
    24. The general qualities of a plea in bar are, 1. That it be adapted to 
the nature and form of the action, and also conformable to the count. Co. 
Litt. 303, a 285, b; Bac. Abr. Pleas, I; 1 Roll. Rep. 216. 
     2. That it answers all it assumes to answer, and no more. Co. Litt. 303 
a; Com. Dig. Pleader, E 1, 36; 1 Saund. 28, n. 1, 2, 3; 2 Bos. & Pull. 427; 
3 Bos. & Pull. 174. 
     3. In the case of a special plea, that it confess and admit the fact. 3 
T. R. 298; 1 Salk. 394; Carth. 380; 1 Saund. 28, n. and 14 u. 3 10 Johns. R. 
289.   
     4. That it be single. Co. Litt. 304; Bac. Ab. Pleas, 2 Saund. K, 1, 2; 
Com Dig. Plead. E 2; 49, 50; Plowd. Com. 140, d. 
     5. That it be certain. Com. Dig. Pleader, E 5, 7, 8, 9, 10, 11; C 41; 
this Dict. Certainty; Pleading. 
     6. It must be direct, positive, and not argumentative. See 6 Cranch, 
126; 9 Johns. It. 313. 
     7. It must be capable of trial. 8. It must be true and capable of 
proof. See Plea, sham. 
    25. The parts of a plea in bar may be considered with reference to, 
     1. The title of the court in which it is pleaded. 
     2. The title of the term. 
     3. The names of the parties in the margin. These, however, do not 
constitute any part of the plea. The surnames only are usually inserted, and 
that of the defendant precedes the plaintiff's; as, "Roeats. Doe." 
     4. The commencement which includes the statement of, 1. The name of the 
defendant; 2. The appearance; 3. The defence; see Defence; 4. The actio non; 
 see Actio non. 
     5. The body, which may contain, 1. The inducement; 2. The protestation; 
3. Ground of defence 4. Qua est eadem; 5. The traverse. 
     6. The conclusion. 
    26. Dilatory pleas are such as delay the plaintiff's remedy, by 
questioning, not the cause of action, but the propriety of the suit, or the 
mode in which the remedy is sought. 
    27. Dilatory pleas are divided by Sir William Blackstone, into three 
kinds: 1. Pleas to the jurisdiction of the court; as, that the cause of 
action arose out of the limits of the jurisdiction of the court, when the 
action is local. 2. Pleas to the disability of the plaintiff, or, as they 
are usually termed, to' the person of the plaintiff; as, that he is an alien 
enemy. 3. Pleas in abatement of the writ, or count; these are founded upon 
some defect or mistake, either in the writ itself; as, that the defendant is 
misnamed in it, or the like; or in the mode in which the count pursues it; 
as, that there is some variance or repugnancy between the count and writ; in 
which case, the fault in the count furnishes a cause for abating the writ. 2 
Bl. Com. 301 Com. Dig. Abatement, G 1, 8; Id. Pleader, C 14, 15; Bac. Ab. 
Pleas, F 7. 
    28. All dilatory pleas are sometimes called pleas in abatement, as 
contradistinguished to pleas to the action; this is perhaps not strictly 
proper, because, though all pleas in abatement are dilatory pleas, yet all 
dilatory pleas are not pleas in abatement. Gould on Pl. ch. 2, Sec. 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 
purposely to have done the acts which are the subject of the plaintiff'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. 
    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 law, 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. 
    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.  

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. Appx. note I; Story, Eq. Pl. Sec. 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 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 any art of the pleadings above mentioned. 2dly. Demurrers to 
evidence given at trials. 3dly. Bills of exceptions. 4thly. Pleas in scire 
facias. And, 5thly. Pleas in error. Vin. Abr. Pleas and Pleadings, C.; Bouv. 
Inst. Index, h.t. 

PLEADING, SPECIAL. By special pleading is meant the allegation of special or 
new matter, as distinguished from a direct denial of matter previously 
alleged on the opposite side. Gould on Pl. c. 1, s. 18. 

PLEAS OF THE CROWN, Eng. law. This phrase is now employed to signify 
criminal causes in which the king is a party. Formerly it signified royal 
causes for offences of a greater magnitude than mere misdemeanors. These 
were left to be tried in the courts of the barons, whereas the greater 
offences, or royal causes, were to be tried in the king's courts, under the 
appellation of pleas of the crown. Robertson's Hist. of Charles V., vol. 1, 
p. 48. 

PLEAS POLL, Eng. practice. A record which contains the declaration, plea, 
replication, rejoinder, and other pleadings, and the issue. Eunom. Dial. 2, 
Sec. 29, p. 111. 

PLEBEIAN. One who is classed among the common people, as distinguished from 
the 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. Sec. 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. 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, Sec. 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. Sec. 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 Johns. 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, Sec.  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. 
     9. It is essential that the thing should be delivered as a security for 
some debt or engagement. Story on Bailm. Sec. 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 entitled 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 
fulfillment 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, Sec. 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. Sec. 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. Sec. 354. 
    14. As to the manner of extinguishing the contract of pledge or mortgage 
of personal property, see Story on Bailm. 359 to 366. 

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. Sec. 119. 

PLENARTY, eccl. law. Signifies that a benefice is full. Vide Avoidance. 

PLENARY. Full, complete. 
     2. In the courts of admiralty, and in the English ecclesiastical 
courts, causes or suits in respect of the different course of proceeding in 
each, are termed plenary or summary. Plenary, or full and formal suits, are 
those in which the proceedings must be full and formal: the term summary is 
applied to those causes where the proceedings are more succinct and less 
formal. Law's Oughton, 41; 2 Chit. Pr. 481. 

PLENE ADMINISTRAVIT, pleading.  A plea in bar entered by an executor or 
administrator by which he affirms that he had not in his possession at the 
time of the commencement of the suit, nor has had at any time since any 
goods of the deceased to be administered; when the plaintiff replies that 
the defendant had goods, &c., in his possession at that time, and the 
parties join issue, the burden of the proof will be on the plaintiff. Vide 
15 John. R. 323; 6 T. R. 10; 1 Barn. & Ald. 254; 11 Vin. Ab. 349; 12 Vin. 
Ab. 185; 2 Phil. Ev. 295; 3 Saund. (a) 315, n. 1; 6 Com. Dig. 311. 

PLENE ADMINISTRAVIT PRAETER. This is the usual plea of plene administravit, 
except that the defendant admits a certain amount of assets in his hands. 

PLENE COMPUTAVIT, pleading. A plea in an action of account render, by which 
the defendant avers that he has fully accounted. Bac. Ab. Accompt, E. This 
plea does not admit the liability of the defendant to account. 15 S. & R. 
153. 

PLENIPOTENTIARY. Possessing full powers; as, a minister plenipotentiary, is 
one authorized fully to settle the matters connected with his mission, 
subject however to the ratification of the government by which he is 
authorized. Vide Minister. 

PLENUM DOMINIUM. The unlimited right which the owner has to use his property 
as he deems proper, without accountability to any one. 

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

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; Prize. 

PLUNDERAGE, mar. law. The embezzlement of goods on board of a ship, is known 
by the name of plunderage. 
     2. The rule of the maritime law in such cases is, that the whole crew 
shall be responsible for the property thus embezzled, because there must be 
some negligence in finding out the depredator. Abbott on Ship. 457; 3 John. 
Rep. 17; 1 Pet. Adm. Dee. 243; 1 New Rep. 347; 1 Pet. Adm. Dee. 200, 239. 

PLURAL. A term used in grammar, which signifies more than one. 
     2. Sometimes, however, it may be so expressed that it means only one, 
as, if a man were to devise to another all he was worth, if he, the 
testator, died without children, and he died leaving one child, the devise 
would not take effect. See Dig. 50, 16, 148; Id. 35, 1, 101, 1; Id. 3 1, 17, 
4 Code, 6, 49, 6, 2; Shelf. on L 559, 589. See Singular. 

PLURALITY, government. The greater number of votes given at an election; it 
is distinguished from a majority, (q.v.) which is a plurality of all the 
votes which might have been given; though in common parlance majority is 
used in the sense here given to plurality. 

PLURIES, practice. A term by which a writ issued subsequently to an alias of 
the same kind, is denominated. 
     2. The pluries writ is made by adding after we command you, the words, 
"as often times we have commanded you." This is called the first pluries, 
the next is called the second pluries, &c. 

POINDING, Scotch. law. That diligence, affecting movable subjects, by which 
their property is carried directly to, the creditor. Poinding is real or 
personal. Ersk. Pr. L. Scot. 3, 6, 11. 

POINDING, PERSONAL, Scotch law. Poinding of the goods belonging to the 
debtor; and of those goods only. 
     2. It may have for its warrant either letters of horning, containing a 
clause for poinding, and then it is executed by messengers; or precepts of 
poinding, granted by sheriffs, commissaries, &c., which are executed by 
their proper officers. No cattle pertaining to the plough, nor instruments 
of tillage, can be poinded in the time of laboring or tilling the ground, 
unless where the debtor, has no other goods that may be poinded. Ersk. Pr. 
L. Soot. 3, 6, 11. See Distress, to which this process is somewhat similar. 

POINDING, REAL, or poinding of the ground, Scotch law. Though it be properly 
a diligence, this is generally considered by lawyers as a species of real 
action, and is so called to distinguish it from personal poinding, which is 
founded merely on an obligation to pay. 
     2. Every debitum fundi, whether legal or conventional, is a foundation 
for this action. It is therefore competent to all creditors in debts which 
make a real burden on lands. As it proceeds on a, real right, it may be 
directed against all goods that can be found on the lands burdened but, 1. 
Goods brought upon the ground by strangers are not subject to this 
diligence. 2. Even the goods of a tenant cannot be poinded for more than his 
term's rent, Ersk. Pr. L. Scot. 4, 1, 3. 

POINT, practice. A proposition or question arising in a case. 
     2. It is the duty of a judge to give an opinion on every point of law, 
properly arising out of the issue, which is propounded to him. Vide 
Resolution. 

POINT RESERVED. A point or question of law which the court, not being fully 
satisfied how to decide, in the hurried trial of a cause, rules in favor of 
the party offering it, but subject to revision on a motion for a new trial. 
If, after argument, it be found to have been ruled correctly, the verdict is 
supported; if otherwise, it is set aside. 

POINTS, construction. Marks in writing and in print, to denote the stops 
that ought to be made in reading, and to point out the sense. 
     2. Points are not usually put in legislative acts or in deeds: Eunom. 
Dial. 2, Sec. 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. 
     3. The points are the comma, the semi-colon, the colon, the full point, 
the point of interrogation and exclamation. Barr. on the Stat. 294, note; 
vide Punctuation. 

POISON, crim. law. Those substances which, when applied to the organs of the 
body, are capable of altering or destroying, in a majority of cases, some or 
all of the functions necessary to life, are called poisons. 3 Fodere, Traite 
de Med. Leg. 449; Guy, Med. Jur. 520. 
     2. When administered with a felonious intent of committing, murder, if. 
death ensues, it is murder the most detestable, because it can of all 
others, be least prevented by manhood or forethought. It is a deliberate act 
necessarily implying malice. 1 Russ. Cr. 429. For the signs which indicate 
poisoning, vide 2 Beck's Med. Jurisp. ch. 16, p. 236, et seq.; Cooper's Med. 
Jurisp. 47; Ryan's Med. Jurisp. ch. 15, p. 202, et seq.; Traill, Med. Jur. 
109. 

POLE. A measure of length, equal to five yards and a half. Vide Measure. 

POLICE. That species of superintendence by magistrates which has principally 
for its object the maintenance of public tranquillity among the citizens. 
The officers who are appointed for this purpose are also called the police. 
     2. The word police has three significations, namely; 1. The first 
relates to the measures which are adopted to keep order, the, laws and 
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 criminals. Its object is to 
punish crimes which the administrative police has not been able to prevent. 

POLICE JURY. In Louisiana this name is given. to certain officers who 
collectively exercise jurisdiction in certain cases of police as levying 
taxes, regulating roads, 

POLICY OF INSURANCE, contracts. An instrument in writing by which the 
contract of insurance is effected and reduced into form. 
     2. The term policy of insurance, or assurance, 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. 
     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, and 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. 
     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. Sec. 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,Sec. 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 husbands. 
     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 husbands living, marries another. It differs 
from bigamy. (q.v.) Com. Dig. Justices, S 5, Dict. de Jur. h.t. 

POND. A body of stagnant water; a pool. 
     2. Any one has a right to erect a fish pond; the fish in ii are 
considered as real estate, and pass to the heir and not to the executor. Ow. 
20. See Pool; River; Water. 

PONE, English practice. An original writ issuing out of chancery, for the 
purpose of removing a plaint from an inferior court into the superior courts 
at Westminster. The word signifies "put;" put by gages, &c. The writ is 
called from the words it contained when in Latin, "Pone per vadium et salvos 
plegios," &c. Put by gage and safe pledges, &c. See F. N. B. 69, 70 a; 
Wilkinson on Replevin, Index. 

PONTAGE. A contribution towards the maintenance, rebuilding or repairs of a 
bridge. The toll taken for this purpose also bears this name. Obsolete. 

POOL. A small lake of standing water. 
     2. By the grant of a pool, it is said, both the land and water will 
pass. Co. Litt. 5. Vide Stagnum; Water. Undoubtedly the right to fish, and 
probably the right to use hydraulic works, will be acquired by such grant. 2 
N. Hamps. Rep. 259; An on Wat. Courses, 47; Plowd. 161; Vaugh. 103; Bac. Ab. 
Grants, H 3; Com. Dig. Grant, E 5; 5 Cowen, 216; Cro. Jac. 150; 1 Lev. 44; 
Co. Litt. 5. 

POPE. The chief of the catholic religion is so called. He is a temporal 
prince. He is elected by certain officers called cardinals, and remains in 
power during life. In the 9th Collation of the Authentics it is declared the 
bishop of Rome hath the first place of sitting in all assemblies, and the 
bishop of Constantinople the second. Ridley's View, part 1, chap. 3, sect. 
10. 
     2. The pope has no political authority in the United States. 

POPE'S FOLLY. The name of a small island, situated in the bay of 
Passamaquoddy, which, it has been decided, is within the jurisdiction of the 
United States. 1 Ware's R. 26. 

POPULAR ACTION, punishment. An action given by statute to any one who will 
sue for the penalty. A qui tam action. Dig. 47, 23, 1. 

PORT. A place to which the officers of the customs are appropriated, and 
which include the privileges and guidance of all members and creeks which 
are allotted to them. 1 Chit. Com. Law, 726; Postlewaith's Com. Dict. h.t.; 
1 Chit. Com. L. Index, h.t. According to Dalloz, a port is a place within 
land, protected against the waves and winds, and affording to vessels a 
place of safety. Diet. Supp. h.t. By the Roman law a port is defined to be 
locus, conclusus, quo importantur merces, et unde exportantur. Dig. 50,16, 
59. See 7 N. S. 81. 2. A port differs 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, Eng. 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. Sec. 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. Sec. 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 the truth 
or falsehood of a fact in issue, and does not arise from any presumption. It 
is distinguished from circumstantial evidence. 3 Bouv. Inst. n. 3057. 

POSSE. This word is used substantively to signify a possibility. For 
example, such a thing is in posse, that is, such a thing may possibly be; 
when the thing is in being, the phrase to express it is, in esse. (q.v.) 

POSSE COMITATUS. These Latin words signify the power of the county. 
     2. The sheriff has authority by the common law, while acting under the 
authority of the writ of the United States, commonwealth or people, as the 
case may be, and for the purpose of preserving the public peace, to call to 
his aid the posse comitatus. 
     3. But with respect to writs which issue, in the first instance, to 
arrest in civil suits, the sheriff is not bound to take the posse comitatus 
to assist him in the execution of them: though he may, if he pleases, on 
forcible resistance to the execution of the process. 2 Inst. 193; 3 Inst. 
161. 
     4. Having the authority to call in the assistance of all, it seems to 
follow, that he may equally require that of any individual; but to this 
general rule there are some exceptions; persons of infirm health, or who 
want understanding, minors under the age of fifteen years, women, and 
perhaps some others, it seems, cannot be required to assist the sheriff, and 
are therefore not considered as a part of the power of the county. Vin. Ab. 
Sheriff, B. 
     5. A refusal on the part of an individual lawfully called upon to 
assist the officer in putting down a riot is indictable. 1 Carr. & Marsh. 
314. In this case will be found the form of an indictment for this offence. 
     6. Although the sheriff is acting without authority, yet it would seem 
that any person who obeys his command, unless aware of that fact, will be 
protected. 
     7. Whether an individual not enjoined by the sheriff to lend his aid, 
would be protected in his interference, seems questionable. In a case where 
the defendant assisted sheriff's officers in executing a writ of replevin 
without their solicitation, the court held him justified in so doing. 2 Mod. 
244. Vide Bac. Ab. Sheriff, N; Hamm. N. P. 63; 5 Whart. R. 437, 440. 

POSSESSED. This word is applied to the right and enjoyment of a termor or a 
person having a term, who is said to be possessed, and not seized. Bac. Tr. 
335; Poph. 76; Dy. 369. 

POSSESSIO FRATRIS. The brother's possession. This is a technical phrase 
which is applied in the English law relating to descents. By the common law, 
the ancestor from whom the 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 Ship. 9, et seq. But 
an infant of sufficient understanding may lawfully acquire the possession of 
a thing. 
     3. Possession is natural or civil; natural, when a man detains a thing 
corporeal, as by occupying a house, cultivating grounds or retaining a 
movable in his custody; possession is civil, when a person ceases to reside 
in the house, or on the land which he occupied, or to detain the movable he 
possessed, but without intending to abandon the possession. See, as to 
possession of lands, 2 Bl. Com. 116; Hamm. Parties, 178; 1 McLean's R. 214, 
265. 
     4. Possession is also actual or constructive; actual, when the thing is 
in the immediate occupancy of the party. 3 Dey. R. 34. Constructive, when a 
man claims to hold by virtue of some title, without having the actual 
Occupancy; as, when the owner of a lot of land, regularly laid out, is in 
possession of any part, he is considered constructively in possession of the 
whole. 11 Vern. R. 129. What removal of property or loss of possession will 
be sufficient to constitute larceny, vide 2 Chit. Cr. Law, 919; 19 Jurist, 
14; Etienne, h.t. Civ. Code of Louis. 3391, et seq. 
     5. Possession, in the civil law, is divided into natural and civil. The 
same division is adopted by the Civil Code of Louisiana. 
     6. Natural possession is that by which a man detains a thing corporeal, 
as by occupying a house, cultivating ground, or retaining a movable in his 
possession. Natural possession is also defined to be the corporeal detention 
of a thing, which we possess as belonging to us, without any title to that 
possession, or with a title which is void. Civ. Code of Lo. art. 3391, 3393. 
     7. Possession is civil, when a person ceases to reside in a house or on 
the land which he occupied, or to detain the movable which he possessed, but 
without intending to abandon the possession. It is the detention of a thing, 
by virtue of a just title, and under the conviction of possessing as owner. 
Id. art. 3392, 3394. 
     8. Possession applies properly only to corporeal things, movables and 
immovables. The possession of incorporeal rights, such as servitudes and 
other rights of that nature, is only a quasi. possession, and is exercised 
by a species of possession of which these rights are susceptible. Id. art. 
3395. 
     9. Possession may be enjoyed by the proprietor of the, thing, or by 
another for him; thus the proprietor of a house possesses it by his tenant 
or farmer. 
    10. To acquire possession of a property, two things are requisite. 1. 
The intention of possessing as owner. 2. The corporeal possession of the 
thing. Id. art. 3399. 
    11. Possession is lost with or without the consent of the possessor. It 
is lost with his consent, 1. When he transfers this possession to another 
with the intention to divest himself of it. 2. When he does some act, which 
manifests his intention of abandoning possession, as when a man throws into 
the street furniture or clothes, of which he no longer chooses to make use. 
Id. art. 3411. A possessor of an estate loses the possession against his 
consent. 1. When another expels him from it, whether by force in driving him 
away, or by usurping possession during his absence, and preventing him from 
reentering. 2. When the possessor of an estate allows it to be usurped, and 
held for a year, without, during that time, having done any act of 
possession, or interfered with the usurper's possession. Id. art. 3412. 
    12. As to the effects of the purchaser's taking possession, see 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. Sec. 200, and the note 
in the French translation; 2 Greenl. Ev. Sec. 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 real 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, Sec. 2, and the cases there 
cited. 

POST. After. When two or more alienations or descents have taken place 
between an original intruder ant or defendant in a writ of entry, the writ 
is said to be in the post, because it states that the tenant had not entry 
unless after the ouster of the original intruder. 3 Bl. Com. 182. See Entry, 
limit of. 

POST DATE. To date an instrument a time after that on which it is made. Vide 
Date. 

POST DIEM. After the day; as a plea of payment post diem, after the, day 
when the money became due. Com. Dig. Pleader, 2 W 29. 

POST DISSEISIN, Eng. 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 post nuptial 
settlement, which is a conveyance made generally by the husband 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 husband be not involved at the 
time, and it be not disproportionate to his means, taking his debts and 
situation into consideration, is valid. 4 Mason, 443.7 See 4 Dall. 304; 
Settlement; Voluntary conveyance. 

POST OBIT, contract. An agreement, by which the obligor borrows a certain 
sum of money and promises to pay a larger sum, exceeding the lawful rate of 
interest, upon the death of a person, from whom he has some expectation, if 
the obligor be then living. 7 Mass. R. 119; 6 Madd. R. 111; 5 Ves. 57; 19 
Ves. 628. 
     2. Equity will, in general, relieve a party from these unequal 
contracts, as they are fraudulent on the ancestor. See 1 Story, Eq. Sec. 
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, Sec. 13, note, p; 1 Story, Eq. Sec. 344. See Catching 
Bargain; Macedonian Decree. 

POST OFFICE. A place where letters are received to be sent to the persons to 
whom they, are addressed. 
     2. The post office establishment of the United States, is of the 
greatest importance to the people and to the government. The constitution of 
the United States has invested congress with power to establish post offices 
and post roads.. Art. 1, s. 8, n. 7. 
     3. By virtue of this constitutional authority, congress passed several 
laws anterior to the third day of March, 1825, when an act, entitled "An act 
to reduce into one the several acts establishing and regulating the post 
office department," was passed. 3 Story, U. S. 1985. It is thereby enacted, 
Sec. 1. That there be established, 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 expedient, 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 
productiveness thereof, and other circumstances, shall think proper. He may 
direct the route or road, where there are more than one, between places 
designated by law for a post road, Which route shall be considered the post 
road. He shall obtain, from the postmasters, their accounts and vouchers for 
their receipts and expenditures, once in three months, or oftener, with the 
balances thereon arising, in favor of the general post office. He shall pay 
all expenses which may arise in conducting the post office, and in the 
conveyance of the mail, and all other necessary expenses arising on the 
collection of the revenue, and management of the general post office. He 
shall prosecute offences against the post office establishment. He shall, 
once in three months, render, to the secretary of the treasury, a quarterly 
account of all the receipts and expenditures in the said department, to be 
adjusted and settled as other public accounts. He shall, also, superintend 
the business of the department in all tho duties that are, or may be 
assigned to it: Provided, That, in case of the death, resignation, or, 
removal from office, of the postmaster general, all his duties shall be 
performed by his senior assistant, until a successor shall be appointed, and 
arrive at the general post office, to perform the business. 
     4.-Sec. 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 management 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.-Sec. 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. 
    6.-Sec. 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.-Sec. 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.-Sec. 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 lawfully 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.-Sec. 9. 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 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. Sec. 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.-Sec. 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 additional 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.-Sec. 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 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 and 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, 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 and 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. 

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, Sec. 33, p. 116. 

POSTERIORES. This term was used by the Romans to denote the descendant in a 
direct line beyond the sixth degree. It is still used in making genealogical 
tables. 

POSTERIORITY, rights. Being or, coming after. It is a word of comparison, 
the correlative of which is priority; as, when a man holds lands from two 
landlords, he holds from his ancient landlord by priority and from the other 
by posteriority. 2 Inst. 392. 
     2. These terms, priority and posteriority, are also used in cases of 
liens the first are prior liens, and are to be paid in the first place; the 
last are posterior liens, and are not entitled to payment until the former 
have been satisfied. 

POSTERITY, descents. All the descendants of a person in a direct line. 

POSTHUMOUS CHILD. after the death of its father; or, when the Caesarian 
operation is performed, after that of the mother. 
     2. Posthumous children are entitled to take by descent as if they had 
been born at the time of their deceased ancestor. When a father has made a 
will without providing for a posthumous child, such a will is in some 
states, as in Pennsylvania, revoked pro tanto by implication. 4 Kent, Com. 
506; Dig. 28, 5, 92; Ferriere, Com. h.t.; Domat, Lois Civiles, part 2 ' liv. 
2, t. 1, s. 1: Merl. Rep. h.t.; 2 Bouv. Inst. n. 2158. 

POSTILS, postillae. Marginal notes made in a book or writing for reference 
to other parts of the same, or some other book or writing. 

POSTLIMINIUM. That right in virtue of which persons and things taken by the 
enemy are restored to their former state, when coming again under the power 
of the nation to which they belong. Vat. Liv. 3, c. 14, s. 204; Chit. Law of 
Nat. 93 to, 104; Lee on Captures, ch. 5; Mart. Law of Nat. 305; 2 Woodes. 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, pleasure of the 
former. Before entering on the duties of his office, he is required to give 
bond with surety to be approved by the postmaster general. Act of 3d March, 
1825, s. 3. 12. Every postmaster is required to keep an office in the place 
for which he may be appointed; and it is his duty to receive and forward by 
mail, without delay, all letters, papers, and packets as directed; to 
receive the mails and deliver, at all reasonable hours, all letters, papers 
and packets to the persons entitled thereto. 
     3. In lieu of commissions allowed deputy postmasters by the 14th 
section of the act of 3d March, 1845,.the postmaster general is authorized 
by the act of March 1, 1847, s. 1, to allow, on the proceeds of their 
respective offices, a commission not exceeding the following rates on the 
amount received in any one year, or a due proportion thereof for less than a 
year: On a sum not exceeding one hundred dollars, forty per cent; on a sum 
over the first hundred and not exceeding four hundred dollars, thirty-three 
and one-third per cent; on a sum over and above the first four hundred 
dollars and not exceeding twenty-four hundred dollars, thirty per cent.; on 
a sum over twenty-four hundred dollars, twelve and one-half per cent.; on 
all sums arising from the postage on newspapers, magazines, and pamphlets, 
fifty per cent.; on the amount of postages on letters or packets received 
for distribution, seven per cent.: Provided, That all allowances, 
commissions, or other emoluments, shall be subject to the provisions of the 
forty-first section of the act which this is intended to amend; and that the 
annual compensation therein limited shall be computed for the fiscal year 
commencing on the 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, Sec. 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. Sec. 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 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 Vern. 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 
praetor. 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 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 and 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 praetor declared by the word implies. Such in brief was the course 
of proceedings before the quaestiones perpeduae. 
     9. The forms observed in the comitia centiniata and comitia tributa 
were nearly the same, except the composition of the tribunal, and the mode 
of declaring the vote. 
    10. It is easy to perceive in this account of a criminal action, the 
germ of the proceedings on an indictment at common law. 

POT-DE-VIN, French law. A sum of money frequently paid, at the moment of 
entering into a contract, beyond the price agreed upon. 
     2. It differs from arrha, (q.v.) in this, that it is no part of the 
price of the thing sold, and, that the person who has received it, cannot by 
returning double the amount, or the other party by losing what he has paid, 
rescind the contract. 18 Toull. n. 52. 

POTENTATE. One who has a great power over, an extended country; a sovereign. 
     2. By the naturalization laws, an alien is required, before he can be 
naturalized, to renounce all allegiance and 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 authority of masters over their slaves, which makes 
it nearly synonymous with dominium. See Inst. 1, 9, et 12; Dig. 2, 1, 13, 1; 
Id. 14, 1; Id. 14, 4, 1, 4. 

POUND, weight. There are two kinds of weights, namely, the troy, and the 
avoirdupois. The pound avoirdupois is greater than the troy pound, in the 
proportion of seven thousand to five thousand seven hundred and sixty. The 
troy pound contains twelve ounces, that of avoirdupois sixteen ounces. 

POUND, Eng. law. A place enclosed to keep strayed animals in. 5 Pick. 514; 4 
Pick. 258; 9 Pick. 14. 

POUND, money. The sum of twenty shillings. Previous to the establishment of 
the federal currency,, the different states made use of the pound in 
computing money; it was of different value in the several states. 
     2. Pound sterling, is a denomination of money of Great Britain. It is 
of the value of a sovereign. (q.v.) In calculating the rates of duties, the 
pound sterling shall be considered and taken as of the value of four dollars 
and eighty cents. Apt of March 3, 1833. 
     3. The pound sterling of Ireland is to be computed, in calculating said 
duties, at four dollars and ten cents. Id. 
     4. The pound of the British provinces Nova Scotia, New Brunswick, 
Newfoundland, and Canada, is to be so computed at four dollars. Act of May, 
22, 1846. 

POUNDAGE, practice. The amount allowed to the sheriff, or other officer, for 
commissions on, the money made by virtue of an execution. This allowance 
varies in different states, and to different officers. 

POURPARLER, French law. The conversations and negotiations which have taken 
place between the parties in order to make an agreement. These form no part 
of the agreement. Pard. Dr. Com. 142. 
     2. The general rule in the common law is the same, parol proof cannot, 
therefore, be given to contradict, alter, add to, or diminish a written 
instrument, except in some particular cases. 1 Dall. 426; Dall. 340; 8 Serg. 
& Rawle, 609; 7 Serg. Rawle, 114. 

POURSUIVANT. A follower, a pursuer. In the ancient English law, it signified 
an officer who attended upon the king in his wars, at the council table, 
exchequer, in his court, &e., to be sent as a messenger. A poursuivant was, 
therefore, a messenger of the king. 

POWER. This is either inherent or derivative. The former is the right, 
ability, or faculty of doing something, without receiving that right, 
ability, or faculty from another. The people have the power to establish a 
form of government, or to change one already 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 out of 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 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. Sec. 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, Eng. 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, Chitty, Archbold, Sellon, Graham, Dunlap, Caines, Troubat and 
Haly, Blake, Impey. 
     4. A settled, uniform, and loll, continued practice, without objection 
is evidence 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. 

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. 
     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. Sec. 53. This differed from a rescript. (q.v.) 

PRAYER, chanc. pleadings. That part of a bill which asks for relief. 
     2. The skill of the solicitor is to be exercised in framing this part 
of the bill. An accurate specification of the matters to be decreed in 
complicated cases, requires great discernment and experience; Coop. Eq. Pl. 
13; it is varied as the case is made out, concluding always with a prayer of 
general relief, at the discretion of the court. Mitf. Pl. 45. 

PRAYER OF PROCESS, chanc. plead. That part of a bill which prays that the 
defendant be compelled to appear and answer the bill, and abide the 
determination of the court on the subject, is called prayer of process. This 
prayer must contain the name's of all Persons who are intended to be made 
parties. Coop. Eq. Pl. 16; Story, Eq. Pl. Sec. 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. Sec. 40; 4 Bouv. Inst. n. 4174-6. 

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. Sec. 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. Sec. 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. Sec. 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. 
     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 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 they give testimony at the trial. Ersk. 
Princ. B. 4, t. 4, n. 49. 

PRECONTRACT. An engagement entered into by a person, which renders him 
unable to enter into another; as a promise or covenant of marriage to be had 
afterwards. When made per verba de presenti, it is in fact a marriage, and 
in that case the party making it cannot marry another person. 

PREDECESSOR. One who has preceded another. 
     2. This term is applied in particular to corporators who are now no 
longer such, and whose rights have been vested in their successor; the word 
ancestor is more usually applicable to common persons. The predecessor in a 
corporation stands in the same relation to the successor, that the ancestor 
does to the heir. 
     3. The term predecessor is also used to designate one who has filled an 
office or station before the present incumbent. 

PRE-EMPTION, intern. law. The right of preemption is the right of a nation 
to detain the merchandise of strangers passing through her territories or 
seas, in order to afford to her subjects the preference of purchase. 1 Chit. 
Com. Law, 103; 1 Bl. Com. 287. 
     2. This right is sometimes regulated by treaty. In that which was made 
between the United States and Great Britain, bearing 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; and the captors, or in their default, the government 
under whose authority they act, shall pay to the masters or owners of such 
vessel the full value of all articles, with a reasonable mercantile profit 
thereon, together with the freight, and also the damages incident to such 
detention." See Mann. Com. B. 3, c. 8. 
     3. By the laws of the United States the right given to settlers of 
public lands, to purchase them in preference to others, is called the 
preemption right. See act of L. April 29, 1830, 4 Sharsw. Cont. of Story, U. 
S. 2212. 

PREFECT, French law. A chief officer invested with the superintendence of 
the administration of the laws in each department. Merl. Repert. h.t. 

PREFERENCE. The paying or securing to one or more of his creditors, by an 
insolvent debtor, the whole or a part of their claim, to the exclusion of 
the rest. By preference is also meant the right which a creditor has 
acquired over others to be paid first out of the assets of his debtor, as, 
when a creditor has obtained a judgment against his debtor which binds the 
latter's land, he has a preference. 
     2. Voluntary preferences are forbidden by the insolvent laws of some of 
the states, and are void, when made in a general assignment for the benefit 
of creditors. Vide Insolvent; Priority. 

PREGNANCY, med. jurisp. This is defined by medical writer; to be the state 
of a female who has within her ovary or womb, a fecundated germ which 
gradually becomes developed in the latter receptaale. Dunglison's Med. Diet. 
h.t. 
     2. The subject may be considered with reference to the signs of 
pregnancy; its duration; and the laws relating to it. 
     3.-Sec. 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 pretended, renders it necessary that an inquiry should take 
place to ascertain whether a woman has or has not been pregnant. 
     4. There are certain signs which usually indicate this state; these 
have been divided into those which affect the system generally, and those 
which affect the uterus. 
     5.-1. The changes observed in the system from conception and 
pregnancy, are principally the following; namely, increased irritability of 
temper, melancholy, a languid cast of countenance, nausea, heart-burn, 
loathing of food, vomiting in the morning, an increased salivary discharge, 
feverish neat, with emaciation and costiveness, occasionally depravity of 
appetite, a congestion in the head, which gives rise to spots on the face, 
to headache, and erratic pains in the face and teeth. The pressure of 
increasing pregnancy, occasions protrusion of the umbilicus, and, sometimes, 
varicose tumors or anasarcous swellings of the lower extremities. The 
breasts also enlarge, an areola, or brown circle is observed around the 
nipples, and a secretion of lymph, composed of milk and water, takes place. 
It should be remembered that these do not occur in every pregnancy, but many 
of them in most cases. 
     6.-2. The changes which affect the uterus, are, a suppression and 
cessation of the menses; an augmentation in size of the womb, which becomes 
perceptible between the eighth and tenth weeks; as time progresses, the 
enlargement continues about the middle of pregnancy, the woman feels the 
motion of the child, and this is called quickening. (q.v.) The vagina is 
also subject to alteration, as its glands throw out more mucus, and 
apparently prepare the parts for the passage of the foetus. Ryan's Med. Jur. 
112, 113, 1 Beck's Med. Jur. 157, 158; 2 Dunglison's Human Physiology, 361. 
These are the general signs of pregnancy; it will be proper to consider them 
more minutely, though briefly, in detail. 
     7.-1. The expansion and enlargement of the abdomen. This sign is not 
visible during the early months of pregnancy, and by art in the disposition 
of the dress and the use of stays, it may be concealed for a much longer 
period. The corpulency of the woman or the peculiarity of her form, may also 
contribute to produce the same effect. In common cases, where there is no 
such obstacle, this sign is generally manifest at the end of the fourth 
month, and continues till delivery. But the enlargement may originate from 
disease; from suppression or retention of the menses; tympanites; dropsy; or 
schirrosity of the liver and spleen. Patient and assiduous investigation and 
professional skill are requisite to pronounce as to this sign, and all these 
may fail. Fodere, tome i. p. 443. Cyclop. of Practical Medicinae, 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 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 appetite, 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 foetus 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 
soufflet. 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 
membrane 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, Sec. 5. 
    15. It is, always difficult though perhaps not impossible to 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.- Sec. 2. The duration of human pregnancy is not certain, and 
probably is not the same in every woman. It may perhaps 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 & Fonb. 218, 230, 245; 
2 Dunglison's Human Physiology, 362; Ryan's Med. Jur. 121; 1 Fodere, M4d. 
Leg. Sec. 407-416. 
    17.-Sec. 3. The laws relating to pregnancy are to be considered, 
first, in reference to the fact of pregnancy; and, secondly, in relation 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 husband. 1 Bl. Com. 456; 
Cro. Eliz. 566; 4 Bro. C. C. 90; 2 P. Wms. 591; Cox's C. C. 297. In the 
civil law there was a similar practice. Dig. 25, 4. 
    20. The second cause of pretended pregnancy occurs when a woman has been 
sentenced to death, for the commission of a crime. At common law, in case 
this plea be made before execution, the court must direct a jury of twelve 
matrons, or discreet women, to ascertain the fact, and if they bring in 
their verdict quick with child, execution shall be staid generally till the 
next session of the court, and so from session to session till either she be 
delivered, or proves by the lapse of time, not to have been with child at 
all. 4 Bl. Com. 394, 395; 1 Bay, 487. It is proper to remark that a verdict 
of the matrons that the woman is pregnant is not sufficient, she must be 
found to be quick with child. (q.v.) 
    21. Whether under the English law a woman would be hanged who could be 
proved to be privement enceinte, beyond all doubt, is not certain; but in 
this country, it is presumed if it could be made to appear, indubitably: 
that the woman was pregnant, though not quick with child, the execution 
would be respited until after 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 
impanelled 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 his 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 of her child, unless the circumstances 
attending it be such as shall satisfy the mind of the jury, that she did 
willfully 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 husband; 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 
husband for its father. Nevertheless the husband 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 husband in the following cases: 1. 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 part, or 
where he has been of counsel for one of the parties. Vide Judge. 
     3. In the civil law prejudice signifies a tort or injury; as the act of 
one man should never prejudice another. Dig. 60, 17, 74. 

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 sign shall be made of the remainder of 
the assets, between the partners. 
     2. The partner who is entitled to a prelevement is not a creditor of 
the partnership; on the contrary he is a part owner for if the assets should 
be deficient, a creditor has a preference over the partner; on the other 
hand, should the assets yield any profit, the partner is entitled to his 
portion of it, whereas the creditor is entitled to no part of it, but he has 
a right to charge interest, when he is in other respects entitled to it. 

PREHENSION. The lawful taking of a thing with an intent to, assert a right 
in it. 

PRELIMINARY. Something which precedes, as preliminaries of peace, which are 
the first sketch of a treaty, and contain the principal articles on which 
both parties are desirous of concluding, and which are to serve as the basis 
of the treaty. 

PREMEDITATION. A design formed to commit a crime or to do some other thing 
before it is done. 
     2. Premeditation differs essentially from will, which constitutes the 
crime, because it supposes besides an actual will, a deliberation and a 
continued persistence 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 and additions, and in 
which are recited such deeds, agreements, or matters of fact, as are 
necessary to explain the reasons upon which the contract then entered into 
is founded; and it is here also the consideration on which it is made, is 
set down, and the certainty of the thing granted. 2 Bl. Com. 298. The 
technical meaning of the premises in a deed, is every thing which precedes 
the habendum. 8 Mass. R. 174; 6 Conn. R. 289. Vide Deed. 

PREMISES, equity pleading. That part of a bill usually denominated the 
stating part of the bill. It contains a narrative of the facts and 
circumstances of the plaintiff's case, and the wrongs of which he complains, 
and the names of the persons by whom done, and against whom he seeks 
redress. Coop. Eq. Pl..9; Bart. Suit in equity, 27; Mitf. Eq. Pl. by Jeremy, 
43; Story, Eq. Pl. Sec. 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 creditors 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. Sec. 296; 5 Ves. 286; 2 P. 
Wms. 432; 1 Black. R. 517; 3 Burr. 1568; 1 Fonb. Eq, B. 1, a. 4, Sec. 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, eccl. 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. 113, b; Pour pouvoir prescire, says the Code Civil, 1. 3, t. 20, art. 
22, 29, il faut une possession continue et non interrompue, paisible, 
publique, et a titre de proprietaire. See Knapp's R. 79. 
     2. The law presumes a grant before the time of legal memory when the 
party claiming by prescription, or those from whom he holds, have had 
adverse or uninterrupted possession of the property or rights claimed by 
prescription. This presumption may be a mere fiction, the commencement of 
the user being tortious; 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 prescriptive 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 results 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, 
Sec. 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 
and effect, and his presence is indispensable, unless, indeed, another 
person represent him as his attorney, having authority from him for that 
purpose. 
     3. In the criminal law, presence is actual or constructive. When a 
larceny is committed in a house by two men, united in the same design, and 
one of them goes into the house, arid commits the crime, while the other is 
on the outside watching to prevent a surprise, the former is actually, an 
the latter constructively, present. 
     4. It is a rule in the civil law, that he who is incapable of giving 
his consent to an act, is not to be considered present, although he be 
actually in the place; a lunatic, or a man sleeping, would not therefore be 
considered present. Dig. 41, 2, 1, 3. And so, if insensible; 1 Dougl. 241; 4 
Bro. P. R. 71; 3 Russ. 441; or if the act were done secretly so that he knew 
nothing of it. 1 P. Wms. 740. 
     5. The English statute of fraud, Sec. 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 standing in the street before the office of her 
solicitor, the witness retired into the office to attest it, and it being 
proved that the carriage was accidentally put back, so that she was in a 
situation to see the witness sign the will through the window of the office. 
Bro. Ch. C. 98; see 2 Curt. R. 320; 2 Salk. 688; 3 Russ. R. 441; 1 Maule & 
Selw. 294; 2 Car.& P. 491 2 Curt. R. 331. Vide Constructive. 

PRESENT. A gift, or wore properly the thing given. It is provided by the 
constitution of the United States, art. 1, s. 9, n, 7, that "no person 
holding any office of profit or trust under them, [the United States] shall, 
without the consent of congress, accept of any present, emolument, or 
office, or title of any kind whatever, from any king, prince, or foreign 
state." 

PRESENTS. This word signifies the writing then actually made and spoken of; 
as, these presents; know all men by these presents, to all to whom these 
presents shall come. 

PRESENTATION, eccl. law. The act of a patron offering his clerk to the 
bishop of the diocese to be instituted in a church or benefice. 

PRESENTEE, eccl. 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 employed 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. 
     2. The difference between a presentment and an inquisition, (q.v.) is 
this, that the former is found by a grand jury authorized to inquire of 
offences generally, whereas the latter is an accusation found by a jury 
specially returned to inquire concerning the particular offence. 2 Hawk. c. 
25, s. 6. Vide, generally, Com. Dig. Indictment, B Bac. Ab. Indictment, A 1 
Chit. Cr. Law, 163; 7 East, R. 387 1 Meigs. 112; 11 Humph. 12. 
     3. The writing which contains the accusation so presented by a grand 
jury, is also called a presentment. Vide 1 Brock. C. C. R. 156; Grand Jury. 

PRESENTMENT, contracts. The production of a bill of exchange or promissory 
note to the party on whom the former is drawn, for his acceptance, or to the 
person bound to pay either, for payment. 
     2. The holder of a bill is bound, in order to hold the parties to it 
responsible to him, to present it in due time for acceptance, and to give 
notice, if it be dishonored, to all tho parties he intends to hold liable. 
And when a bill or note becomes payable, it must be presented for payment. 
     3. The principal circumstances concerning presentment, are the person 
to whom, the place where, and the time when, it is to be made. 
     4.-1. In general the presentment for payment should be made to the 
maker of a note, or the drawee of a bill for acceptance, or to the acceptor, 
for payment; but a presentment made at a particular place, when payable 
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. 
     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, Sec. 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. Sec. 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, Sec. 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 Raym. 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, Sec. 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, Sec. 374; Story on P. N. Sec. 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, Sec. 284; Story on Bills, Sec. 372; 2 
How. S. C. R. 427, 457. 
    10. A want of presentment may be waived by the party to be affected, 
after a full knowledge of the fact. 8 S. & R. 438; see 6 Wend. 658; 3 Bibb, 
102; 5 John. 385; 4 Mass. 347; 7 Mass. 452; Wash. C. C. R. 506; Bac. Ab. 
Merchant, &c. M. Vide, generally, 1 Hare & Wall. Sel. Dec. 214, 224. See 
Notice of dishonor. 

PRESERVATION. keeping safe from harm; avoiding injury. This term always 
presupposes a real or existing danger. 
     2. A jettison, which is always for the preservation of the remainder of 
the cargo, must therefore be made only when there is a real danger existing. 
See Average; Jettison. 

PRESIDENT. An officer of a company who is to direct the manner in which 
business is to be transacted. From the decision of the president there is an 
appeal to the body over which he presides. 

PRESIDENT OF THE UNITED STATES OF AMERICA. This is the title of the 
executive officer of this country. 
     2. The constitution directs that the executive power shall be vested in 
a president of the United States of America. Art. 2, s. 1. 
     3. This subject will be examined by considering, 1. His qualifications. 
2. Hi's election. 3. The duration of his office. 4. His compensation. 5. His 
powers. 
     4.-Sec. 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.-Sec. 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 Const. Sec. 
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.-Sec. 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.-Sec. 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. 
     8.-Sec. 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 impeachment. Art. 2, s. 2, n. 2. He may appoint all officers of the 
United States, whose appointments are not otherwise provided for in the 
constitution, and which shall be established by law, when congress shall 
vest the appointment of such officers in the president alone. Art. 2, s. 2, 
n. 2. He shall have power to fill up all vacancies that may happen during 
the recess of the senate, by granting commissions, which shall expire at the 
end of their next session. Art. 2, sect. 2, n. 3. He shall from time to time 
give congress information of the state of the Union, and recommend to their 
consideration such measures as he shall judge necessary and expedient; he 
may, on extraordinary occasions, convene both houses, or either of them, and 
in case of disagreement between them with respect to the time of 
adjournment, he may adjourn them to such time as he shall think proper he 
shall receive ambassadors and other public ministers; he shall take care 
that the laws be faithfully executed, and shall commission all officers of 
the United States. 
    10.-2. His power, with the concurrence of the senate, is as follows: to 
make treaties, provided two-thirds of the senators present concur; nominate, 
and by and with the advice and consent of the senate, shall appoint 
ambassadors, other public ministers and consuls, judges of the supreme 
court, and all other officers of the United States whose appointments are 
not provided for in the constitution, and which have been established by 
law; but the congress may by law vest the appointment of such inferior 
officers, as they shall think proper, in the president alone, in the courts 
of law, or in the heads of departments. Art. 2, s. 2, n. 2. Vide 1 Kent, 
Com. Lect. 13; Story on the Const. B. 3, ch. 36; Rawle on the Const. Index, 
h.t.; Serg. Const. L. Index, h.t. 

PRESS. By a figure this word signifies the art of printing. The press is 
free. 
     2. All men have a right to print and publish whatever they may deem 
proper, unless by doing so they infringe the rights of another, as in the 
case of copyrights, (q.v.) when they may be enjoined. For any injury they 
may commit against the public or individuals they may be punished, either by 
indictment, or by a civil action at the suit of the party injured, when the 
injury has been committed against a private individual. Vide Const. of the 
U. S. Amend. art. 1, and Liberty of the Press. 

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 McCord, R. 439; 4 Burr. 
1963; Lofft, 320; 1 T. R. 271; 6 East, R. 215; 1 Campb. R. 29. An example of 
another nature is given under this head by the civilians. If a mother and 
her infant at the breast perish in the same conflagration, the law presumes 
that the mother survived, and that the infant perished first, on account of 
its weakness, and on this ground the succession belongs to the heirs of the 
mother. See Death, 9 to 14. 
     6. Legal presumptions are of two kinds: first, such as are made by the 
law itself, or presumptions of mere law; secondly, such as are to be made by 
a jury, or presumptions of law and fact. 
     7.-1st. Presumptions of mere law, are either absolute and conclusive; 
as, for instance, the presumption of law that a bond 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 and warranted by the law as the proper 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 of his heirs 
who is entitled to a legitime, (q.v.) in the succession. 
     2. Among the Romans, the preterition of children when made by the 
mother were presumed to have been made with design; the preterition of sons 
by any other testator was considered as a wrong and avoided the will, except 
the will of a soldier in service, which was not subject to so much form. 

PRETEXT. The reasons assigned to justify an act, which have only the 
appearance of truth, and which are without foundation; or which if true are 
not the true reasons for such act. Vattel, liv. 3, c. 3, 32. 

PRETIUM AFFECTIONIS. An imaginary value put upon a thing by the fancy of the 
owner in his affection for it, or for the person from whom he obtained it. 
Bell's Dict. h.t. 
     2. When an injury has been done to an article, it has been questioned 
whether in estimating the damage there is any just ground in any case, for 
admitting the pretium affectionis? It seems that when the injury has been 
done accidentally by culpable negligence, such an estimation of damages 
would be unjust, but when the mischief has been intentional, it ought to be 
so admitted. Kames on Eq. 74, 75. 

PREVARICATION. Praevaricatio, civil law. The acting with unfaithfulness and 
want of probity. The term is applied principally to the act of concealing a 
crime. Dig. 47, 15, 6. 

PREVENTION, civil and French law. The right of a judge to take cognizance of 
an action over which he has concurrent jurisdiction with another judge. 
     2. In Pennsylvania it has been ruled that a justice of the peace cannot 
take cognizance of a cause which has been previously decided by another 
justice. 2 Dall. 77; Id. 114. 

PRICE, contracts. The consideration in money given for the purchase of a 
thing. 
     2. There are three requisites to the quality of a price in 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. 
     5.-3. The third quality of a price is, that it consists in money, to be 
paid down, or at a future time, for if it be of any thing else, it will no 
longer be a price, nor the contract a sale, but exchange or barter. Poth. 
Vente, n. 30; 16 Toull. n. 147. 
     6. The true price of a thing is that for which things of a like nature 
and quality are usually sold in the place where situated, if real property; 
or in the place where exposed to sale, if personal. Poth. Contr. de Vente, 
n. 243. The first price or cost of a thing does not always afford a sure 
criterion of its value. It may have been bought very dear or very cheap. 
Marsh. Ins. 620, et seq.; Ayliffe's Pand. 447; Merlin, Repert. h.t.; 4 Pick. 
179; 8 Pick. 252; 16 Pick. 227. 
     7. In a declaration in trover it is usual, when the chattel found is a 
living one, to lay it as of such a price when dead, of such a value. 8 
Wentw. Pl. 372, n; 2 Lilly's Ab. 629. Vide Bouv. Inst. Index, h.t.; 
Adjustment; Inadequacy of price; Pretium affectionis. 

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. 
     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 EVIDENCE. 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. Sec. 58. 

PRIMATE, eccl. 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. Sec. 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 generally 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. 
     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 used 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. 
Sec. 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 his 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 husband 
generally appoints for both. Perhaps for her separate property she may, with 
her husband, appoint an agent or attorney; Cro. Car. 165,; 2 Leon. 200; 2 
Bulst. R. 13; but this seems to be doubted. Cro. Jac. 617; Yelv. 1; 1 
Brownl. 134; 2 Brownl. 248; Adams' Ej. 174; Runn. Ej. 148. 
     4. A principal has rights which he can enforce, and is liable to 
obligations which he must perform. These will be briefly considered: 1. The 
rights to which principals are entitled arise from obligations due to them 
by their agents, or by third persons. 
     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 in 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. 
Sec. 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. Sec. 
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. Sec. 109, 111, 403, 410, 417, 440; Paley, Ag. by Lloyd, 
21, 22; Marsh. Ins. b. 1, c. 8, Sec. 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. Sec. 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. 
    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. Sec. 335 Story, Bailm. Sec. 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. Sec. 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 
fulfill 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. Sec. 
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. Sec. 89, 90, 91; and articles Assent; Consent. 
     3. The principal is liable to third persons for the misfeasance, 
negligence, or omission of duty of his agent; but he has a remedy over 
against the agent, when the injury has occurred in consequence of his 
misconduct or culpable neglect; Story, Ag. Sec. 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, willful 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. 
     2. Principals are of two kinds; namely, 1. Principals in the first 
degree, are those who have actually with their own hands committed the fact, 
or have committed it through an innocent agent incapable himself, of doing 
so; as an example of the latter kind, may be mentioned the case of a person 
who incites a child wanting discretion, or a person non compos, to the 
commission of murder, or any other crime, the incitor, though absent, when 
the crime was committed, is, ex necessitate, liable for the acts of his 
agent and is a principal in the first degree. Fost. 340; 1 East, P. C. 118; 
1 Hawk. c. 31, s. 7; 1 N. R. 92; 2 Leach, 978. It is not requisite that each 
of the principals should be present at the entire transaction. 2 East, P. C. 
767. For example, where several persons agree to forge an instrument, and 
each performs some part of the forgery in pursuance of the common plan, each 
is principal in the forgery, although one may be away when it is signed. R. 
& R. C. C. 304; Mo. C. C. 304, 307. 
     3.-2. Principals in the second degree, are those who were present 
aiding and abetting the commission of the fact. They are generally termed 
aiders and abettors, and sometimes, improperly, accomplices. (q.v.) The 
presence which is required in order to make a man principal in the second 
degree, need not be a strict actual, immediate presence, such a presence as 
would make him an eye or ear witness of what passes, but may be a 
constructive presence. It must be such as may be sufficient to afford aid 
and assistance to the principal in the first degree. 9 Pick. R. 496; 1 
Russell, 21; Foster, 350. 
     4. It is evident from the definition that to make a wan a principal, he 
must be an actor in the commission of the crime and, therefore, if a man 
happen merely to be present when a felony is committed without taking any 
part in it or aiding those who do, he will not, for that reason, be 
considered a principal. 1 Hale, P. C. 439; Foster, 350. 

PRINCIPAL CONTRACT. One entered into by both parties, on their own accounts, 
or in the several qualities they assume. It differs from an accessory 
contract. (q.v.) Vide Contract. 

PRINCIPAL OBLIGATION. That obligation which arises from the principal object 
of the engagement which has been contracted between the parties. It differs 
from an accessory obligation. (q.v.) For example, in the sale of a horse, 
the principal obligation of the seller is to deliver the horse; the 
obligation to take care of him till delivered is an accessory engagement. 
Poth. Obl. n. 182. By principal obligation is also understood tho engagement 
of one who becomes bound for himself and not for the benefit of another. 
Poth. Obl. n. 186. 

PRINCIPLES. By this term is understood truths or propositions so clear that 
they cannot be proved nor contradicted, unless by propositions which are 
still clearer. They are of two kinds, one when the principle is universal, 
and these are known 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 
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 guaranteed 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 voluntary 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. 

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 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 confined 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. 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 husbands. 
     3. The debts which are privileged on particular movables, are, 1. The 
debt of a workman or artisan 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 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. Sec. 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. 
Sec. 3; Story, Const. Sec. 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. 
     9. Ambassadors are wholly exempt from arrest for civil or criminal 
cases. 
     Vide Ambassador. See, generally, Bac. Ab. h.t.; 2 Rolle's Ab. 272; 2 
Lilly's Reg. 369; Brownl. 15; 13 Mass. R. 288; 1 Binn. R. 77; 1 H. Bl. 686; 
Bouv. Inst. Index, h.t. 

PRIVILEGED COMMUNICATIONS. Those statements made by a client to his counsel 
or attorney, or solicitor, in confidence, relating to some cause Or action 
then pending or in contemplation. 
     2. Such communications cannot be disclosed without the consent of the 
client. 6 M. & W. 587; 8 Dow]. 774; 2 Yo. & C. 82; 1 Dowl. N. S. 651; 9 
Mees. & W. 508. See Confidential communication. 

PRIVILEGIUM CLERICALE. The same as benefit of clergy. 

PRIVITY. The mutual or successive relationship to the same rights of 
property. 1 Greenl. Ev. Sec. 189; 6 How. U. S. R. 60. 

PRIVITY OF CONTRACT. The relation which subsists between two contracting 
parties. Hamm. on Part. 182. 
     2. From the nature of the covenant entered into by him, a lessee has 
both privity of contract and of estate; and though by an assignment of his 
lease he may destroy his privity of estate, still the privity of contract 
remains, and he is liable on his covenant notwithstanding the assignment. 
Dougl. 458, 764; Vin. Ab. h.t. 6 How. U. S. R. 60. Vide Privies. 

PRIVITY OF ESTATE. The relation which subsists between a landlord and his 
tenant. 
     2. It is a general rule that a termor cannot transfer the tenancy or 
privity of estate between himself and his landlord, without the latter's 
consent: an assignee, who comes in only in privity of estate, is liable only 
while he continues to be legal assignee; that is, while in possession under 
the assignment. Bac. Ab. Covenant, E 4; Woodf. L. & T. 279; Vin. Ab. h: t.; 
Hamm. on Part. 132. Vide Privies. 

PRIVY. One who is a partaker, or has an interest in any action, matter or 
thing. 

PRIVY COUNCIL, Eng. law. A council of state composed of the king and of such 
persons as he may select. 

PRIVY SEAL, Eng. law. A seal which the king uses to such grants or things as 
pass the great seal. 2 Inst. 554. 

PRIVY VERDICT. One which is delivered privily to a judge out of court. 

PRIZE, mar. law, war. The apprehension and detention at sea, of a ship or 
other vessel, by authority of a belligerent power, either with the design of 
appropriating it, with the goods and 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 captors, 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 Ship. 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 subsisting 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. Sec. 675. 
     3. By prize is also meant a thing which is won by putting into a 
lottery. 

PRIZE COURT, Eng. law The name of court which has jurisdiction of all 
captures made in war on the high seas. 
     2. In England this is a separate branch of the court of admiralty, the 
other branch being called the instance court. (q.v.) 
     3. The district courts of the United States have jurisdiction both as 
instance and prize courts, there being no distinction in this respect as in 
England. 3 Dall. 6; vide 1 Gall. R. 563; Bro. Civ. & Adm. Law, ch. 6 & 7; 1 
Kent, Com. 356; Mann. Comm. B. 3, c. 12. 

PRO. A Latin proposition signifying `for.' As to its effects in contracts, 
vide Plowd. 412. 

PRO AND CON. For and against. For example, affidavits are taken pro and con. 

PRO CONFESSO, chan. pract. For confessed. 
     2. When the defendant has been served personally with a subpoena, or 
when not being so served has appeared, and afterwards neglects to answer the 
matter contained in the bill, it shall be taken pro confesso, as if the 
matter were confessed by the defendant. Blake's Ch. Pr. 80; Newl. Ch. Pr. c. 
1, s. 12; 1 Johns. Cb. Rep. 8. It also be taken pro confesso if the manner 
is sufficient. 4 Vin. Ab. 446 2 Atk. 24 3 Ves. 209; Harr. Ch. Pr. 154. Vide 
4 Ves. 619, and the cases there cited. 

PRO-CURATORS, PRO-TUTORS. Persons who act as curators or tutors, without 
being lawfully authorized. They are, in general, liable to all the duties of 
curators or tutors, and are entitled to none of the advantages which legal 
curators or tutors can claim. 

PRO EO QUOD, pleading. For this that. It is a phrase of affirmation, and is 
sufficiently direct and positive for introducing a material averment. 1 
Saund. 117, n. 4; 1 Com. Dig. Pleader, c. 86 2 Chit. Pl. 369-393 Gould on 
Pl. c. 3, 34. 

PRO INDIVISO. For an undivided part. The possession or occupation of lands 
or tenements belonging to two or mare persons, and consequently neither 
knows his several portion till divided: Bract. 1. 5. 

PRO QUERENTE. For the plaintiff; usually abbreviated, pro quer. 

PRO RATA. According to the rate, proportion or allowance. A creditor of an 
insolvent estate, is to be paid pro rata with creditors of the same class. 

PRO RE NATA. For the occasion as it may arise. 

PRO TANTO. For so much. See 17 Serg. & Rawle, 400. 

PROAMITA. Great paternal aunt; the sister of one's grandfather. Inst. 3, 6, 
3 & 4; Dig. 38, 10, 10, 14, et seq. 

PROAVUS. Great grandfather. This term is employed in making genealogical 
tables. 

PROBABILITY. That which is likely to happen; that which is most consonant to 
reason; for example, there is a strong probability that a man of a good 
moral character, and who has heretofore been remarkable for truth, will, 
when examined as a witness under oath, tell the truth; and, on the contrary, 
that a man who has been guilty of perjury, will not, under the same 
circumstances, tell the truth; the former will, therefore, be entitled to 
credit, while the latter will not. 

PROBABLE. That which has the appearance of truth; that which appears to be 
founded in reason. 

PROBABLE CAUSE. When there are grounds for suspicion that a person has 
committed a crime or misdemeanor, and public justice and the good of the 
community require that the matter should be examined, there is said to be a 
probable cause for, making a charge against the accused, however malicious 
the intention of 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. 

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. Sec. 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. Proceedings 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 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. Sec. 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, which 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 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 Penna. 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, Sec. 1, p. 22, 4th 
ed.; Manufacture; Method. 

PROCESS, MESNE, practice. 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 GARNISHMENT, 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 interplead, 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. Sec. 802. 

PROCESSIONING. A term used in Tennessee to signify the manner of 
ascertaining the boundaries of land, as provided for by the laws of that 
state. Carr. & Nich. Comp. of Stat. of Tenn. 348. The term is also used in 
North Carolina. 3 Murph. 504; 3 Dev. 268. 

PROCHEIN. Next. This word is frequently used in composition; as, prochein 
amy, prochein cousin, and the like. Co. Lit. 10. 

PROCHEIN AMY, more correctly prochein ami. Next friend. 
     2. He who, without being appointed guardian, sues in the name of an 
infant for the recovery of the rights of the latter, or does such other acts 
as are authorized by law; as, in Pennsylvania, to bind the infant 
apprentice. 3 Serg. & Rawle, 172; 1 Ashm. Rep. 27. For some of the rules 
with respect to the liability or protection of a prochein amy, see 4 Madd. 
461; 2 Str. 709; 3 Madd. 468; 1 Dick. 346; 1 Atk. 570; Mosely, 47, 85; 1 
Ves. Jr. 409; 10 Ves. 184; 7 Ves. 425; Edw. on Parties, 182 to 204. 

PROCLAMATION, evidence. The act of causing some state matters to be 
published or made generally known. A written or printed document in which 
are contained such matters, issued by proper authority; as the president's 
proclamation, the governor's, the mayor's proclamation. The word 
proclamation is also used to express the public nomination made of any one 
to a high office; as, such a prince was proclaimed emperor. 
     2. The president's proclamation has not the force of law, unless when 
authorized by congress; as if congress were to pass an act, which should 
take effect upon the happening of a contingent event, which was to be 
declared by the president by proclamation to hive happened; in this case the 
proclamation would give the act the force of law, which, till then, it 
wanted. How far a proclamation is evidence of facts, see Bac. Ab. Ev. F; 
Dougl. 594, n; B. N. P. 226; 12 Mod. 216; 8 State Tr. 212; 4 M. & S. 546; 2 
Camp. Rep. 44; Dane's Ab. eh. 96, a. 2, 3 and 4; 1 Scam. R. 577; Bro. h.t. 

PROCLAMATION, practice. The declaration made by the cryer, by authority of 
the court, that something is about to be done. 
     2. It usually commences with the French word Oyez, do you hear, in 
order to attract attention; it is particularly used on the meeting or 
opening of the court, and at its adjournment; it is also frequently employed 
to discharge persons who have been accused of crimes or misdemeanors. 

PROCLAMATION OF EXIGENTS, Eng. law. On awarding an exigent, in order to 
outlawry, a writ of proclamation issues to the sheriff of the county where 
the party dwells, to make three proclamations for the defendant to yield 
himself, or be outlawed. 

PROCLAMATION OF REBELLION, Eng. law. When a party neglects to appear upon a 
subpoena, or an attachment in the chancery, a writ bearing this name issues, 
and if he does not surrender himself by the day assigned, he is reputed, and 
declared a rebel. 

PROCREATION. The generation of children; it is an act authorized by the law 
of nature: one of the principal ends of marriage is the procreation of 
children. Inst. tit. 2, in pr. 

PROCTOR. One appointed to represent in judgment the party who empowers him, 
by writing under his hand called a proxy. The term is used chiefly in the 
courts of civil and ecclesiastical law. The proctor is somewhat similar to 
the attorney. Avl. Parerg. 421. 

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, eccl. law. Certain sums of money which parish priests pay 
yearly to the bishops or archdeacons ratione visitationis. it 3, 39, 25; 
Ayl. Parerg. 429; 17 Vin. Ab. h.t., pa e 544. 

PROCURATOR, civil law. A proctor; a person who acts for another by virtue of 
a procuration. Procurator est, qui aliena negotia mandata Domini 
administrat. Dig 3, 3, 1. Vide Attorney; Authority. 

PROCURATOR in rem suam. Scotch law. This imports that one is acting as 
attorney as to his own property. When an assignment of a thing is made, as a 
debt, and a procuration or power of attorney is given to the assignee to 
receive the same, he is in such case procurator in rein suam. 3 Stair's 
Inst. 1, Sec. 2, 3, &c.; 3 Ersk. 5, Sec. 2; 1 Bell's Com. B. 5, c. 2, s. 1, 
Sec. 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 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, 
Sec. 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. 
     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 insurance. 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 and 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. Stratford, 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. 
    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 such, 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. Sec. 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. Sec. 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. 

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 children, 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. 
     3. In order to be binding on the promisor, the promise must be made 
upon a sufficient consideration -- when made without consideration, however, 
it may be binding in foro conscientice, it is not obligatory in law, being 
nudum pactum. Rutherf. Inst. 85; 18 Eng. C. L. Rep. 180, note a; Merl. Rep. 
h.t. 
     4. When a promise is made, all that is said at the time, in relation to 
it, must be considered; if, therefore, a man promise to pay all he owes, 
accompanied by a denial that he owes anything, no action will lie to enforce 
such a promise. 15 Wend. 187. 
     5. And when the promise is conditional, the condition must be performed 
before it becomes of binding force. 7 John. 36. Vide Condition. Promises are 
express or implied. Vide Undertaking, and 5 East, 17 2 Leon. 224, 5; 4 B. & 
A. 595. 

PROMISE OF MARRIAGE. A contract mutually entered into by a man and a woman 
capable of contracting matrimony, that they will marry each other. 
     2. When one of the contracting parties violates his or her promise to 
the other, the latter may support an action against the former for damages, 
which are sometimes very liberally given. To entitle the plaintiff to 
recover damages, however, the defendant must not have been incapable of 
making the contract at, the time, and such incapacity must not have been 
known to the opposite party; as, if a married man were to promise to marry a 
woman, and he afterwards refused to do so. 
     3. The canon law punished these breaches of promises by ecclesiastical 
censures. 
     4. According to the ancient jurisprudence of France, damage's could 
have been recovered for the in execution of this engagement, and cases are 
reported which show a considerable liberality on this subject. M. Maynon, 
counsellor in the parliament of Paris, was condemned to sixty thousand 
livres damages; and a M. Hebert to fourteen thousand livres. D'Hericourt, 
Lois Ecclesiastiques, titre du Mariage, art. 1, n. 13. By the modern law of 
France, damages may be recovered for the violation of this contract. 
     5. In Germany and Holland damages may also be recovered. Voet, in 
Pandectas, 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 
induced 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 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 fulfill his promise, unless when it is 
contrary to law, as a promise to steal or to commit an assault and battery; 
when the fulfillment 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. 
     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.) 

PRONURUS. The wife of a great grandson. 

PROOF, practice. The conviction or persuasion of the mind of a judge or 
jury, by the exhibition of evidence, of the reality of a fact alleged: as, 
to prove, is to determine or persuade that a thing does or does not exist. 8 
Toull. n. 2; Ayl. Parerg. 442; 2 Phil. Ev. 44, n, a. Proof is the perfection 
of evidence, for without evidence there is no proof, although, there may be 
evidence which does not amount to proof: for example, a man is found 
murdered at a spot where another had been seen walking but a short time 
before, this fact would be evidence to show that the latter was the 
murderer, but, standing alone, would be very far from proof of it. 
     2. Ayliffe defines judicial proof to be a clear and evident declaration 
or demonstration, of a matter which was before doubtful, conveyed in a 
judicial manner by fit and proper arguments, and likewise by all other legal 
methods; first, by proper arguments, such as conjectures, presumptions, 
indicia, and other adminicular ways and means; and, secondly, by legal 
method, or methods according to law, such as witnesses, public instruments, 
end the like. Parerg. 442 Aso. & Man. Inst. B. 3, t. 7. 

PROPER. That which is essential, suitable, adapted, and correct. 
     2. Congress is authorized by art, 1, s. 8, of the constitution of the 
United States, "to make all laws which shall be necessary and proper, for 
carrying into execution the foregoing powers, and all other powers vested by 
this constitution of the United States, in any department. or officer 
thereof." See Necessary and Proper. 

PROPERTY. The right and interest which a man has in lands and chattels to 
the exclusion of others. 6 Binn. 98; 4 Pet. 511; 17 Johns. 283; 14 East, 
370; 11 East, 290, 518. It is the right to enjoy and to dispose of certain 
things in the most absolute manner as he pleases, provided he makes no use 
of them prohibited by law. See Things. 
     2. All things are not the subject of property the sea, the air, and the 
like, cannot be appropriated; every one may enjoy them, but he has no 
exclusive right in them. When things are fully our own, or when all others 
are excluded from meddling with them, or from interfering about them, it is 
plain that no person besides the proprietor, who has this exclusive right, 
can have any, claim either to use them, or to hinder him from disposing of 
them as, he pleases; so that property, considered as an exclusive right to 
things, contains not only a right to use those things, but a right to 
dispose of them, either by exchanging them for other things, or by giving 
them away to any other person, without any consideration, or even throwing 
them away. Rutherf. Inst. 20; Domat, liv. prel. tit. 3; Poth. Des Choses; 18 
Vin. Ab. 63; 7 Com. Dig. 175; Com. Dig. Biens. See also 2 B. & C. 281; S. C. 
9 E. C. L. R. 87; 3 D. & R. 394; 9 B. & C. 396; S. C. 17 E. C. L. R. 404; 1 
C. & M. 39; 4 Call, 472; 18 Ves. 193; 6 Bing. 630. 
     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 reduced 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 possession 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 
fulfill his obligations. 2d. By confiscation, or sentence of a criminal 
court. 3d. By prescription. 4th. By civil death. 6th. By capture of a public 
enemy. 
    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 a 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. 

PROPRIA PERSONA. In his own person. It is a rule in pleading that pleas to 
the jurisdiction of the court must be pleaded in propria persona, because, 
if pleaded by attorney, they admit the jurisdiction, as an attorney is an 
officer of the court, and he is presumed to plead after having obtained 
leave, which admits the jurisdiction. Lawes on Pl. 91. 
     2. An appearance may be in propria persona, and need not be by 
attorney. 

PROPRIETARY. In its strict sense, this word signifies one who is master of 
his actions, and who has the free disposition of his property. During the 
colonial government of Pennsylvania, William Penn was called the 
proprietary. 
     2. The domain which William Penn and his family had in the state, was, 
during the Revolutionary war, divested by the act of June 28, 1779, from 
that family and vested in the commonwealth for the sum which the latter paid 
to them of one hundred and thirty thousand pounds sterling. 

PROPRIETATE PROBANDA. The name of a writ. See De proprietate probanda. 

PROPRIETOR. The owner. (q.v.) 

PROPRIO VIGORE. By its own force or vigor. This expression is frequently 
used in construction. A phrase is said to have a certain meaning proprio 
vigore. 

PROPTER AFFECTUM. For or on account of some affection or prejudice. A 
juryman may be challenged propter affectum; as, because he is related to the 
party has eaten at his expense, and the like. See Challenge, practice. 

PROPTER AFFECTUM. On account or for some defect. This phrase is frequently 
used in relation to challenges. A juryman may be challenged propter 
defectum; as, that he is a minor, an alien, and the like. See Challenge, 
practice. 

PROPTER DELICTUM. For or on account of crime. A juror may be challenged 
propter delictum, when he has been convicted of an infamous crime. See 
Challenge, practice. 

PROROGATED JURISDICTION, Scotch law. That jurisdiction, which, by the 
consent of the parties, is conferred upon a judge, who, without such 
consent, would be incompetent. Ersk. Prin. B. 1, t. 2, n. 15. 
     2. At common law, when a party is entitled to some privilege or 
exemption from jurisdiction, he may waive it, and then the jurisdiction is 
complete; but the consent cannot give jurisdiction. 

PROROGATION. To put off to another time. It is generally applied to the 
English parliament, and means the continuance of it from one day to another; 
it differs from adjournment, which is a continuance of it from one day to 
another in the same session. 1 Bl. Com. 186. 
     2. In the civil law, prorogation signifies the time given to do a thing 
beyond the term prefixed. Dig. 2, 14, 27, 1. See Prolongation. 

PROSCRIBED, civil law. Among the Romans, a man was said to be proscribed 
when a reward was offered for his head; but the term was more usually 
applied to those who were sentenced to some punishment which carried with it 
the consequences of civil death. Code, 9; 49. 

PROSECUTION, crim. law. The means adopted to bring a supposed offender to 
justice and punishment by due course of law. 
     2. Prosecutions are carried on in the name of the government, and have 
for their principal object the security and happiness of the people in 
general. Hawk. B. 2, c. 25, s. 3; Bac. Ab. Indictment, A 3. 
     3. The modes most usually employed to carry them on, are by indictment; 
1 Chit. Cr. Law, 132; presentment of a grand jury; Ibid. 133; coroner's 
inquest; Ibid. 134; and by an information. Vide Merl. Repert. mot 
Accusation. 

PROSECUTOR, practice. He who prosecutes another for a crime in the name of 
the government. 
     2. Prosecutors are public or private. The public prosecutor is an 
officer appointed by the government, to prosecute all offences; he is the 
attorney general or his deputy. 
     3. A private prosecutor is one who prefers an accusation against a 
party whom be suspects to be guilty. Every man may become a prosecutor, but 
no man is bound except in some few of the more enormous offences, as 
treason, to be one but if the prosecutor should compound a felony, he will 
be guilty of a crime. The prosecutor has an inducement to prosecute, because 
he cannot, in many cases, have any civil remedy until he has done his duty 
to society by an endeavor to bring the offender to justice. If a prosecutor 
act from proper motives, me will not be responsible to the party in damages, 
though he was mistaken in his suspicions; but if, from a motive of revenge, 
he institute a criminal prosecution without any reasonable foundation, he 
may be punished by being mulcted in damages in an action for a malicious 
prosecution. 
     4. In Pennsylvania a defendant is not bound to plead to an indictment 
where there is a private prosecutor, until his name shall have been indorsed 
on the indictment as such, and on acquittal of the defendant, in all cases 
except where the charge is for a felony, the jury may direct that he shall 
pay the costs. Vide 1 Chit. Cr. Law, 1 to 10; 1 Phil. Ev. Index, h.t.; 2 
Virg. Cas. 3, 20; 1 Dall. 5; 2 Bibb. 210; 6 Call. 245; 5 Rand. 669; and the 
article Informer. 

PROSPECTIVE. That which is applicable to the future; it is used in 
opposition to retrospective. To be just, a law ought always to be 
prospective. 1 Bouv. Inst. n. 116. 

PROSTITUTION. The common lewdness of a woman for gain. 
     2. In all well regulated communities this has been considered a heinous 
offence, for which the woman may be punished, and the keeper of a house of 
prostitution may be indicted for keeping a common nuisance. 
     3. So much does the law abhor this offence, that a landlord cannot 
recover for the use and occupation of a house let for the purpose of 
prostitution. 1 Esp. Cas. 13; 1 Bos. & Pull. 340, n. 
     4. In a figurative sense, it signifies the bad use which a corrupt 
judge makes of the law, by making it subservient to his interest; as, the 
prostitution of the law, the prostitution of justice. 

PROTECTION, merc. law, The name of a document generally given by notaries 
public, to sailors and other persons going abroad, in which is certified 
that the bearer therein named, is a citizen of the United States. 

PROTECTION, government. That benefit or safety which the government affords 
to the citizens. 

PROTECTION, Eng. law. A privilege granted by the king to a party to an 
action, by which he is protected from a judgment which would otherwise be 
rendered against him. Of these protections there are several kinds. F. N. B. 
65. 

PROTEST, mar. law. A writing, attested by a justice of the peace or a 
consul, drawn by the master of a vessel, stating the severity of a voyage by 
which a ship has suffered, and showing it was not owing to the neglect or 
misconduct of the master. Vide Marsh. Ins. 715, 716. See 1 Wash. C. R. 145; 
Id. 238; Id. 408, n.; 1 Pet. C. R. 119; 1 Dall. 6; Id. 10; Id. 317; 2 Dall. 
195; 3 Watts & Serg. 144; 3 Binn. 228, n.; 1 Yeates, 261. 

PROTEST, legislation. A declaration made by one or more members of a 
legislative 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 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 defendant 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 
protesting 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 the action in 
which it is made, but of such as is excluded from any 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. Sec. 375. 

PROTHONOTARY. The title given to an officer who officiates as principal 
clerk of some courts. Vin Ab. h.t. 
     2. In the ecclesiastical law, the name of prothonotary is given to an 
officer of the court of Rome, he is so called because he is the first 
notary; the Greek word prootos signifying primus or first. These notaries 
have preeminence over the other notaries, and, are put in the rank of 
prelates. There are twelve of them. Dict. de Jur. h.t. 

PROTOCOL, civil law, international law. A record or register. Among the 
Romans, protocollunt was a writing at the head of the first page of the 
paper used by the notaries or tabellions. Nov. 44. 
     2. In France the minutes of notarial acts were formerly transcribed on 
registers, which were called protocols. Toull. Dr. Civ. Fr. liv. 3, t. 3, c. 
6, s. 1, n. 413. 
     3. By the German law it signifies the minutes of any transaction. 
Eneye. Amer. Protocol. In the latter sense the word has of late been 
received into international law. Ibid. 

PROTUTOR, civil law. He who not being the tutor of a pupil or minor, has 
administered his property or affairs as if he had been, whether he thought 
himself legally invested with the authority of a tutor, or not. 
     2. He who marries a woman who is tutrix, becomes, by the marriage, a 
protutor. The protutor is equally responsible as the tutor. 

PROUT PATET PER RECORDUM. As appears by the record. This phrase is 
frequently used in pleading; as, for example, in debt on a judgment or other 
matter of record, unless when it is stated is an inducement, it is requisite 
after slowing the matter of record, to refer to it by the prout patet per 
recordum. 1 Chit. Pl. *356. 

PROVINCE. Sometimes this signifies the district into which a country has 
been divided; as, the province of Canterbury, in England the province of 
Languedoc, in France. Sometimes it means a dependency or colony; as, the 
province of New Brunswick. It is sometimes used figuratively, to signify 
power or authority; as, it is the province of the court to judge of the law, 
that of the jury to decide on the facts. 

PROVISION, com. law. The property which a drawer of a bill of exchange 
places in the hands of a drawee; as, for example, by remittances, or when 
the drawee is indebted to the drawer when the bill becomes due, provision is 
said to have been made. Acceptance always presumes a provision. See Code de 
Comm. art. 115, 116, 117. 

PROVISION, French law. An allowance granted by a judge to a party for his 
support; which is to be paid before there is a definitive judgment. In a 
civil case, for example, it is an allowance made to a wife who is separated 
from her husband. 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. 

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; Darw. on 
Stat. 660. 

PROVOCATION. The act of inciting another to do something. 
     2. Provocation simply, unaccompanied by a crime or misdemeanor, does 
not justify the person provoked to commit an assault and battery. In cases 
of homicide, it may reduce the offence from murder to manslaughter. But when 
the provocation is given for the purpose of justifying or excusing an 
intended murder, and the party provoked is killed, it is no justification. 2 
Gilb. Ev. by Lofft, 753. 
     3. The unjust provocation by a wife of her husband, 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 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, Sec. 1, art. 1. 

PROXIMITY. Kindred between two persons. Dig. 38, 16, 8. 

PROXY. A person, appointed in the place of another, to represent him. 
     2. In the ecclesiastical law, a judicial proctor, or one who is 
appointed to manage another man's law concerns, is called a proxy. Ayl. 
Parerg. 
     3. The instrument by which a person is appointed so to act, is likewise 
called a proxy. 
     4. Proxies are also annual payments made by the parochial clergy to the 
bishop, &c., on visitations. Tom. Law Dictionary, h.t. Vide Rutherf. Inst. 
253; Hall's Pr. 14. 
     5. The right of voting at an election of an incorporated company by 
proxy is not a general right, and the party claiming it must show a special 
authority for that purpose. Ang. on Corp. 67-69; 1 Paige's Ch. Rep. 590; 5 
Day's Rep. 329; 5 Cowen, Rep. 426. 

PUBERTY, civil law. The age in boys after fourteen years until full age, and 
in girls after twelve years until full age. Ayl. Pand. 63; Hall's Pract. 14; 
Toull. Dr. Civ. Fr. tom. 6, p. 100; Inst. 1, 22; Dig. 1, 7, 40, 1; Code, 5, 
60, 3. 

PUBLIC. By the term the public, is meant the whole body politic, or all the 
citizens of the state; sometimes it signifies the inhabitants of a 
particular place; as, the New York public. 
     2. A distinction has been made between the terms public and general, 
they are sometimes used as synonymous. The former term is applied strictly 
to that which concerns all the citizens and every member of the state; while 
the latter includes a lesser, though still a large portion of the community. 
Greenl. Ev. Sec. 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. 

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, Sec. 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. 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, Sec. 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. 

PUDZELD Eng. law. To be free from the payment of money for taking of wood in 
any forest. Co. Litt. 233 a. The same as Woodgeld. (q.v.) 

PUER. In its enlarged sense this word signifies a child of either sex; 
though in its restrained meaning it is applied to a boy only. 
     2. A case once arose which turned upon this question, whether a 
daughter could take lands under the description of puer, and it was decided 
by two judges against one that she was entitled. Dy. 337 b. In another case, 
it was ruled the other way. Rob. 33. 

PUERILITY, civil law. This commenced at the age of seven years, the end of 
the age of infancy, and lasted till the age of puberty, (q.v.) that is, in 
females till the accomplishment of twelve years, and in males, till the age 
of fourteen years fully accomplished. Ayl. Pand. 63. 
     2. The ancient Roman lawyers divided puerility into proximus infantiae, 
as it approached infancy, and into proximus pubertati, as it became nearer 
to puberty. 6 Toullier, n. 100. 

PUFFER, commerce, contracts. A person employed by the owner of property 
which is sold at auction to bid it up, who does so accordingly, for the 
purpose of raising the price upon bona fide bidders. 
     2. This is a fraud which at the choice of the purchaser invalidates the 
sale. 5 Madd. R. 37, 440; 3 Madd. R. 112; 12 Ves. 483; l Fonb. Eq. 227, n; 2 
Kent, Com. 423; 11 Serg. & Rawle, 86; Cowp. 395; 3 Ves. jun. 628; 6 T. R. 
642; 2 Bro. C. C. 326; 3 T. R. 93, 95; 1 P. A. Browne, Rep. 346; 2 Hayw. R. 
328; Sugd. Vend. 16; 4 Harr. & McH. 282; 2 Dev. 126; 2 Const. Rep. 821;. 3 
Marsh. 526. 

PUIS DARREIN CONTINUANCE, pleading. These old French words signify since the 
last continuance. 
     2. Formerly there were formal adjournments or continuances of the 
proceedings in a suit, for certain purposes, from one term to another; and 
during the interval the parties were of course out of court. When any matter 
arose which was a ground of defence, since the last continuance, the 
defendant was allowed to plead it, which allowance was an exception to the 
general rule that the defendant can plead but one plea of one kind or class. 
     3. By the modern practice the parties are, from the day when, by the 
ancient practice, a continuance would have been entered, supposed to be out 
of court, and the pleading is suspended till the day arrives to which, by 
the ancient practice, the continuance would extend; at that day, the 
defendant is entitled, 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. 
     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, Sec. 123-126; Steph. Pl. 81, 398; Lawes on 
Pl. 173; 1 Chit. Pl. 637; 5 Peters, Rep. 232; 3 Bl. Com. 316; Arch. Civ, Pl. 
353; Bac. Ab. Pleas, Q; 4 Mass. 659; 4 S. & R. 238; 1 Bailey, 369; 4 Verm. 
545; 11 John. 4; 24; 1 S. & R. 310; 3 Bouv. Inst. n. 3014-18. 

PUISNE. Since born; the younger; as, a puisne judge, is an associate judge. 

PUNCTUATION, construction. The act or method of placing points (q.v.) in a 
written or printed instrument. 
     2. By the word point is here understood all the points in grammar, as 
the comma, the semicolon, the colon, and the like. 
     3. All such instruments are to be construed without any regard to the 
punctuation; and in a case of doubt, they ought to be construed in such a 
manner that they may have some effect, rather than in one in which they 
would be nugatory. Vide Toull. liv. 3, t. 2, c. 5, n. 430; 4 T. R. 65; 
Barringt. on the Stat. 394, n. Vide article Points. 

PUNISHMENT, crim. law. Some pain or penalty warranted by law, inflicted on a 
person, for the commission of a crime or misdemeanor, or for the omission of 
the performance of an act required by law, by the judgment and command of 
some lawful court. 
     2. The right of society to punish, is derived by Becoaria, Mably, and 
some others, from a supposed agreement which the persons who composes the 
primitive societies entered into, in order to keep order and, indeed, the 
very existence of the state. According to others, it is the interest and 
duty of man to live in society; to defend this right, society may exert this 
principle in order to support itself, and this it may do, whenever the acts 
punishable would endanger 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, or 
capable of intimidating those who might be tempted to imitate the guilty; 
reformatory, or such as should improve the condition of the convicts; 
personal, or such as are at least calculated to wound the feelings or affect 
the rights of the relations of the guilty divisible, or capable of being 
graduated and proportioned to the offence, and the circumstances of each 
case; reparable, on account of the fallibility of human justice. 
     4. Punishments are either corporal or not corporal. The former are, 
death, which is usually denominated capital punishment; imprisonment, which 
is either with or without labor; vide Penitentiary; whipping, in some 
states, though to the honor of several of them, it is not tolerated in them; 
banishment and death. 
     5. The punishments which are not corporal, are fines; forfeitures; 
suspension or deprivation of some political or civil right deprivation of 
office, and being rendered incapable to hold office; compulsion to remove 
nuisances. 
     6. The object of punishment is to reform the offender; to deter him and 
others from committing like offences; and to protect society. Vide 4 Bl. 
Com. 7 Rutherf. Inst. B. 1, ch. 18. 
     7. Punishment to be just ought to be graduated to the enormity of the 
offence. It should never exceed what is requisite to reform the criminal and 
to protect society; for whatever goes beyond this, is cruelty and revenge, 
the relic of a barbarous age. All the circumstances under which the offender 
acted should be considered. Vide Moral Insanity. 
     8. The constitution of the United States, amendments, art. 8, forbids 
the infliction of "cruel and unusual punishments." 
     9. It has been well observed by the author of Principles of Penal Law, 
that "when the rights of human nature are not respected, those of the 
citizen are gradually disregarded. Those eras are in history found fatal to 
liberty, in which cruel punishments predominate. Lenity should be the 
guardian of moderate governments; severe penalties, the instruments of 
despotism, may give a sudden check to temporary evils, but they have a 
tendency to extend themselves to every class of crimes, and their frequency 
hardens the sentiments of the people. Une loi rigoureuse produit des crimes. 
The excess of the penalty flatters the imagination with the hope of 
impunity, and thus becomes an advocate with the offender for the 
perpetrating of the offence." Vide Theorie des Lois Criminelles, ch. 2; Bac. 
on Crimes and Punishments; Merl. Rep. mot Peine; Dalloz, Dict. mot Peine and 
Capital crimes. 
    10. Punishments are infamous or not infamous. The former continue 
through life, unless the offender has been pardoned, and are not dependent 
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. 
    11. Those punishments which are not infamous, are such as are inflicted 
on persons for misdemeanors, such as assaults and batteries, libels, and the 
like. Vide Crimes; Infamy; Penitentiary. 

PUNISHMENT OF DEATH. The deliberate killing, according to the forms of law,, 
of a person who has been lawfully convicted of certain crimes. See Capital 
crimes. 

PUPIL, civil law. One who is in his or her minority. Vide. Dig. 1, 7; Id. 
26, 7, 1, 2; Code, 6, 30, 18; Dig. 50, 16, 239. One who is in ward or 
guardianship. 

PUPILLARITY, civil law. That age of a person's life which included infancy 
and puerility. (q.v.) 

PUR. A corruption of the French word par, by or for. It is frequently used 
in old French law phrases; as, pur autre vie. It is also used in the 
composition of words, as purparty, purlieu, purview. 

PUR AUTRE VIE, tenures. These old French words signify, for another's life. 
An estate is said to be pur autre vie, when a lease is made of lands or 
tenements to a man, to hold for the life of another person. 2 Bl. Com. 259; 
10 Vin. Ab. 296; 2 Supp. to Ves. Jr. 41. 

PURCHASE. In its most enlarged and technical sense, purchase signifies the 
lawful acquisition of real estate by any means whatever, except descent. It 
is thus defined by Littleton, section 12. "Purchase is called the possession 
of lands or tenements that a man hath by his own deed or agreement, unto 
which possession he cometh, not by title of descent from any of his 
ancestors or cousins, but by his own deed." 
     2. It follows, therefore, that not only when a man acquires an estate 
by buying it for a good or valuable consideration, but also when it is given 
or devised to him be acquires it by purchase. 2 Bl. Com. 241. 
     3. There are six ways of acquiring a title by purchase, namely, 1. By, 
deed. 2. By devise. 3. By execution. 4. By prescription. 5. By possession, 
or occupancy. 6. By escheat. In its more limited sense, purchase is applied 
only to such acquisitions of lands as are obtained by way of bargain and 
sale for money, or some other valuable consideration. Id. Cruise, Dig. tit. 
30, s. 1, to 4; 1 Dall. R. 20. In common parlance, purchase signifies the 
buying of real estate and of goods and chattels. 

PURCHASER, contracts. A buyer, a vendee. 
     2. It is a general rule that all persons, capable of entering into 
contracts, may become purchasers both of real and personal property. 
     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 husbands 
may disagree to the contract, and divest the whole estate; the husband may 
further recover back the purchase-money. 1 Ld. Raym. 224; 1 Madd. Ch. R. 
258; 6 Binn. R. 429. When the husband neither, agrees nor disagrees, the 
purchase will be valid. After the husband's death, the wife may waive the 
purchase without assigning any cause for it, although the husband may have 
agreed to it; and if, after her husband's death, she do not agree to it, her 
heirs may waive it. Co. Lift. 3 a; Dougl. R. 452. 
     6.-3d. Lunatics, or idiots, who are capable of purchasing. It seems 
that although they recover their senses, they cannot of themselves waive the 
purchase; yet if, after recovering their senses, they agree to it, their 
heirs cannot set it aside. 2 Bl. Com. 291; and see 3 Day's R. 101. Their 
heirs may avoid the purchase when they die during their lunacy or idiocy. 
Co. Litt. 2 b. 
     7.-2. It is a general rule that trustees 2 Bro. C. C. 400; 3 Bro. C. C. 
483; 1 John. Ch. R. 36; 3 Desaus. Ch. R. 26; 3 Binn. Y. 59; unless they are 
nominally so, to preserve contingent remainders; 11 Ves, Jr. 226; agents; 8 
Bro. P. C; 42; 13 Ves. Jr. 95; Story, Ag. Sec. 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 ascertainment of the truth in a majority of such cases. 8 
Ves. Jr. 345. 
     8. The obligations of the purchaser resulting from the contract of 
sale, are, 1. To pay the price agreed upon in the contract. 2. To take away 
the thing purchased, unless otherwise agreed upon; and, 3. To indemnify the 
seller for any expenses he may have incurred to preserve it for him. Vide 
Sugd. on Vend. Index, h.t.; Ross on Vend. Index, h.t.; Long on Sales, Index, 
h.t.;  2 Supp. to Ves. Jr. 449, 267, 478; Yelv. 45; 2 Ves. Jr. 100; 8 Coin. 
Dig. 349; 3 Com. Dig. 108. 

PURCHASE-MONEY. The consideration which is agreed to be paid by the 
purchaser of a thing in money. It is the duty of the purchaser to pay the 
purchase-money as agreed upon in making the contract, and, in case of 
conveyance of an estate before it is paid, the vendor is entitled according 
to the laws of, England, which have been adopted in several of the states, 
to a lien on the estate sold for the purchase-money so remaining unpaid. 
This is called an equitable lien. This doctrine is derived from the civil 
law. Dig. 18, 1, 19. The case of Chapman v. Tauner, 1 Vera. 267, decided in 
1684, is the first where this doctrine was adopted. 7 S. & R. 73. It was 
strongly opposed, but is now firmly established in England, and in the 
United States. 6 Yerg. R. 50; 4 Bibb, R. 239 1 John. Ch. R. 308; 7 Wheat. R. 
46, 50 5 Monr. R. 287; 1 liar. & John. 106; 4 Har. & John. 522; 1 Call. R. 
414; 1 Dana, R. 576; 5 Munf. R. 342; Dev. Eq. R. 163 4 Hawks, R. 256; 5 
Conn. 468; 2 J. J. Marsh, 330; 1 Bibb. R. 590. 
     2. But the lien of the seller exists only between the parties and those 
having notice that the purchase-money has nut been paid. 3 J. J. Marsh. 557; 
3 Gill & John. 425 6 Monr. R. 198. 

PURE DEBT. In Scotland, this name is given to a debt actually due, in 
contradistinction to one which is to become due at a future day certain, 
which is called a future debt: and one due provisionally, in a certain 
event, which is called a contingent debt. 1 Bell's Com. 315, 5th ed. 

PURE OR SIMPLE OBLIGATION. One which is not suspended by any condition, 
whether it has been contracted without any condition, or when thus 
contracted, the condition has been performed. Poth. Obl. n. 176. 

PURE PLEA, equity pleading. One which relies wholly on some matter dehors 
the bill as for example, a plea of a release or a settled account. 
     2. Pleas not pure, are so called in contradistinction to pure pleas; 
they are sometimes also denominated negative pleas. 4 Bouv. Inst. n. 4275. 

PURGATION. The clearing one's self of an offence charged, by denying the 
guilt on oath or affirmation. 
     2. There were two sorts of purgation, the vulgar, and the canonical. 
     3. Vulgar purgation consisted in superstitious trials by hot and cold 
water, by fire, by hot irons, by batell, by corsned, &c., which modes of 
trial were adopted in times of ignorance and barbarity, and were impiously 
called judgments of God. 
     4. Canonical purgation was the act of justifying one's self, when 
accused of some offence in the presence of a number of persons, worthy of 
credit, generally twelve, who would swear they believed the accused. See 
Compurgator; Wager of Law. 
     5. In modern times, a man may purge himself of an offence, in some 
cases where the facts are within his own knowledge; for example, when a man 
is charged with a contempt of court, he may purge himself of such contempt, 
by swearing that in doing the act charged, he did not intend to commit a 
contempt. 

PURLIEU, Eng. law. A space of land near a forest, known by certain 
boundaries, which was formerly part of a forest, but which has been 
separated from it. 
     2. The history of purlieus is this. Henry III., on taking possession of 
the throne, manifested so great a taste for forests that he enlarged the old 
ones wherever he could, and by this means enclosed many estates, which had 
no outlet to the public roads, and things increased in this way until the 
reign of King John, when the public reclamations were so great that much of 
this land was disforested; that is, no longer had the privileges of the 
forests, and the land thus separated bore the name of purlieu. 

PURPARTY. That part of an estate, which having been held in common by 
parceners, is by partition allotted to any of them. To make purparty is to 
divide and sever the lands which fall to parceners. Old Nat. Br. 11. 

PURPORT, pleading. This word means the substance of a writing, as it appears 
on the face of it, to the eye that reads it; it differs from tenor. (q.v.), 
2 Russ. on Cr. 365; 1 Chit. Cr. Law, 235; 1 East, R. 179, and the cases in 
the notes. 

PURPRESTURE. According to Lord Coke, purpresture, is a close or enclosure, 
that is, when one encroaches or makes several to himself that which ought to 
be in common to many; as if an individual were to build between high and low 
water-mark on the side of a public river. In England this is a nuisance; and 
in cases of this kind an injunction will be granted, on ex parte affidavits, 
to restrain such a purpresture and nuisance. 2 Bouv. Inst. n, 2382; 4 Id. n. 
3798; 2 Inst. 28; and see Skene, verbo Pourpresture; 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. Rosc. Ins. note. 
     2. The act of congress concerning the naval establishment, passed March 
30, 1812, provides, Sec. 6, That the pursers in the Navy of the United 
States shall be appointed by the president of the 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, Sec. 1, That every 
purser now in service, or who may hereafter be appointed, shall, instead of 
the bond required by the act to which this is a supplement, enter into bond, 
with two or more sufficient sureties, in the penalty of twenty-five thousand 
dollars, conditioned for the faithful discharge of all his duties as purser 
in the navy of the United States, which said sureties shall be approved by 
the judge or attorney of the United States for the district in which such 
purser shall reside. 

PURSUER, canon law. The name by which the complainant or plaintiff is known 
in the ecclesiastical courts. 3 Eng. Eccl. R. 350. 

PURVEYOR. One employed in procuring provisions. Vide Code, 1, 34. 

PURVIEW. That part of an act of the legislature which begins with the words 
"Be it enacted," &c., and 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, Sec. 19. 

PUTATIVE. Reputed to be that which is not. The word is frequently used, as 
putative father, (q.v.) putative marriage, putative wife, and the like. And 
Toullier, tome 7, n. 29, uses the words putative owner, proprietare putatif. 
Lord Kames uses the same expression. Princ. of Eq. 391. 

PUTATIVE FATHER. The reputed father. 
     2. This term is most usually applied to the father of a bastard child. 
     3. The putative father is bound to support his children, and is 
entitled to the guardianship and care of them in preference to all persons 
but the mother. 1 Ashm. It. 55; and vide 7 East, 11; 5 Esp. R. 131; 1 B. & 
A. 491; Bott, P. L. 499; 1 C. & P. 268; 1 B. & B. 1; 3 Moore, R. 211; Harr. 
Dig. Bastards, VII.; 3 C. & P. 36. 

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 
marriage 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. 
