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Bouvier's Law Dictionary
1856 Edition

P

PACE. A measure of length containing two feet and a half; the=20 geometrical pace is five feet long. The common pace is the length of a = step; the=20 geometrical is the length of two steps, or the whole space passed over = by the=20 same foot from one step to another.

PACIFICATION. The act of making peace between two countries = which have=20 teen at war; the restoration of public tranquillity.

TO PACK. To deceive by false appearance; to counterfeit; to = delude; as=20 packing a jury. (q. v.) Bac. Ab. Juries, M; 12 Conn. R. 262. PACT, civil = law. An=20 agreement made by two or more persons on the same subject in order to = form some=20 engagement, or to dissolve or modify, one already made, conventio est = duorum in=20 idem placitum consensus de re solvenda, id. est facienda vel praestanda. = Dig. 2,=20 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=20 performed by a single act, and their execution is at an end at once, = they are=20 not called treaties, but agreements, conventions or pactions. 1 Bouv. = Inst. n.=20 100.

PACTUM CONSTITUTAE PECUNIAE, civil law. An agreement by which = a person=20 appointed to his creditor, a certain day, or a certain time, at which he = pro-mised to pay; or it maybe defined, simply. an agreement by which a = person=20 promises a creditor to pay him.

2. When a person by this pact promises his own creditor to pay him, = there=20 arises a new obligation which does not destroy the former by which he = was=20 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.=20 9.

3. There is a striking conformity between the pactum constitutae = pecuniae, as=20 above defined, and our indebitatus assumpsit. The pactum constitutae = pecuniae=20 was a promise to pay a subsisting debt whether natural or civil; made in = such a=20 manner as not to extinguish the preceding debt, and introduced by the = praetor to=20 obviate some formal difficulties. The action of indebitalus assumpsit = was=20 brought upon a promise for the payment of a debt, it was not subject to = the=20 wager of law and other technical difficulties of the regular action of = debt; but=20 by such promise, the right to the action of debt was not extinguished = nor=20 varied. 4 Rep. 91 to 95; see 1 H. Bl. 550 to 655; Doug. 6, 7; 3 Wood. = 168, 169,=20 n. c; 1 Vin. Abr. 270; Bro. Abr. Action sur le case, pl. 7, 69, 72; = Fitzh. N. B.=20 94, A, n. a, 145 G; 1 New Rep. 295; Bl. Rep. 850; 1 Chit. Pl. 89; Toull. = Dr.=20 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=20 debt due. By this agreement the debtor is freed from his obligation. = This is not=20 unlike the covenant not to sue, (q. v.) of the common law. Wolff, Dr. de = la Nat.=20 =A7755.

PACTUM DE QUOTA LITIS. An agreement by which a creditor of a = sum=20 difficult to recover, promises a portion, for example, one-third, to the = person=20 who will undertake to recover it. In general, attorneys will abstain = from,=20 making such a contract, yet it is not unlawful.

PAGODA, comm. law. A denomination of money in Bengal. In the=20 computation of ad valorem duties, it is valued at one dollar and = ninety-four=20 cent's. Act of March 2, 1799, s. 61, 1 Story's L. U. S. 626. Vide = Foreign Coins.=20

PAIS, or PAYS. A French word signifying country. In law, = matter in=20 pais is matter of fact in opposition to matter of record: a trial per = pais, is a=20 trial by the country, that is, by a jury.

PALFRIDUS, A palfrey; a horse to travel on. 1 Tho. Co. Litt. = 471; F.=20 N. B. 93.

PANDECTS, civil law. The name of an abridgment or compilation = of the=20 civil law, made by order of the emperor Justinian, and to which he gave = the=20 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,=20 summoned by virtue of a writ of venire facias, and annexed to the writ. = It is=20 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=20 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=20 shall each be furnished with such a paper-book in the court of king's = bench, in=20 England, the transcript containing the whole of the proceedings, filed = or=20 delivered between the parties, when the issue joined, in an issue in = fact, is=20 called the paper-book. Steph. on Pl. 95; 3 Bl. Com. 317; 3 Chit. Pr. = 521; 2 Str.=20 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=20 place. Tuesdays and Fridays in term time are paper days appointed by the = court.=20 Lee's Dict. of Pr. h. t.; Arch. Pr. 101.

PAPER MONEY. By paper money is understood the engagements to = pay money=20 which are issued by governments and banks, and which pass as money. = Pardes. Dr.=20 Com. n. 9. Bank notes are generally considered as cash, and win answer, = all the=20 purposes of currency; but paper money is not a legal tender if objected = to. See=20 Bank note, Specie, Tender.

PAR, comm. law. Equal. It is used to denote a state of = equality or=20 equal value. Bills of exchange, stocks, and the like, are at par when = they sell=20 for their nominal value; above par, or below par, when they sell for = more or=20 less.

PARAGE. Equality of name or blood, but more especially of land = in the=20 partition of an inheritance among co-heirs, hence comes disparage and=20 disparagement. Co. Litt. 166.

PARAGIUM. A Latin term which signifies equality. It is derived = from=20 the adjective par, equal, and made a substantive by the addition of = agium; 1=20 Tho. Co. Litt. 681.

2. In the ecclesiastical law, by paragium is understood the portion = which a=20 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,=20 or hereditaments. F. N. B. 135. Where A lets lands to B, and he = underlets them=20 to C, in this case A is the paramount, and B is the mesne landlord. Vide = Mesne,=20 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=20 right to retain as her own property, after her hushand's death; they = consist=20 generally of her clothing, jewels, and ornaments suitable to her = condition,=20 which she used personally during his life.

2. These, when not extravagant, she has a right to retain even = against=20 creditors; and, although in his lifetime the hushand might have given = them away,=20 he cannot bequeath such ornaments and jewels by his will. 2 Bl. Com. = 430; 2=20 Supp. to Ves. jr. 376; 5 Com. Dig. 230; 2 Com. Dig. 212; 11 Vin. Ab. = 176; 4=20 Bouv. Inst. n. 8996-7.

PARATITLA, civil law. An abbreviated explanation of some = titles or=20 books of the Code or Digest.

PARATUM HABEO. A return made by the sheriff to a capias ad=20 respondendum, which signified that he had the defendant ready to bring = into=20 court. This was a fiction where the defendant was at large. Afterwards = be was=20 required by statute to take bail from the defendant, and he returned = cepi corpus=20 and bail bond. But still he might be ruled to bring in the body. 7 Penn. = St.=20 Rep. 535.

PARAVAIL. Tenant paravail is the lowest tenant of the fee, or = he who=20 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.=20 B. 135; 2 Inst, 296.

PARCEL, estates. Apart of the estate. 1 Com. Dig. Abatement, H = 511 p.=20 133; 5 Com. Dig. Grant, E 10, p. 545. To parcel is to divide an estate. = Bac, Ab.=20 Conditions, 0.

PARCENARY. The state or condition of holding title to lands = jointly by=20 parceners, before the common inheritance has been divided. Litt. sec. = 56. Vide 2=20 Bl. Com. 187; Coparcenary; Estate In coparcenary.

PARCENERS, Engl. law. The daughters of a man or woman seised = of lands=20 and tenements in fee simple or fee tail, on whom, after the death of = such=20 ancestor, such lands and tenements descend, and they enter. Litt. s. = 243; Co.=20 Litt. 164 2 Bouv. Inst. n. 1871-2. Vide Coparceners.

PARCO FRACITO, Engl. law. The name of a writ against one who = violently=20 breaks a pound, and takes from thence beasts which, for some trespass = done, or=20 some other just cause, were lawfully impounded.

PARDON, crim. law, pleading. A pardon is an act of grace, = proceeding=20 from the power entrusted with the execution of the laws, which exempts = the=20 individual on whom it is bestowed, from the punishment the law inflicts = for a=20 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=20 pardon be equitable, the law is, bad; for where legislation and the=20 administration of the law are perfect, pardons must be a violation of = the law,=20 But as human actions are necessarily imperfect, the pardoning power must = be=20 vested somewhere in order to prevent injustice, when it is ascertained = that an=20 error has been committed.

3. The subject will be considered with regard, 1. To the kinds of = pardons. 2.=20 By whom they are to be granted. 3. For what offences. 4. How to be taken = advantage of 5. Their effect.

4. - =A71, Pardons are general or special. 1. The former are express, = when an=20 act ofthe legislature is passed expressly directing that offences of a = certain=20 class; shall be pardoned, as in the case of an act of amnesty. See = Amnesty. A=20 general pardon is implied by the repeal of a penal statute, because, = unless=20 otherwise provided by law, an offence against such statute while it was = in force=20 cannot be punished, and the offender goes free. 2 Overt. 423. 2. Special = pardons=20 are those which are granted by the pardoning power for particular cases. =

5. Pardons are also divided into absolute and conditional. The former = are=20 those which free the criminal without any condition whatever; the. = fatter are=20 those to which a condition is annexed, which must be performed before = the pardon=20 can have any effect. Bac. Ab. Pardon, E; 2 Caines, R. 57; 1 Bailey, 283; = 2=20 Bailey 516. But see 4 Call, R. 85.

6. - =A72. The constitution of the United States gives to the, = president in=20 general terms, "the power to grant reprieves and pardons for offences = against=20 the United States." The same power is given generally to the governors = of the=20 several states to grant pardons for crimes committed against their = respective=20 states, but in some of them the consent of the legislature or one of its = branches is required.

7. - =A73. Except in the case of impeachment, for which a pardon = cannot be=20 granted, the pardoning power may grant a pardon of all offences against = the=20 government, and for any sentence or judgment. But such a pardon does not = operate=20 to discharge the interest which third persons may have acquired in the = judgment;=20 as, where a penalty was incurred in violation of the embargo laws, and = the=20 custom house officers became entitled to one-half of the penalty, the = pardon did=20 not discharge that. 4 Wash. C. C R. 64. See 2 Bay, 565; 2 Whart. 440; 7 = J. J.=20 Marsh. 131.

8. - =A74. When the pardon is general, either by an act of amnesty, = or by the=20 repeal of a penal law, it is not necessary to plead it, because the = court is=20 bound, ex officio, to take notice of it. And the criminal cannot even = waive such=20 pardon, because by his admittance, no one can give the court power to = punish=20 him, when it judicially appears there is no law to do it. But when the = pardon is=20 special, to avail the criminal it must judicially appear that it has = been=20 accepted, and for this reason it must be specially pleaded. 7 Pet. R. = 150, 162.=20

9. - =A75. The effect of a pardon is to protect from punishment the = criminal=20 for the offence pardoned, but for no other. 1 Porter, 475. It seems that = the=20 pardon of an assault and battery, which afterwards becomes murder by the = death=20 of the person beaten, would not operate as a pardon of the murder. 12 = Pick. 496.=20 In general, the effect of a full pardon is to restore the convict to all = his=20 rights. But to this there are some exceptions: 1st. When the criminal = has been=20 guilty of perjury, a pardon will not qualify him to be a witnessat any = time=20 afterwards. 2d. When one was convicted of an offence by which he became = civilly=20 dead, a pardon did not affect or annul the second marriage of his wife, = nor the=20 sale of his property by persons appointed to administer on his estate, = nor=20 divest his heirs of the interest acquired in his estate in consequence = of his=20 civil death. 10 Johns. R. 232, 483.

10. - =A76. All contracts, made for the buying or procuring a pardon = for a=20 convict, are void. And such contracts will be declared null by a court = of=20 equity, on the ground that they are opposed to public policy. 4 Bouv. = Inst. n.=20 3857. Vide, generally, Bac. Ab. h. t.; Com. Dig. h. t.; Nels. Ab. h. t.; = Vin.=20 Ab. h. t.; 13 Petersd. Ab. h. t.; Dane's Ab. h. t.; 3 lust. 233 to 240; = Hawk. b.=20 2, c. 37; 1 Chit. Cr. L. 762 to 778; 2 Russ. on Cr. 595 Arch. Cr. Pl. = 92; Stark.=20 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.=20 R. 336; 11 S. & R. 93.

2. The term parent differs from that of ancestor, the latter = embracing not=20 only the father and mother, but every per ascending line. It differs = also from=20 predecessor, which is applied to corporators. Wood's Inst. 68; 7 Ves. = 522; 1=20 Murph. 336; 6 Binn. 255. See Father; Mother.

3. By the civil law grandfathers and grandmothers, and other = ascendants,=20 were, in certain cases, considered parents. Dict. de Jurisp. Parente. = Vide 1=20 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=20 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.=20 A person who is in pari delicto with another, differs from a particeps = criminis=20 in this, that the former always includes the latter but the latter does = not=20 always include the former. 8 East, 381, 2.

PARI MATERIA. Of the same matter; on the same subject; as, = laws pari=20 materia must be construed with reference to each other. Bac. Ab. Stat. = I. 3.=20

PARI PASSU. By the same gradation.

PARISH. A district of country of different extents. In the=20 ecclesiastical law it signified the territory committed to the charge of = a=20 parson, vicar, or other minister. Ayl. Parerg. 404; 2 Bl. Com. 112. = I>=20

Transfer interrupted!

into parishes.=20

PARIUM JUDICIUM. The trial by jury , or by a man's peers, or = equals,=20 is so called.

PARK, Eng. law. An enclosed chase (q.v.) extending only over a = man's=20 own grounds. The term park signifies an enclosure. 2 Bl. Com. 38.

PARLIAMENT. This word, derived from the French parlement, in = the=20 English law, is used to designate the legislative branch of the = government of=20 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=20 parliament. The connexion between the king and the Iords spiritual, the = lords=20 temporal, and the commons, which, when assembled in parliament, form = the, three=20 states of the realm, is the same as that which subsists between the king = and=20 those states - the people at large - out of parliament; Colton's = Records, 710;=20 the king not being, in either case, a member, branch, or coestate, but = standing=20 solely in the relation of sovereign or head. Rot. Par. vol. iii,. 623 = a.; 2=20 Mann. & Gr. 457 n.

PAROL. More properly parole. A French word, which means = literally,=20 word or speech. It is used to distinguish contracts which are made = verbally or=20 in writing not under seal, which are called, parol. contracts, from = those which=20 are under seal which bear the name of deeds or specialties (q. v.) 1 = Chit.=20 Contr. 1; 7 Term. R. 3 0 351, n.; 3 Johns. Cas. 60; 1 Chit. Pl. 88. It = is proper=20 to remark that when a contract is made under seal, and afterwards it is = modified=20 verbally, it becomes wholly a parol contract. 2 Watts, 451; 9 Pick. 298; = 13=20 Wend. 71.

2. Pleadings are frequently denominated the parol. In some instances = the term=20 parol is used to denote the entire pleadings in a cause as when in an = action=20 brought against an infant heir, on an obligation of his ancestors, he = prays that=20 the parol may demur, i. e., the pleadings may be stayed, till he shall = attain=20 full age. 3 Bl. Com. 300; 4 East, 485 1 Hoffm. R. 178. See a form of a = plea in=20 abatement, praying that the parol may demur, in 1 Wentw. Pl. 43; and 2 = Chit. Pl.=20 520. 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=20 cases when such evidence will be received or rejected, vide Stark, Ev. = pt. 4, p.=20 995 to 1055; 1 Phil. Ev. 466, c. 10, s. 1; Sugd. Vend. 97.

PAROL LEASES. An agreement made verbally, not in writing, = between the=20 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=20 is declared, that "all leases, estates, or terms of years, or any = uncertain=20 interest in lands, created by livery only, or by parol, And not put in = writing,=20 and signed by the party, should have the force and effect of leases or = estates=20 at will only, except leases not exceeding the term of three years, = whereupon the=20 rent reserved during the term shall amount to two third parts of the = full=20 improved value of the thing demised." "And that no lease or estate, = either of=20 freehold or term of years, should be assigned, granted, or surrendered, = unless=20 in writing." The principles of this statute have been adopted with some=20 modifications, in nearly all the states of the Union. 4 Kent, Com. 95; 1 = Hill.=20 Ab. 130

PAROLE, international law. The agreement of persons who have = been=20 taken by an enemy that they will not again take up arms against those = who=20 captured them, either for a limited time, or during the continuance of = the war.=20 Vattel, liv. 3, c. 8, =A7151.

PARRICIDE, civil law. One who murders his father; it is = applied, by=20 extension, to one who murders his mother, his brother, his sister, or = his=20 children. The crime committed by such person is also called parricide. = Merl.=20 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=20 China. Penal Laws of China, B. 1, s. 2, =A74.

3. The criminal was punished by being scourged, and afterwards sewed = in a=20 sort of sack, with a dog, a cock, a viper, and an ape, and then thrown = into the=20 sea, or into a river; or if there were no water, he was thrown in this = manner to=20 wild beasts. Dig. 48, 9, 9; C. 9, 17, 1, 1. 4, 18, 6; Bro. Civ; . Law, = 423;=20 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=20 or mother, whether they, be the legitimate, natural or adopted parents = of the=20 individual, or the murder of any other legitimate ascendant. Code Penal, = art.=20 297. This crime is there punished by the criminal's being taken to the = place of=20 execution without any other garment than his shirt, barefooted, and with = his=20 head covered with a black veil. He is then exposed on the scaffold while = an=20 officer of the court reads his sentence to the spectators; his right = hand is=20 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=20 its punishment, and the punishment of murder. 1 Hale's P. C. 380; Prin. = Penal=20 Law, c. 18, =A78, p. 243; Dalloz, Dict. mot Homicide.

PARSON, eccles. law. One who has full possession of all the = rights of=20 a parochial church.

2. He is so called because by his person the church, which is an = invisible=20 body, is represented: in England he is himself a body corporate it order = to=20 protect and defend the church (which he personates) by a the minority, = if=20 required to bring Story on Partn. =A7489. 1 Bouv. Inst. n. 1217. 398; 5 = Com. Dig.=20 346.

PARTICEPS FRAUDIS. fraud. Both parties be in pari delicto is = not=20 allowed to allege his own turpitude in such cases, when defendant at = law, or=20 prevented from alleging it, when plaintiff in equity, whenever the = refusal to=20 execute the contract at law, or the refusal to relieve against it in = equity,=20 would give effect to the original purpose, and encourage the parties = engaged, in=20 such transactions. 4 Rand. R. 372; 1 Black. R. 363; 2 Freem. 101.

PARTICULAR AVERAGE. This term, partipular average, has been = condemned=20 as not being exact. See Average. It denotes, in general, every kind of = expense=20 or damage, short of total loss which regards a particular concern, and = which is=20 to be borne by the proprietor of that concern alone. Between the insurer = and=20 insured, the term includes losses of this description, as far as the = underwriter=20 is liable. Particular average must not be understood as a total loss of = a part;=20 for these two kinds of losses are perfectly distinct from each other. A = total=20 loss of a part may be recovered, where a particular average would not be = recoverable. See Stev. on Av. 77.

PARTICULAR AVFRMENT, pleading. Vide Avermzent.

PARTICULAR CUSTOM. A particular custom is one which only = affects the=20 inhabitants of some particular district. To be good, a particular custom = must=20 possess these requisites: 1. It must have been used so long that the = memory of=20 man runneth not to the contrary. 2. It must have been continued. 3. It = must have=20 been peaceable. 4. It must be reasonable. 5. It must be certain. 6. It = must be=20 consistent with itself. 7. lt must be consistent with other customs. 1 = Bl. Com.=20 74, 79.

PARTICULAR ESTATE. An estate which is carved out of a larger = and which=20 precedes a remainder; as, an estate for years to A, remainder to B for = life; or,=20 an estate, for life to A, remainder to' B in tail: this precedent estate = is=20 called the particular estate. 2 Bl. Com. 165; 4 Kent, Com. 226; 16 Vin. = Abr.=20 216; 4 Com. Dig. 32; 5 Com. Dig. 346.

PARTTICULAR, LIEN, contracts. A right which a person has to = retain=20 property in respect of money or labor expended on such particular = property. For=20 example, when a tailor has made garments out of cloth delivered to him = for the=20 purpose, he is not bound to part with the clothes until his employer, = has paid=20 him for his services; nor a ship carpenter with a ship which he has = repaired;=20 nor can an engraver be compelled to deliver the seal which he has = engraved for=20 another, until his compensation has been paid. 2 Roll. Ab. 92; 3 M. = & S.=20 167; 14 Pick. 332; 3 Bouv. Inst. n. 2514. Vide Lien.

PARTICULARS, practice. The items of which the accounts of one = of the=20 parties is composed, and which are frequently furnished to the opposite = party in=20 a bill of particulars. (q. v.)

PARTIES, contracts. Those persons who engage themselves to do, = or not=20 to do the matters and things contained in an agreement.

2. All persons generally can be parties to contracts, unless they = labor under=20 some disability.

3. Consent being essential to all valid contracts, it follows that = persons=20 who want, first, understanding; or secondly, freedom to exercise their = will,=20 cannot be parties to contracts. Thirdly, persons who in consequence of = their=20 situation are incapable to enter into some particular contract. These = will be=20 separately considered.

4. - =A71. Those persons who want understanding, are idiots and = lunatics;=20 drunkards and infants,

5. - 1. The contracts of idiots and lunatics, are riot binding; as = they are=20 unable from mental infirmity, to form any accurate judgment of their = actions;=20 and consequently, cannot give a serious and sufficient consideration to = any=20 engagement. And although it was formerly a rule that the party could not = stultify himself; 39 H. VI. 42; Newl. on Contr. 19 1 Fonb. Eq. 46, 7; = yet this=20 rule has been so relaxed, that the defendant may now set up this = defence. 3=20 Camp. 128; 2 Atk. 412; 1 Fonb. Eq. n. d.; and see Highm. on Lun. 111, = 112; Long=20 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;=20 Bull. N. P. 172; 3 Campb. 33; Sugd. Vend. 154 Stark. Rep. 126; and his = contracts=20 are therefore void, particularly if he has been made intoxicated by the = other=20 party. 1 Hen. & Munf. 69; 1 South. Rep. 361; 2 Hayw. 394; see Louis. = Code,=20 art. 1781; 1 Clarke's R. 408.

7. - 3. In general the contract of an infant, however fair and = conducive=20 tohis interest it may be, is not binding on him, unless the supply of=20 necessaries to him be the object of the agreement; Newl. Contr. 2; 1 Eq. = Cas.=20 Ab. 286; l Atk. 489; 3 Atk. 613; or unless he confirm the agreement = after he=20 shall be of full age. Bac. Abr. Infancy; I 3. But he may take advantage = of=20 contracts made with him, although the consideration were merely the = infant's=20 promise, as in an action on mutual promises to marry. Bull. N. P. 155; 2 = Str.=20 907; 1 Marsh. (Ken.) Rep. 76; 2 M. & S. 205. See Stark. Ev. pt. iv. = page=20 724; 1 Nott & McCord, 197; 6 Cranch, 226; Com. Dig. Infant; Bac. = Abr.=20 Infancy and Age; 9 Vin. Ab. 393, 4; Fonbl. Eq. b. 1 c. 2; =A74, note b; = 3 Burr.=20 1794; 1 Mod. 25; Stra. 937; Louis. Code, article 1778.

8. - =A72. Persons who have understanding, who, in law, have not = freedom to=20 exercise their will, are married women; and persons under duress.

9. - 1. A married woman has, in general, no power or capacity to = contract=20 during the coverture. Com. Dig. Baron & Feme, W; Pleader, 2 A 1. She = has in=20 legal contemplation no separate existence, her hushand and herself being = in law=20 but one person. Litt. section 28; see Chitty on Cont. 39, 40. But a = contract=20 made with a married woman, and for her benefit, where she is the = meritorious=20 cause of action, as in the instance of an express promise to the wife, = in=20 consideration of her personal labor, as that she would cure a wound; = Cro. Jac.=20 77; 2 Sid. 128; 2 Wils. 424; or of a bond or promissory note, payable on = the=20 face thereof to her, or to herself and hushand, may be enforced by the = hushand=20 and wife, though made during the coverture. 2 M. & S. 396, n. b.; 2 = Bl. Rep.=20 1236; 1 H. Black. 108. A married woman has no original power or = Authority by=20 virtue of the marital tie, to bind her bushand by any of her contracts. = The=20 liability of a bushand on his wife's engagements rests on the idea that = they=20 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,=20 he is not liable. 1 Mod. 125; 3 B. & C. 631; see Chitty on Cont. 39 = to 50.=20

10. - 2. Contracts may be avoided on account of duress. See that = word, and=20 also Poth. Obl. P. 1, c. 1, s. 1, art. 3, =A72.

11. - =A73. Trustees, executors, administrators, guardians, and all = other,=20 persons who make a contract for and on behalf of others, cannot become, = parties=20 to such contract on their own. account; nor are they allowed in any case = to=20 purchase the trust estate for themselves. 1 Vern. 465; 2 Atk. 59; 10 = Ves. 3; 9=20 Ves. 234; 12 Ves. 372, 3 Mer. Rep. 200; 6 Ves. 627; 8 Bro. P. C. 42 10 = Ves. 381;=20 5 Ves. 707; 13 Ves. 156; 1 Pet. C. C. R. 373; 3 Binn. 54; 2 Whart. 53; 7 = Watts,=20 387; 13 S. & R, 210; 5 Watts, 304; 2 Bro. C. C. 400; White's L. C. = in Eq.=20 *104-117; 9 Paige, 238, 241, 650, 663; 1 Sandf. R. 251, 256; 3 Sandf. R. = 61; 2=20 John. Ch. R. 252; 4 How. S. C. 503; 2 Whart. 53, 63; l5 Pick. 24, 31. As = to the=20 transactions between attorneys and others in relation to client's = property, see=20 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=20 the license of the government, either express or implied. 1 Kent, Com. = 104. See=20 15 John. 6; Dougl. 641. As to the persons who make contracts in equity, = see=20 Newl. Cont. c. 1, pp. l to 33.

PARTIES TO ACTIONS. Those persons who institute actions for = the=20 recovery of their rights, and those persons against whom they are = instituted,=20 are the parties to the actions; the former are called plaintiffs, and = the=20 latter, defendants. The term parties is understood to include all = persons who=20 are directly interested in the subject-matter in issue, who have right = to make=20 defence, control the proceeding, or appeal from the judgment. Persons = not having=20 these rights are regarded as strangers to the cause. 20 How. St. Tr. = 538, n.;=20 Greenl. Ev. =A7523

2. It is of the utmost importance in bringing actions to have proper = parties,=20 for however just and meritorious the claim may be, if a mistake has been = made in=20 making wrong persons, either plaintiffs or defendants, or including too = many or=20 too few persons as parties, the plaintiff may in general be defeated. =

3. Actions are naturally divided into those which arise upon = contracts, and=20 those which do not, but accrue to the plaintiff in consequence of some = wrong or=20 injury committed by the defendant. This article will therefore be = divided into=20 two parts, under which will be briefly considered, first, the parties to = actions=20 arising upon contracts; and, secondly, the parties to actions arising = upon=20 injuries or wrongs, unconnected with contracts, committed b the = defendant.

4. - Part I. Of parties to actions arising on contracts. These are = the=20 plaintiffs and the defendants.

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

=A71. Between the original contracting parties. An action. on a = contract,=20 whether express or implied, or whether it be by parol, or under seal, or = of=20 record, must be brought in the name of the party in whom the legal = interest is=20 vested. 1 East, R. 497; and see Yelv. 25, n. l; 13 Mass. Rep. 105; 1 = Pet. C. C.=20 R. 109; 1 Lev. 235; 3 Bos. & Pull. 147; 1 Ii. Bl. 84; 5 Serg. & = Rawle,=20 27; Hamm. on Par. 32; 2 Bailey's R. 55; 16 S. & R. 237,; 10 Mass. = 287; 15=20 Mass. 286 10 Mass. 230; 2 Root, R. 119.

6.- =A72. Of the number of plaintiffs who must join. When a contract = is made=20 with several, if their legal interests were joint, they must all, if = living,=20 join in the action for the breach of the contract. 1 Saund. 153, note 1; = 8 Serg.=20 & Rawle, 308; 10 Serg. & Rawle, 257; 10 East, 418; 8 T. R. 140; = Arch.=20 Civ. Pl. 58; Yelv. 177, note 1. But dormant partners need not join their = copartners. 8 S. & R. 85; 7 Verm. 123; 2 Verm. 65; 6 Pick. 352; 4 = Wend. 628;=20 8 Wend. 666; 3 Cowen, 84; 2 Harr. & Gill, 159. When a contract is = made and a=20 bond is given to a firm by a particular name, as A B and Son, the suit = must be=20 brought by the actual partners, the two sons of A B, t-he latter having = been=20 dead several years at the time of making the contract. 2 Campb. 548. = When a=20 person who has no interest in the contract is joined with those who = have, it is=20 fatal. 19 John. 213 2 Penn. 817; 2 Greenl. 117.

7. - =A73. When the interest of the contract has been assigned. Some = contracts=20 are assignable at law; when these are assigned, the assignee may = maintain an=20 action in his own name. Of this kind are promissory notes, bills of = exchange,=20 bail-bonds, replevin-bonds; Hamm. on Part. 108; and covenants running = with the=20 land pass with the tenure, though not made with assigns. 5 Co. 24; Cro. = Eliz.,=20 552; 3 Mod. 338; 1 Sid. 157; Hamm, Part. 116; Bac. Abr.; Covenant, E 5. = When a=20 contract not is signable at law has been assigned, and a recoverly on = such=20 contract is sought, the action must be in the name of the assignor for = the use=20 of the assignee.

8. - =A74. When one or more of several obligees, &c., is dead. = When one or=20 more of several obligees, covenantees, partners or others, haviug a = joint=20 interest in the contract; not running with the land, dies, the action = must be=20 brought in the name of the survivor, and that fact averred in the = declaration. 1=20 Dall. 65, 248; 1 East, R. 497; 2 John. Cas. 374; 4 Dalt. 354; Arch. Civ. = Pl. 54,=20 5; Addis. on Contr. 285; 1 Chan. Rep. 31; Yelv. 177.

9. - =A75. In the case o executors and administrators. When a = personal=20 contract, or a covenant not running with the land, has been made with = one person=20 only, and he is dead, the action for the breach of it must be brought in = the=20 name of the executor or administrator in whom the legal interest in the = contract=20 is vested; 2 H. Bl. 310; 3 T. R. 393; and all the executors or = administrators=20 must join. 2 Saund. 213; Went.95; 1 Lev.161; 2 Nott & McCord, 70; = Hamm. on=20 Part. 272.

10. - =A76. In the case of bankruptcy or insolvency. In the case of = the=20 bankruptcy or insolvency of a person who is beneficially interested in = the=20 performance; of a contract made before the act of bankruptcy or before, = the=20 assignment under the insolvent laws, the action should be brought in the = name of=20 his assignees. 1 Chit. Pl. 14; 2 Dall. 276; 3 Yeates, 520; 7 S. & R. = 182; 5=20 S. & R. 394; 9 S, & R. 434. See 3 Salk. 61; 3 T. R. 779; Id. = 433; Hamm.=20 on Part. 167; Com. Dig. Abatement, E 17.

11. - =A77. In case of marriage. This part of the subject will be = considered=20 with reference to tbose cases. 1st. When the hushand and wife, must = join. 2d.=20 When the hushand must sue alone. 3d. When the wife must sue alone. 4th. = When=20 they may join or not at their election. 5th. Who is to sue in the case = of the=20 death of the hushand or wife. 6th. When a woman marries, lis pendens. =

12. - 1. To recover the chose in action of the wife, the hushand = must, in=20 general, join, when the cause of action would survive. 3 T. R. 348; 1 M. = &=20 S. 180; Com. Dig. Baron & Feme, V; Bac. Ab. Baron & Feme, K; 1 = Yeates'=20 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=20 during coverture, as for work and labor, money lent, or goods sold by = her during=20 that time, 2 Bl. Rep. 1239; and see 1 Salk. 114; 2 Wils. 424.; 9 East, = 412; 1=20 Str. 612; 1 M. & S. 180; 4 T. R. 516; 3 Lev. 103; Carth. 462; Ld. = Raym. 368;=20 Cro, Eliz. 61; Com. Dig. Baron & Feme, W.

14. - 3. When the hushand is civiliter mortuus, see 4 T. Rep. 361; 2 = Bos.=20 & Pull. 165; 4 Esp. R. 27; 1 Selw. N. P. 286; Cro. Eliz. 1519; 9 = East, R.=20 472; Bac. Ab. Baron & Feme, M.; or, as has been decided in England, = when he=20 is an alien and has left the country, or has never been in it, the wife = may, on=20 her own separate contracts, sue alone. 2 Esp. R. 544; 1 Bos. & Pull. = 357; 2=20 Bos. & Pull. 226; 1 N. R. 80; 11 East, R. 301; 3 Camp. R. 123; 5 T. = R. 679.=20 But the rights of such hushand being only suspended, the disability may = be=20 removed, in one case, by a pardon, and, in the other, by the hushand's = return,=20 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=20 gives a bond to the hushand and wife in consideration of such debt, they = may=20 join, or the hushand may sue alone on such contract. 1 M. & B. 180; = 4 IT. R.=20 616 1 Chit. Pl. 20.

16. - 5. Upon the death of the wife, if the hushand survive, he may = sue for,=20 anything he became entitled to during the coverture; as for rent accrued = to the=20 wife during the coverture. 1 Rolle's Ab. 352, pl. 5; Com. Dig. Baron = & Feme,=20 Z; Co. Litt. 351, a, n. 1. But the hushand cannot sue in his own right = for the=20 choses in action of the wife, belonging to her before coverture. Hamm. = on Part.=20 210 to 215.

17. When the wife survives the hushand, she may sue on all contracts = entered=20 into with her before coverture, which remain unsatisfied; and she may = recoverall=20 arrears of rent of her real estate, which became due during the = coverture, or=20 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,=20 and she afterwards marries, lis pendens, the suit abates. 1 Chit. Pl. = 437; 14=20 Mass. R. 295; Brayt. R. 21.

19. - =A78. When the plaintiff, is a foreign government, it must have = been=20 recognized by the government of this country to entitle it to bring an = action. 3=20 Wheat. R. 324; Story, Eq. Pl. =A755. See 4 Cranch, 272; 9 Ves. 347; 10 = Ves. 354;=20 11 Ves. 283; Harr. Dig. 2276.

20. - Sect. 2. Of the defendants. These will be considered in the = following=20 order: =A71. Between the original parties. The action upon an express = contract,=20 must in general be brought against the party who made it. 8 East, R. 12. = On=20 implied contracts against the person subject to the legal liability. = Ramm. Part.=20 48; 2 Hen. Bl. 563. Vide 6 Mass. R. 253; 8 Mass. Rep. 198; 11 Mass. R. = 335; 6=20 Binn. R. 234; 1 Chit. Pl. 24.

21. - =A72. Of the number of defendants. For the breach of a joint = contract=20 made by several parties, they should all be made defendants; 1 Saund: = 153, note=20 1; Id. 291 b, n. 4; even though one be a bankrupt or insolvent. 2 M. = & S.=20 23. Even an infant must be joined, unless the contract as to him be = entirely=20 void. 3 Taunt. 307; 5 John R. 160. Vide 5 John. R. 280; 11 John. R. 101; = 5 Mass.=20 R. 270; 1 Pick. 500. When a joint contractor is dead, the suit should be = brought=20 against the survivor, 1 Saund. 291, note 2. The misjoinder of defendants = in an=20 action ex contractu, by joining one who is not a contractor, is fatal. 3 = Conn.=20 194; Pet. C. C. 16; 2 J. J. Marsh. 88; 1 Breese, 128; 2 Rand. 446; 10 = Pick. 281.=20

22. - 3. In case of a change of credit, and of covenants running with = the=20 land, &c. In general in the case of a mere personal contract, the = action for=20 the breach of it, cannot be brought against the person to whom the = contracting=20 party has assigned his interest, and the original party can alone be = sued; for=20 example, if two partners dissolve their partnership, and one of them = covenant=20 with the other that he will pay all the debts, a creditor may = nevertheless sue=20 both. Upon a covenant running with land, which must concern real = property, or=20 the estate therein; 3 Wils. 29; 2 H. Bl. 133; 10 East, R. 130; the = assignee of=20 the lessee is liable to an' action for a breach of the covenant after = the=20 assignment of the estate to him, and while the estate remaim in him, = although he=20 have - not take possession. Bac. Ab. Covenant, E 34; 3 Is. 25; 2 Saund. = 304, n.=20 12; Woodf. L. & T. 113; 7 T. R. 312; Bull. N. P. 159; 3 Salk. 4; 1 = Dall. R.=20 210,; 1 Fonbl. Eq. 359, note y; Hamm. N. P. 136.

23. - =A74. When one of several obligers, &c. is dead. When the = parties=20 were bound by a joint contract, and one of them dies, his executor or=20 administrator is at law discharged from liability, and the survivor = alone can be=20 sued. Bac. Ab. Obligation, D 4; Vin. Ab. Obligation, P 20; Carth. 105; 2 = Burr.=20 1196. And when the deceased was a mere surety, his executors are not = liable even=20 in equity. Vide 1 Binn. R. 123.

24. - =A75. In the case of executors an administrators. When the = contracting=20 party is dead, his executor or administrator, or, in case of a joint = contract,=20 the executor or administrator of the survivor, is the party to be made=20 defen-dant. Ham. on Part. 156. On a joint contract, the executors of the = deceased contractor, the other surviving, are discharged at law, and no = action=20 can be supported against them; 6 Serg. & R. 262; 2 Whart. R. 344; 2 = Browne,=20 Rep. 31; and, if the deceased joint contractor was a mere surety, his=20 representatives are not liable either at, law or in equity. 2 Serg. = & R.=20 262; 2 Whart. 344; P. A. Browne's R. 31. All the executors must be sued = jointly;=20 when administration is taken on the debtor's estate, all his = administrators must=20 be joined, and if one be a married woman, her hushand must also be a = party. Cro.=20 Jac. 519.

25. - =A76. In the case of bankruptcy or insolvency. A discharged = bankrupt=20 cannot be sued. A discharge under the insolvent laws does not protect = the=20 property of the insolvent, and he may in general be sued on his = contracts,=20 though he is not liable to be arrested for a debt which was due and not=20 contingent at the date. of his discharge. Dougl. 93; 8 East, R. 311; 1 = Saund.=20 241, n. 5; Ingrah. on Insol. 377.

26. - =A77. In case of marriage. This head will be divided by = considering, 1.=20 When the bushand and wife must be joined. 2. When the hushand must be = sued,=20 alone. 3. When the wife must be sued alone. 4. When the hushand and wife = may be=20 joined or not at the election of the plaintiff. 5. Who is to be sued in = case of=20 the death of the hushand or wife. 6. Of actions commenced against the = wife dum=20 sola, which are pending at her marriage.

27. - 1. When a feme sole who has entered into a contract marries, = the=20 hushand and wife must in general be jointly sued. 7 T. R. 348; All. 72; = 1 Keb.=20 281; 2 T. R. 480; 3 Mod. 186; 1 Taunt. 217; 7 Taunt. 432; 1 Moore, 126; = aid, s6e=20 8 Johns. R. 2d ed. 115.; 15 Johns. R. 403, 483; 17 Johns. Rep, 16't;- 7 = Mass. R.=20 291 - Com. Dig. Pleader, 2 A 2-; 1 Bingh. R. 60. But if the hushand be = away, or=20 live separate from his wife, she may, on a contract of which she is the=20 meritorious cause, bring an action in the Paine of her hushand, on = indemnitying=20 the latter for costs. 4 B. & A. 419; 2 C. & M. 388 Addis. on = Contr. 342.=20 And, on such contract, she may sue as a feme sole when her hushand is = civiliter=20 inortu'us. Addis. on Contr. 342 1 Salk. 116; 1 Lord Raym. 147; 2 M. = & W. 65;=20 Moore, 851.

28. - 2. When the wife cannot be considered either in person, or = property as=20 creating the cause of action, as in the case of a mere personal contract = made=20 during the coverture, the hushand must be sued alone. Com. Dig. Pleader, = 2 A 2;=20 8 T. R. 545; 2 B. & P. 105; Palm. 312; 1 Taunt. 217; 4 Price, 48; 16 = Johns.=20 R. 281.

29. - 3. The wife can in general be sued alone, in the same cases = where she=20 can sue alone, the cases being reversed.

30. - 4. When the hushand, in consequence of some new consideration,=20 undertakes to pay a debt of the wife dum sola, he may be sued alone, or = the=20 hushand and wife. may be made joint defendants. All. 73; 7 T. R. 349; = vide other=20 cases in Com. Dig. Baron & Feme, Y; 1 Rolle's Ab. 348, pl. 45, 50; = Bac. Ab.=20 Baron & Feme, L.

31. - 5. Upon the death of the wife, her executor, when she has = appointed one=20 under a power, or her administrator, is alone responsible for a debt or = duty she=20 contracted dum sola. The hushand, as such, is not liable. Com. Dig. = Baron &=20 Feme, 2 C; 3 Mod. 186; Rep. Temp. Talb. 173; 3 P. Wms. 410. When the = wife=20 survives, she may be sued for her contracts made before coverture. 7 T. = R. 350;=20 1 Camp. R. 189.

32. - 6. When a single woman, being sued, marries Iis pendens, the = plaintiff=20 may proceed to judgment, as if she were a feme sole. 2 Rolle's R. 53; 2 = Str,=20 811.

33. Part 2. Of parties to actions in form ex delicto. These are = plaintiffs=20 and defendants.

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

35. - =A71. With reference to the interest. Of the plaintiff. The = action for a=20 tort must, in general, be brought in the name of the party whose legal = right has=20 been affected, 8 T. R. 330; vide 7 T. R. 47; 1 East, R. 244; 2 Saund. 47 = d;=20 Hamm. on Part. 35, 6; 6 Johns. R. 195;.10 Mass. R. 125 10 Serg. & = Rawle,=20 357.

36. - =A72. With reference to the number of plaintiffs. It is a = general rule=20 that when an injury is done to the property of two or more joint owners, = they=20 must join in the action; and even when the property is several, yet when = the=20 wrong has caused a joint damage, the parties must join in the action. 1 = Saund.=20 291, g. When suits are brought by tenants in common, against strangers = for the=20 recovery of the land, inasmuch as they have several titles, they cannot=20 agreeably to the rules of the common law, join, but must bring separate = actions;=20 and this seems to be the rule in Missouri. 1 Misso. R. 746. This rule = has been=20 changed in some of the states. In Connecticut, when the plaintiff claims = on the=20 title of all the tenants, he recovers for their benefit, and his = possession will=20 be theirs. 1 Swift's Dig. 103. In Massachusetts, Mass. Rev. St. 611, and = Rhode=20 Island, R. I. Laws, 208, all the tenants or any two may join or any one = may sue=20 alone. In Tennessee they usually join. 2 Yerg. R. 228.

37. When personal reputation is the object affected, two or more = cannot join=20 as plaintiffs in the action, although the mode of expression in which = the=20 slander was couched comprehended them all; as when a man addressing = himself to=20 three, said, you have murdered Peter. Dyer, 191, pl. 112; Cro. Car. 510; = Goulds.=20 pl. 6, p. 78. The reason of this is obvious, no one has any interest in = the=20 character of the others, the damages are, therefore, several to each. =

38. - =A73. In general, rights or causes of action arising ex delicto = are not=20 assignable.

39. - =A74. When one of several parties who had an interest is dead. = In such=20 case the action must be instituted by the survivor. 1 Show. 188; S. C. = Carth.=20 170.

40. - =A75. When the party injured is dead. The executors or = administrators=20 cannot in general recover damages for a tort, when the, action must be = ex=20 delicto, and the plea to it is not guilty. Vide the article Actio = personalis=20 moritur cum persona, where the subject is more fully examined.

41. - =A76. In case of insolvency. The statutes generally authorize = the trustee=20 or assignee of an insolvent to institute a suit in his own name for the = recovery=20 of the rights and property of the insolvent. 6 Binn. 189; 8 Serg. & = Rawle,=20 124. But for torts to the person of the insolvent, as for slander, the = trustee=20 or assignee cannot sue. W. Jones' Rep. 215.

42.- =A77. When the tort has been committed, against a woman dum sola = who=20 afterwards married. A distinction is made between those injuries = committed=20 before and those which take place during coverture. For injuries to the = person,=20 personal or real property of the wife, committed before coverture, when = the=20 cause of action would survive to the wife, she must join in the action. = 3 T. R.=20 627; Rolle's Ab. 347; Com. Dig. Baron & Feme, V. For an injury to = the person=20 of the wife during coverture, by battery, or to her character, by = slander, or=20 for any other such injury, the wife must be joined with her hushand in = the suit;=20 when the injury is such that the hushand receives a separate damage or = loss, as=20 if in consequence of the battery, he has been deprived of her society or = been=20 put to expense, he may bring a separate action, in his own name; and for = slander=20 of the wife, when words are not actionable of themselves, and the = hushand has=20 received some special damages, the hushand must sue alone. 1 Lev. 140; 1 = Salk.=20 119; 3 Mod. 120.

43. - Sect. 2. Of the defendants. =A71. Between the orginal parties. = All=20 natural persons are liable to be sued for their tortious acts, = unconnected with=20 or in disaffirmance of a contract; an infant is, therefore, equally = liable with=20 an adult for slander, assaults aud batteries, and the like; but the = plaintiff=20 cannot bring an action ex delicto which arose out of a contract, and by = that=20 means charge an infant for a breach of a contract. The form is of no=20 consequence; the only question is whether the action arose out of = contract or=20 otherwise. A plaintiff who hired a horse to an infant, and the infant by = hard,=20 improper and injudicious driving, killed the horse,, cannot maintain an = action=20 ex delicto to recover damages for a breach of this contract. 8 Rawle's = R. 351; 6=20 Watts' R. 9; 8 T. R. 385; Hamm. N. P. 267. But see contra, 6 Cranch,226; = 15=20 Mass. 359; 4 McCord, 387. Vide Infant.

44. - =A72. As to the number of defendants. There are torts which, = when=20 committed by several, may authorize a joint action against all the = parties; but=20 when in legal contemplation several cannot concur in the act complained = of,=20 separate actions must be brought against each; the cases of several = persons=20 joining in the publication of a libel, a malicious prosecution, or an = assault=20 and battery, are cases of the first kind verbal slander is of the = second. 6=20 John. R: 32. In general, When the parties have committed a tort which = might be=20 committed by several, they may be jointly sued, or the plaintiff may sue = one or=20 more of them and not sue the others, at his election. Bac Ab. Action Qui = Tam, D;=20 Roll. Ab. 707; 3 East, R. 62.

45. - =A73. When the interest has been assigned. A liability for a = tort cannot=20 well be assignee; but an estate may be assigned on which was erected a = nuisance,=20 and the assignee will be liable for continuing it, after having = possession of=20 the estate. Com. Dig. Case, Nuisauce, B; Bac. Ab. Actions, B; 2 Salk. = 460; 1 B.=20 & P. 409.

46.- 4. When the wrongdoer is dead. In this case the remedy for = wrongs ex=20 delicto, and unconnected with contract, cannot in general be maintained. = Vide=20 Actio personalis moritur cum persona.

47. - =A75. In case of insolvency. Insolvency does not discharge the = right of=20 action of the plaintiff in any case; it merely liberates the defendant = from=20 arrest when he has received the benefit of, and been discharged under, = the=20 insolvent laws; an insolvent may therefore be sued for his torts = committed=20 before his discharge.

48. - =A76. In case of marriage. Marriage does not affect or change = the=20 liabilities of the hushand and he is alone to be sued for his torts = committed=20 either before or during the coverture. But it is otherwise with the = wife; after=20 her marriage she has no personal property to pay the damages which may = be=20 recovered, and she cannot even appoint an attorney to defend her. For = her torts=20 committed by her before the marriage, the action must be against the = hushand and=20 wife jointly. Bac. Ab. Baron and Feme, L; 5 Binn. 43. They must also be = sued=20 jointly for the torts of the wife during the coverture, as for slander, = assault=20 and battery, &c. Bac. Ab. Baron and Feme, L. See, generally, as, to = parties=20 to actions,, 3 United States Dig. Pleading, I, and Promissory Note, = XVI.; Bouv.=20 Inst. Index, h. t.

PARTIES TO A SUIT IN EQUITY. The person who seeks a remedy in = chancery=20 by suit, commonly called a plaintiff, and the person against whom the = remedy is=20 sought, usually denominated the defendant, are the parties to a suit in = equity.=20

2. It is of the utmost importance, that there should be proper = parties; and=20 therefore no rules connected with the science of equity pleading, are so = necessary to be attentively considered and observed, as those which = relate to=20 the persons who are to be made parties. to a suit, for when a mistake in = this=20 respect is discovered at the hearing of the cause, it may sometimes be = attended=20 with defeat, and will, at least, be followed by delay and expense. 3 = John. Ch.=20 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=20 plain-tiffs. 2. who may be made defendants. 3. The number of the = parties.

4. - =A71. Of the plaintiff. Under this head will be considered who = may sue in=20 equity: and,

5. - 1. The government, or as the style is in England, the crown) may = sue in=20 a court of equity, not only in suits strictly on behalf of the = government, for=20 its own peculiar rights and interest, but also on behalf of the rights = and=20 interest of those, who partake of its prerogatives, or claim its = peculiar=20 protection. Mitf. Eq. Plead. by Jeremy, 4, 21-24; Coop. Eq. 21, 101. = Such suits=20 are usually brought by the attorney general.

6.- 2. As a general rule all persons, whether natural or artificial, = as=20 corporations, may sue in equity; the exceptions are persons who are not = sui=20 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=20 partial, disable the party to sue by himself alone, without the aid of = another.=20 In the United States, the principal ab solute incapacity, is alienage. = The=20 alien, to be disabled to sue in equity, must be an alien enemy, for an = alien=20 friend may sue in chancery. Mitf. Equity, PI, 129; Coop. Equity Pl. 27. = But=20 still the subject matter of the suit may. disable an alien to sue. Coop. = Eq. Pl.=20 25; Co. Lit. 129 b. An alien sovereign or an alien corporation may = maintain a=20 suit in equity in this country. 2 Bligh's Rep. 1, N. S.; 1 Dow. Rep.. = 179, N.=20 S.; 1 Sim. R. 94; 2 Gall. R. 105; 8 Wheat. Rep. 464; 4 John. Ch. Rep. = 370. In=20 case if a foreign sovereign, he must have been recognized by the = government of=20 this country before he can sue. Story's Eq. pl. =A755; 3 Wheat. Rep. = 324; Cop. Eq.=20 Pl. 119

9. Partial incapacity to sue exists in the case of infants, of = married women,=20 of idiots and lunatics, or other persons who are incapable, or are by = law=20 specially disabled to sue in their own names; as for example, in = Pennsylvania,=20 and some other states, habitual drunkards, who are under guardianship. = 10.-1. An=20 infant cannot, by himself, exhibit a bill, not only on account of his = want of=20 discretion, but because of his inability to bind himself for costs. = Mitf. Eq.=20 Pl. 25. And when an infant sues, he must sue by his next friend. Coop, = Eq. 27; 1=20 Sm. Chan. Pl. 54. But as the next friend may sometimes bring a bill. = from=20 improper motives, the court will, upon a proper application, direct the = master=20 to make inquiry on this subject, and if there be reason to believe it be = not=20 brought for the benefit of the infant, the proceedings will be stayed. 3 = P. Wms.=20 140; Mitf. Eq. Pl. 27; Coop. Eq. Pl. 28.

11. - 2. A feme covert must, generally, join with her hushand; but = when he=20 has abjured the realm, been transported for felony, or when he is = civilly dead,=20 she may sue as a feme sole. And when she has a separate claim, she may = even sue=20 her hushand, with the assistance of a next friend of her own selection. = Story's=20 Eq. Pl. =A761; Story's Eq. Jur. =A71368; Fonbl. Eq. b. 1, c. 2, =A76, = note p. And the=20 hushand may himself sue the wife.

12. - 3. Idiots and lunatics are generally under the guardianship of = persons=20 who are authorized to bring a suit in the idiot's name, by their = guardian or=20 committee.

13. - =A72. Of the defendant. 1. In general, those persons who may = sue in=20 equity, may be sued. Persons sui juris may defend themselves, but those = under an=20 absolute or partial inability, can make defence only in a particular = manner. A=20 bill may be exhibited against all bodies politic or corporate, against = all=20 persons not laboring under any diability, and all persons subject to = such=20 incapacity, as infants, married women, and lunatics, or habitual = drankards.

14. - 2. The government or the state, like the king in England, = cannot be=20 sued. Story, Eq. Pl. =A769.

15. - 3. Bodies politic or corporate, like persons sui juris, defend = a suit=20 by themselves.

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

17. - 5. Idiots and lunatics defend by their committees, who, in = ordinary=20 circumstances, are appointed guardians ad litem, for that purpose, as a = matter=20 of course. Mitf. Eq. Pl. 103; Coop. Eq. Pl. 30, 32; Story's Eq. Pl. = SS70; Shelf=20 on Lun. 425.; and vide 2 John. Ch. R. 242, where, Chancellor Kent held, = that the=20 idiot need not be made a party as defendant to a bill for the payment of = his=20 debts, but his committee only. When the idiot or lunatic has no = committee, or=20 the latter has an interest adverse to that of the lunatic or idiot, a = guardian=20 ad litem will be appointed Mitf. Eq. Pl. 103;; Story's Eq. Pl. =A770. =

18. - 6. In general, a married woman, when she is sued, must be = joined with=20 her hushand, and their answer must also be joint. But there axe = exceptions to=20 this rule in both its requirements.

19. - 1. A married woman may be made a defendant, and answer as a = feme sole,=20 in some instances, as when her hushand is plaintiff in the suit, and = sues her as=20 defendant, and from the like necessity, when the hushand is an exile or = has=20 abjured the realm, or has been transported under a criminal sentence, or = is an=20 alien enemy. She may be sued and answer as a feme sole. Mitf. Eq. Pl. = 104, 105;=20 Coop. Eq. Pl. 30.

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

21. - 3. As to the number of parties. It is a general rule that every = person=20 who is at all interested in the subject-matter of the suit, must be made = a=20 party. It is, the constant aim of a court of equity, to do complete = justice by=20 deciding upon and settling the rights of all persons interested in the = subject=20 of the suit, to make the performance of the order of the court perfectly = safe to=20 those who are compelled to obey it, and, to prevent future litigation. = For this=20 purpose, all persons materially interested in the subject ought to be = parties to=20 the suit, plaintiffs or defendants, however numerous they may be, so = that a=20 complete decree may be made binding on those parties. Mitford's Eq. Pl. = 144; 1=20 John. Ch. R. 349; 9 John. R. 442; 2 Paige's C. R. 278; 2 Bibb, 184; 3 = Cowen's R.=20 637; 4 Cowen's R. 682 9 Cowen's R. 321; 2 Eq. Cas. Ab. 179; 3 Swans. R. = 139.=20 When a great number of individuals are interested as in the instance of=20 creditors seeking an account of the estate of their deceased debtor for = payment=20 of their demands, a few suing on behalf of the rest may substantiate the = suit,=20 and the other creditors may come in under the decree. 2 Ves. 312, 313. = In such=20 case the bill should expressly show that it is fifed as well on the = behalf of=20 other members as those who are really made the complainants; and the = parties=20 must not assume a corporate, name, for if they assume the style of a=20 corporation, the bill cannot be sustained. 6 Ves. jr. 773; Coop. Eq. Pl. = 40; 1=20 John. Ch. R. 349; 13 Ves. jr. 397 16 Ves. jr. 321; 2 Ves. sen. 312 S. = & S.=20 18; Id. 184. In some cases, however, when all the persons interested = are, not=20 made parties, yet, if there be such privily between the plaintiffs and=20 defendants, that a complete decree may be made, the want of parties is = not a=20 cause of demurrer. Mitf. El q. Pl. 145. Vide Calvert on Parties to Suits = in=20 Equity; Edwards on Parties to Bills in Chancery; Bouv Inst. Index, h. t. =

PARTITION, conveyancing. A deed of partition is, one by which = lands=20 held in joint tenancy, coparcenary, or in common, are divided into = distinct=20 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=20 a particular part, and the other, another part, in severalty; but it is = now the=20 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.=20 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=20 belong to them as co-heirs or co-proprietors. The term is more = technically=20 applied to the division of real estate made between coparceners, tenants = in=20 common or joint tenants.

2. The act of partition ascertanas and fixes what each of the = co-proprietors=20 is entitled to have in severalty

3. Partition is either voluntary, or involuntary, by compulsion. = Voluntary=20 partition is made by the owners of the estate, and by a conveyance or = release of=20 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=20 remedy. "It is presumed," says Chancellor Kent, 4 Com. 360, "that the = English=20 statutes of 31 and 32 Henry VIII. have been generally reenacted and = adopted in=20 this country, and probably, with increased facilities for partition." In = some=20 states the courts of law have jurisdiction; the courts of equity have = for a long=20 time exercised jurisdiction in awarding partition. 1 Johns. Ch. R. 113; = 1 Johns.=20 Ch. R. 302; 4 Randolph's R. 493; State Eq. Rep. S. C. 106. In = Massachusetts, the=20 statute authorizes a partition to be effected by petition without writ. = 15 Mass.=20 R. 155; 2 Mass. Rep. 462. In Pennsylvania, intestates' estates, may be = divided=20 upon petition to the orphans' court. By the civil code of Louisiana, = art. 1214,=20 et seq., partition of a succession may be made. Vide, generally, = Cruise's Dig.=20 tit. 32, ch. 6, s. 1 5; Com. Dig. Pleader, 3 F; Id. Parcener, C; Id. = vol. viii.=20 Append. h. t. 16 Vin. Ab. 217; 1 Supp. to Yes. jr. 168, 171; Civ. Code = of Louis.=20 B. 3, t. 1, c. 8.

5. Courts of equity exercise jurisdiction in cases of partition on = various=20 grounds, in cases of such complication of titles, when no adequate = remedy can be=20 had at law; 17 Ves. 551; 2 Freem. 26; but even in such cases the remedy = in=20 equity is more complete, for equity directs conveyances to be made, by = which the=20 title is more secure. "Partition at law, and in equity," says Lord = Redesdale,=20 "are very different things. The first operates by the judgment of a = court of=20 law, and delivering up possession in pursuance of it, which concludes = all the=20 parties to it. Partition in equity proceeds upon conveyances to be = executed by=20 the parties; and if the parties be not competent to execute the = conveyance, the=20 partition cannot be effectually had." 2 Sch. & Lef. 371. See 1 Hill. = Ab. c.=20 55, where may be found an abstract of the laws of the several states on = this=20 subject.

PARTNERS, contracts. Persons who have united together and = formed a=20 partnership. 2. Every person sui juris is competent to contract the = relation of=20 a partner. An infant may by law be a partner. 5 B & A. 159; but a = feme=20 covert, not being capable of contracting, cannot enter into partnership; = and=20 altbough married women are not unfrequently entitled to shares in = banking=20 houses, and other mercantile concerns, under positive covenants, yet = when this=20 happens, their hushands are entitled to such shares, and become partners = in=20 their steads. Whether a feme sole trader in Pennsylvania could enter = into such=20 contract, seems not settled. See 2 Serg. & Rawle, 189; see also, 2 = Nott=20 & 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=20 actual ostensible partner is a party who not only participates, in the = profits=20 and contributes to the losses, but.who appears and exhibits himself to = the world=20 as a person connected with the partnership, and as forming a component = member of=20 a firm. He is clearly answerable for the debts and engagements of, the=20 partnership; his right to a share of the, profits, or the permitted = exhibition=20 of his name as partner, would be sufficient to render him responsible. 6 = Serg.=20 & Rawle, 259, 337; Barnard. 343; 2 Blackst. R. 998; 17 Ves. 404;. 18 = Ves.=20 301; 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=20 trade, but his name being suppressed and concealed from the firm, his = interest=20 is consequently not apparent. He is liable as a partner, because he = receives and=20 takes from the creditors a part of that fund which is the proper = security to=20 them for the satisfaction of debts, and upon which they rely for = payment. 16=20 Johns. R. 40. Another reason assigned for subjecting a dormant partner = to=20 responsibility is, that if he were exempted he would receive usurious = interest=20 for his capital, without its being attended with any risk. 1 Dougl. 371; = 4 East,=20 R. 143; 10 Johns. R. 226; 4 B. & A. 663; 8 Man. Gr. & Scott, = 641, 650.=20 But in order to render one liable as a partner, he must receive the = profits as=20 such, and not merely his wages; to be paid out of the profits. Vide = Profits.=20

5. - 3. A, nominal partner is one who has not any actual interest in = the=20 trade or its profits, but, by allowing his name to be used, he holds = himself out=20 to the world as having an apparent interest. He is liable as a partner, = because=20 of these false appearance he holds forth to the world in representing = himself to=20 be jointly concerned in interest with those with whom he is apparently=20 associated. 2 H. Bl. 235; 1 Esp. N. P. O. 29; 6 Serg. & R. 338; = Watts.=20 Partn. 26.

6. A partner in a private commercial partnership cannot introduce a = stranger=20 into the firm as a partner without the consent of all the copartners. If = he=20 should attempt to do so, this may make such stranger a partner with the = partner=20 who has associated with such third person; this will be a partnership, = distinct=20 from the first, and limited to the share of that partner who has so = joined=20 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,=20 each individual member is answerable in solido for the amount of the = whole of=20 the debts contracted by the partnership, without reference either to the = extent=20 of his own separate beneficial interest in the concern, or. to any = private=20 arrangement or agreement that may exist between himself and his = copartners,=20 stipulating for a restricted responsibility. 1 Ves. & Bea. 157; 9 = East, 527;=20 5 Burr. 2611; 2 Bl. R. 947; 1 East, R. 20; 1 Ves. sen. 497; 2 Desaus. R. = 148; 4=20 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=20 partner- ship; Civ. Code of Lo. art. 2843; each partner is bound for his = share=20 of the partnership debts, calculating such share in proportion to the = number of=20 the partners, without any attention to the proportion of the stock or = profits=20 each is entitled to id. art. 2844.

8. Partners are bound by what is done by one in the course of the = business of=20 the partnership. Their liability under contracts is commensurate and = coextensive=20 with their rights. Although the general rule of law is, that no one is = liable=20 upon any contract except such as are privy to it; yet this is not = contravened by=20 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=20 as each is vested with a power enabling him to act, at once as principal = and as=20 the authorized agent of his copartners. Wats. Partn. 167; Gow. Partn. = 53. It is=20 doubtful, however, whether one can close the business by a general = assignment of=20 the partnership property for the benefit of creditors. Pierpont and Lord = v.=20 Graham. Cir. Court, April 1820, MS. Whart. Dig. 453, 1st ed.; 4 Wash. C. = C. R.=20 232; see 1 Brock. R. 456; 3 Paige's R. 517; 5 Paige's R. 30; 1 Desaus. = R. 537; 4=20 Day's. R. 425; 5 Cranch, 300; 1 Hoffm. R. 08, 511; Stor. Partn. =A7101; = 2 Washb.=20 R. 390.

9. One partner can, in simple contracts, bind his copartners in = transactions=20 relative to the partnership. 7 T. R. 207; 4 Dall. 286; 1 Dall. 269. But = a=20 security given by, one partner, in the partnership name, known to be for = his=20 individual debt, does not bind the firm. 2 Caines' R. 246; 4 Johns. R. = 251; 4=20 Johns. R. 262, in note; 2 Johns. R. 300; 16 Johns. R. 34; 4 Serg. & = Rawle,=20 397. Nor can one partner bind his copartners by deed; and this both for=20 technical reason and the general policy of the law. Wats. Partn. 218; = Gow on=20 Partn. 83; 3 Murph. 321; 4 Sm. & Marsh. 261; 7 N. H. Rep. 549; 1 = Pike, 206;=20 2 Harr. 147; 2 B. Monr. 267; 5 B. Monr. 47; 4 Miss. 417; 1 McMullen, = 311; 3=20 Johns. Cas. 180; Taylor's R. 113; 2 Caines' R. 254; 2 Caines' Err. 1;. 2 = Johns.=20 R. 213; 19 Johns. R. 513; 1 Dall. 11,9. But see 6 Watts & Serg. 165, = where=20 it is said this rule admits of sorae qualifications. The rule does not = however=20 apply to cases where the object is to discharge a debt as due to it; as = to give=20 a general release by deed. 3 John. 68; 7 N. H. Rep. 550; 1 Wend. 326; 20 = Wend.=20 251; 22 Wend. 324. It seems to be an admitted principle, that one = partner has no=20 power to submit to arbitration any matters whatsoever, concerning or = arising out=20 of the partnership business. Story, Partn. =A7114; Com. Dig. = Arbitrament, D 2; 3=20 Bing. R. 101; 1 C. M. & R. 681; 1 Pet. R. 222; 19 John. R. 137; 3 = Kent, Com.=20 49, 4th ed. But in Pennsylvania, 12 S. & R. 243, and Kentucky, 3 = Mont. R.=20 433, one, partner may by an unsealed, instrument refer any partnership = matter to=20 arbitration, though he has no implied authority to consent to an order = for a=20 judgment in an action against himself and his copartner. 3 Mann. G. = & Scott,=20 742. Nor has one partner the power to confess a judgment, or authorize = the=20 confession of a judgment against the firm, when no writ has been issued = against=20 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.=20 119; 1 W. & S. 340, 519; 7 W. & S. 142; 2 Caines, 254; 20 Wend. = 609; and=20 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=20 a dissent among them, it may be laid down, 1. That when there are = stipulations=20 on this subject, they must govern. Tum. & Russ. 496, 517. 2. In the = absence=20 of all agreement on the subject, each partner has an equal voice, though = their=20 interests be different, and a majority have a right to conduct the = business. 3=20 John. Ch. R . 400; 3 Chit. Com. Law, 236; Colly. Partn. B. 2, c. 2, s. = 1; Id. B.=20 3, c. 1, s. 262 - Story, Partn. 123. 3. When there are only two = partners, and=20 they dissent, neither can bind the partnership, when the person with = whom they=20 deal has notice of such disagreement. 1 Stark. R. 164. See 1 Camp. R. = 403; 10=20 East, R. 264; 7 Price, Rep. 193; 6 Ves. 777; 16 Vin. Ab. 244. But this = right of=20 the majority is confined to transactions in the usual scope of the = business, and=20 not to a change of the articles of the partnership, for in such case all = the=20 partners must consent, 4 John. Ch. R. 573.

11. The stock used in a joint undertaking by way of partnership in = trade, is=20 always considered in common and not as joint property, and consequently = there is=20 no survivorship therein; jus accrescendi inter mercatores, pro beneficio = commercii, locum non habet. On the death of one partner, therefore, his=20 representatives become tenants in common with the survivor, of all the=20 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=20 into possession vests exclusively in the survivor; although when they = are=20 recovered, the representatives of the deceased partner have, in equity, = the same=20 right of sharing and participating in them which their testator or = intestate=20 would have possessed had he been living. 1 Ld. Raym. 340. See 2 Dall. = 65, 66, in=20 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=20 subject in all respects to the ordinary incident's of land held in = common. 1=20 Sumn. R. 174; 7 Conn. 11; 5 Hill, (N. Y.) Rep. 118; 4 Mete. 537. But in = equity=20 the partners may by agreement, express or implied, affect real estate = with a=20 trust as, a partnership property, and, by that means, render it in, = equity=20 subject to the rules applicable to partnership property as between the = partners=20 themselves and all claiming under them. 2 Edw. R. 28; 2 Rand. R. 183; 7, = S.=20 & R. 438, 441; Conn. 11; 5 Metc. 582; 6 Yerg. 20. See, generally, as = to=20 partners, 5 Com. Dig. Merchant, D; Bac. Abr. Merchant, C; Wats. on = Partn.=20 passim; Gow on Partn. passim; Supp. to Ves. jr. vol. 1, p. 36, 279 281, = 312,=20 389, 449, 503; Id. vol. 2, p. 40, 314, 315, 317, 362, 364, 377, 384, = 456; 1=20 Salk. 291, 392; 1 Swanst. R. 506, 9; 10 East R. 265; 4 Ves. 396; 1 Hare = &=20 Wall. Sel. Dec. 292, 304; Civ. Code of Lo. B. 3, t. 11; Code Civ. L. 3, = t. 9;=20 Code de Proc. Civ. L. 1, t. 3; Chit. Contr. 66 to 82; Poth. Contrat de = Soeiete;=20 Bouv. Inst. Index, h. t. Vide Articles of Partnership; Death of. a = partner;=20 Dissolution; Firm; Partnership.

PARTNERSHIP, contracts. An agreement between two or more = persons, for=20 joining together their money, goods, labor and skill, or either or all = of them,=20 for the purpose of advancing fair trade, and of dividing the profits and = losses=20 arising from it, proportionably or otherwise, between them. 2 Bouv. = Inst. n.=20 1435; Watson on Partn. 1; Gow on Partn. 2; see Civ. Code of Lo. art. = 2772; Code=20 Civ. art. 1832; Forbes. Inst. of Scotch Law, part 2, B. 3, s. 3, p. 184; = edit.=20 Edin. 1722, 12mo.; Dolmat, Civ. Law, vol. 1, p. 85; 9. John. R. 488; = Puffend. B.=20 5, c. 8; 2 H. Bl. 246; 1 H. Bl. 37; Ersk. Inst. B. 3, t. 3, =A718; = Tapia,=20 Elemontos de Jurisp. Mercantil, p. 86; 5 Duv. Dr. Civ. Fr. tit. 9, c. 1, = n, 17;=20 4 Pard. Dr. Com. n. 966; 2 Bell's Com. 611, 5th ed.; Aso & Mann. = Inst. B. 2,=20 tit.

15. Sometimes partnership signifies a moral being composed of the = reunion of=20 all the partners. 4 Pard. n. 966. As a partnership has a separate = existence as a=20 person, it becomes liable to fulfil all its engagements, and the = partners are=20 individually bound and responsible only on its default, as sureties. 2 = Bell's=20 Comm. B. 6, c. 1, n. 4, p. 619, 5th ed.

2. Partnerships will be considered, 1st. In respect to their = character and=20 extent, as they regard property. 2d. With relation to the number and = character=20 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=20 dissolution. 8th. As to partnerships in Louisiana.

3. - =A71. In respect to their character and extent, as they regard = property,=20 partnerships maybe divided into three classes, namely: universal = partnerships;=20 general partnerships; and limited or special partnerships. 1. A = universal=20 partnership is one where the parties agree to bring into thefir m all = their=20 property, real, personal and mixed, and to employ all their skill, = labor, and=20 services, in the trade, or business, for their common benefit. This, = kind of=20 partnership is perhaps unknown in the United States. 5 Mason, R. 176. =

4. - 2. General partnerships are properly such, where the parties = carry on=20 all their trade and business for their joint benefit and profit; and it = is not=20 material whether the capital stock be limited or not, or the = contributions of=20 the partners be equal or unequal. Cowp. 814. The game appellation is = given to a=20 partnership where the parties are engaged in one branch of trade only. =

5. - 3. Special partnerships, are those formed for a special or = particular=20 branch of business, as contradistinguished from the general business or=20 employment of the parties, or of one of them. When they extend to a = single=20 transaction or adventure only, such as the purchase and sale of a = particular=20 parcel of goods, they are more commonly called limited partnerships. The = appellation is however given to both classes of cases indiscriminately. = Story,=20 Partn. =A775

6. - =A72. When considered in relation to the number and character of = the=20 parties, partnerships are divided into private partnerships and public=20 companies. 1. Private partnerships are those which consist of two or = more=20 partners for some private undertaking, trade, or business.

7. =A72. Public companies are those where a greater number of persons = are=20 concerned, and the stock is divided into a considerable number of = shares, the=20 object embracing generally public as well as private interests. This = term is,=20 however, perhaps loosely applied, as these companies have for the most = part the=20 character of private associations. They are either incorporated or not. = The=20 incorporated are to be governed by the rules established in their = respective=20 charters. See Corporation. The unincorporated are in general subject, to = all the=20 regulations of a common private partnership.

8. - =A73. In the French law, partnerships are divided into three = kinds,=20 namely: 1. Partnerships under a collective name, that is, where the name = of the=20 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=20 and severally responsible with all their estates, and one or, more other = persons=20 who furnish a part or the whole of the capital, who are liable only to = the=20 extent of the capital they have furnished. The business is carried on = in, the=20 name of the general partners. This species of partnership, with some = modifica-=20 tions, has been adopted in several of the states of the American union. = 3 Kent,=20 Com. 34, 4th ed.; 2 Bouv. Inst. n. 1473, et seq.

10. - 3. Anonymous partnerships are those in which all the partners = are=20 engaged in the business, there is no social name or firm, but a name = designating=20 the object of the association. The business is managed by syndics or = directors.=20 Vide Poth. de Societe, h. t.; 5, Duv. Dr. Civ., Fr. h. t.; Pardes. Dr: = Com. h.=20 t.; Code de Com. h. t.; Merl. Repert. h. t. In Louisiana a similar = division has=20 been made. Civ. Code of Lo. h. t.

11. - =A74. Partnerships are created by mere act of the parties; and = in this=20 they differ from, corporations which require the sanction of public = authority,=20 either express or implied. Aug. & Ames on Corp. 23. The consent of = the=20 parties may be testified, either in express terms, as by articles of=20 partnership, or positive agreement; or the assent may be tacit, and to = be=20 implied solely from the act of the parties. An implied or presumptive = assent has=20 equal operation with one that is express and determined. And it may be = laid down=20 as a general and undeniable proposition, that persons having a mutual = interest=20 in the profits and loss of any business, or particular branch of = business,=20 carried on by them, or persons appearing ostensibly to the world as = joint=20 traders, are to be recognized and treated as partners, whatever may be = the=20 nature of the agreement under which they act, or whatever motive or = inducement=20 may prompt them to such an exhibition. 1 Dall. 269. 12. A community of = property=20 does not of itself create a partnership, however that property may be = acquired,=20 whether by purchase, donation, accession, inheritance or prescription. = Civ. Code=20 of Louis. art. 2777. Hence joint tenants or tenants in common of lands, = goods,=20 or chattels, under devises or bequests in last wills or testaments, and = doeds or=20 donations inter vivos, and inheritances or successions, are not = partners. Story,=20 Partn. =A73.

13. Joint owners of ships are not, in consequence of such ownership, = to be=20 considered as partners. Abbot on Ship. 68; 3. Kent, Com. 25, 4th ed.; 15 = Wend.=20 187; and see Poth. De Societe, n. 2; 4 Pard. Dr. Com. n. 969; 17 Dur. = Dr. Fr. n.=20 320; 5 Duv. Dr. Civ. Fr. n. 33.

14.- The free and personal choice of the contracting parties is so=20 essentially necessary to the constituting of a partnership, that even = executors=20 and representatives of deceased partners do not, in their representative = capacity, succeed to the state and condition of partners; 2 Ves. sen. = 34; Wats.=20 on Partn. 6; although a community of interest necessarily exists between = them=20 and the surviving partners, until the affairs of the partnership are = wound up.=20 11 Ves. 3. When there is a positive agreement at the commencement of the = partnership, that the personaI representative or heir of a partner shall = succeed=20 him in the partnership, the obligation will be considered valid. Coll. = on part.=20 B. 1; ch. 1, =A711; Story, Partn. =A75.

15. - =A75. The object of the partnership must be legal. All = partnerships,=20 therefore, which are formed for any purpose forbidden by law or good = morals, are=20 null and void. But all the partners in such a partnership are jointly = liable to=20 third persons who may contract with them without a knowledge of the = illegal or=20 immoral object of the partnership. Civ. Code of Lo. art.- 2775; 5 B. = & A.=20 341 2 B. & P. 371; 3 T. R. 454; Poth. Oblig. by Evaans, vol. 2, page = 3; Gow=20 on Partn. 8; Wats. Partn. 131. Partnerships are not confined to mere = commercial=20 trade or business; but generally extend to, manufactures and, to all = other=20 lawful occupations and employments, or to professional or other = business. They=20 may extend to all the business of the parties; to a single branch of = such=20 business; to a single adventure; or to a single thing. But there cannot = lawfully=20 be a partnership in a mere, personal office, especially when it is of a = public=20 nature, requiring the personal confidence in the skill and integrity of = the=20 officer. Story, Partn. =A781; Colly. Partn. 31.

16. - =A76. Partnerships may be formed to last for life, or for a = specific=20 period of time; they may be conditional or indefinite in their duration, = or for=20 a single adventure or dealing; this depends altogether on the will of = the=20 parties. The period of duration is either expressed or implied, but the = law will=20 not presume that it shall last beyond life. 1 Swanst. 521; 1 J. Wils. = R., 181.=20 When a particular term is fixed, it is presumed to endure until the = period has=20 elapsed; when no term is fixed, it is presumed to endure for the life of = the=20 parties, unless previously dissolved, by the acts of one of them, by = mutual=20 consent, or by operation of law. Story, Partn. =A784. When no time is = limited for=20 the duration of a general trading partnership, it is a partnership at = will, and=20 may be dissolved at any time at the pleasure of any one or more of the = partners.=20

17. - =A77. A partnership may be dissolved in several ways: when the=20 partnership is formed for a single dealing or transaction, it follows = that it is=20 at an end so soon as the dealing or transaction in which the partners = jointly=20 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=20 indefinite period of time, the causes which may operate a destruction of = it, are=20 various. In the case of a partnership limited as to its duration, it = may, in the=20 intermediate time, before the restricted period of its termination = arrives, be=20 dissolved either by the death, the confirmed insanity, the bankruptcy of = all or=20 one of the partners, or it may endure the stipulated period, and expire = with the=20 effluxion of time; but where the partnership is unlimited as to its = existence,=20 although in the instances of death or bankruptcy, it is determined, yet = if they=20 do not intervene, any partner may withdraw himself from it whenever he = thinks=20 proper. Code, lib. 4, t. 37, 1, 5.

19. Besides the causes above stated for a dissolution, a partnership, = limited=20 or unlimited as to its duration, may be dissolved by the decree of a = court of=20 equity, where the conduct of some or all of the partners has been such = as not to=20 carry on the trade or undertaking on the terms stipulated; Gow on Partn. = 269; or=20 by the involuntary or compulsory, sale or transfer of the partnership = interest=20 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=20 indissoluble partnership, and that, therefore, any partner may withdraw = at any=20 time; and by that act the partnership will be solved; the other party = having his=20 action against the withdrawing partner upon his covenant to continue the = partnership; 19 Johns. R. 538. This doctrine is not in accordance with = the=20 English law. Indeed it is even doubtful in New York. Story, Eq. Jur. = =A7668;=20 Story, Partn. =A7275; 3 Kent Com. 61, 4th ed.; 1 Hoffm. Ch. R. 534. See = Gow on=20 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=20 partnership; or by the agreement of the parties. See Civ. Code of Louis. = art.=20 2847 Code Civ. B. 3, fit. 9, c 4 art. 1865 to 1872; 2 Bell's Com. 631 to = 6414,=20 6th ed. See Dissolution.

22. The effect of the dissolution of the partnership is to disable = any one of=20 the partners from contracting new obligations or engagements on account = of the=20 firm. 1 Pet., R. 351; 3 McCord, 378; 4 Munf. 215; 2 John., 300; 5 Mason, = 56;=20 Harper, R. 470; 4 John. 224; 1 McCord, 338; 6 Cowen, 701. But = notwithstanding=20 the dissolution there remain, with each of the partners, certain powers, = rights,=20 duties, authorities, and relations between them, which are indispensable = to the=20 complete arrangement and final settlement of the affairs of the firm. = The=20 partnership must, therefore, subsist for many purposes, notwithstanding = the=20 dissolution. Among these are, 1st. The completion of an the unperformed=20 engagements of the partnership. 2d. The conversion of all the property, = means=20 and assets of the partnership, existing at the time of the dissolution, = for the=20 benefit of those who, were partners, according to their respective = shares. 3d.=20 The application of the partnership funds, to, the liquidation of the = partnership=20 debts. Story, Partn. =A7324.

23. - =A73. By the laws of Louisiana, partnerships are divided, as to = their=20 object, into commercial partnerships and ordinary partnerships = Commercial=20 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=20 manufacture. 2. For buying and selling any personal property whatsoever, = as=20 factors or brokers. 3. For carrying personal property for hire, in ships = or=20 other vessels. Civ. Code of Lo. art., 2796.

24. Ordinary partnerships are, such as are not commercial; they are = divided=20 into universal or particular partnerships. Id. art. 2797.

25. Universal partnership is a contract by which the parties agree to = make a=20 common stock of all the property they respectively possess; they may = extend it=20 to all the property real and personal, or restrict it to personal only; = they=20 may, as, in other partnerships, agree that the property itself shall be = common=20 stock, or that the fruits only shall be such; but prop erty which may = accrue to=20 one of the parties, after entering into the partnership, by donation,=20 succession, or legacy, does not become common stock, and any stipulation = to that=20 effect, previous to the obtaining the property aforesaid, is void. Code = Civ. of=20 Lo.art. 2800.

26. Particular partnerships are such as are formed for any business = not of a=20 commercial nature. Id. art. 2806. The business of thispartnership must = be=20 conducted in the name of all the persons concerned, unless a firm is = adopted by=20 the articles of partnership reduced to writing, and recorded as is = prescribed=20 with respect to partnerships in commendam. Id. art 2808.

27. There is also a species of partnership which may be incorporated = with=20 either of the other kinds, called partnership in commendam, or limited=20 partnership. Id. art. 799. Partnership in commendam is formed by a = contract, by=20 which one person or partnership agrees to furnish another person or = partnership=20 a certain amount, either in property or money, to be employed by the = person or=20 partnership whom it is furnished, in his or their own name or firm, on = condition=20 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,=20 and no more. Id. art. 2810.

28. Every species of partnership may receive such partners. It is = therefore a=20 modification of which the several kinds of partnerships are susceptible, = rather=20 than a separate division of partnerships. Vide Bouv. Inst. Index, h. t.: = Firm.=20

PARTOWNERS. Persons who hold real or personal property by the = same=20 title, either as tenants in common, joint tenants, or coparceners. They = are=20 sometimes called guasi partners and differ from partners in this, that = they are=20 either joint owners, or tenants in common, each having an independent, = although=20 an undivided interest in the property; neither can transfer or dispose = of the=20 whole property, nor act for the others in relation to it, but merely for = his own=20 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=20 seized per my et per tout; but still each one has an independent, and to = a=20 certain extent a distinct right during his lifetime, which he can = dispose of and=20 sever the tenancy.

3. Tenants in common hold undivided portions of the property by = several=20 titles, or in several rights, although by one title. Their possession, = however,=20 they hold in common and undivided. Whereas, in partnerships, the = partners are=20 joint owners of the property, and each has a right to sell or dispose of = the=20 whole, unless otherwise provided for in the articles of partnership. = Colly.=20 Partn. 86; Wats. Partn. 66; Story, Partn. =A791.

4. At common law, each of the owners of a chattel has an equal title = and=20 right to possess and use it; and in the case of common cbattels the law = has=20 generally left this right to the free discretion of the several owners = but in=20 regard to ships, the common law has adopted and followed' out the = doctrine of=20 the courts of admiralty. It authorizes the majority in value and = interest to=20 employ the ship upon any probable design. This is done, not without = guarding the=20 rights, of the minority. When the majority desire to employ a ship upon = any=20 particular voyage or adventure, they have a right to do so, upon giving = security=20 by stipulation to the minority, if required, to bring back and restore = the ship=20 to them, or in case of her loss, to pay them the value of their shares. = Abbott,=20 Shipp. 70; 3 Kent Com. 151, 4th ed.; 2 Bro. Civ. Law, 131; Molloy, B. 2, = c. 1,=20 =A73; 2 Pet. Adm. R. 288; Story, Partn. 428 11 Pet. R. 175. When the = majority do=20 not choose to employ the ship, the minority have the same right, upon = giving=20 similar security. 11 Pet. R. 175; 1 Hagg. Adm. R. 306; Jacobi: Sea Laws, = 442.=20

5. When part owners are equally divided as to the employment, upon = any=20 particular voyage, the courts of admiralty have man fested a disposition = to=20 support the right of the court to order a sale of the ship. Story Partn. = =A7439;=20 Bee's Adm. R. 2; Gilpin, R. 10; 18 Am. Jur. 486.

PARTURITION. The act of giving birth to a child.

2. Sometimes questions arise how far means may be employed to promote = par=20 turition, which cause, or are likely to cause others in relation to it, = but=20 merely for his own share, and to the extent of his own several right and = interest.

3. In joint tenancy of goods or chattels, it is truej tbd joint = tenants are=20 so ized per my et per toitt, but still each one has an independent, and = to a=20 certain extent a distinct right during his lifetime, which he can = dispose of and=20 sever the tenancy.

3. Tenants in common hold undivided portions of the, property by = several=20 titles, or in several rights, although by one title. Their possession, = bowever,=20 they hold in common and undivided. Whereas, in partnerships, the = partners are=20 joint owners of the property, and each has a right to sell or dispose of = the=20 whole, unless otherwise provided for in the articles of partnership. = Colly.=20 Partn. 86; Wats. Partn. 66; Story Partn. =A791.

4. At common law, etch of the owners of a ebattel has an equal title = and=20 right to possess and use it; and in the case of common chattels the law = has=20 generally, left this right to the free discretion of the several owners, = but in=20 regard to ships, the common law has adopted and followed out the = doctrine of the=20 courts of admiralty. It authorizes the majority in value and interest to = employ=20 the rehip upon any probable design. This is done, not without guarding = the=20 rights, of the minority: When the maiority desire to employ a ship upon = any=20 particular voyage or adventure, they have a right to do so, upon giving = security=20 by stipulation to the minority, if required, to bring back and restore = the rbip=20 to them, or in case of her loss, to pay them the value of their shares. = Abbott,=20 Shipp. 70; 3 Kent, Com. 151, 4th ed.; 2 Bro. Civ. Law, 131; Molloy, B. = 2, c. 1,=20 =A73; 2 Pet. Adm. R. 288, Story, Partn. 428; 11 Pet. R. 175. When the = majority do=20 not choose to employ the ship, the minority have, the same right, upon = 'vi"=20 similar security. 11 Pet. R. 175; I @agg! Adm. R. 306; Jacobi. Sea Laws, = 442.=20

6. When part owners are equally divided as to the employment, upon = any=20 particular voyage, the courts of admiralty, have manifested a = disposition to=20 support the right of the court to order a sale of the ship. Story, = Partn. =A7439;=20 Bee's Adm. R. 12 i Gilpili, R. 10; 18 Am. Jur. 486.

PARTURITION. Tho act of giving birth to a child

2. Sometimes questions arise bow far means may be employed to promote = par-turition, which cause, or are likely to cause, the death of the = foetus.=20 These means, in cases of deformed pelvis, are abortion in the early = months, by=20 embryotomy, by symphysotomy, and by the Caesarian section. These means = are=20 justifiable to save the life of the mother, and sometimes some of them = have=20 saved the lives of both. Vide Caesarian operation; Delivery; Pregnancy. =

PARTUS. The child just before it is born, or immediately after = its=20 birth. Before birth the partus is considered as a portion of the mother. = Dig.=20 25, 4, 1, 1. -See Birth; Foetus; Proles; Prolicide.

PARTY, practice, contracts. When applied to practice, by party = is=20 understood either the plaintiff or defendant. In contracts, a party is = one or=20 more persons who engage to perform or receive the performance of some = agreement.=20 Vide Parties to contrads; Parties to 'actions; Parties to a suit in = equity.

PARTY-JURY. An ancient word used to signify a jury de medietas = linguae, (q. v.) or one composed one-half of natives, and the other of=20 foreigners. Lexic. Techn. h. t.

PARTY WALL. A wall erected on the line between two adjoining = estates,=20 belonging to different persons, for the use of both estates. 2 Bouv. = Inst. n.=20 1615.

2. Party walls are generally regulated by acts of the local = legislatures. The=20 principles of these acts generally are, that the wall shall be built = equally on=20 the lands of the adjoining owners, at their joint expense, but when only = one=20 owner wishes to use such wall, it is built at his expense, and when the = other=20 wishes to make use of it, he pays one half of its value; each owner has = a right=20 to place his joists in it, and use it for the support of his roof. When = the=20 party wall has been built, and the adjoining owner is desirous of having = a=20 deeper foundation, he has a right to undermine such wall, using due care = and=20 diligence to prevent any injury to his neighbor, and having done so, he = is not=20 answerable for any consequential damages which may ensue. 17 Jobn. R. = 92; 12=20 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=20 persons, and one of them takes it down with his buildings, he is = required to=20 erect another in its place in a reasonable time, and with the least=20 inconvenience; the other owner must contribute to the expense, if the = wall=20 required repairs, but such expense will be limited to the costs of the = old wall.=20 3 Kent, Com. 436. When the wall is taken down, it must be done with = care; but it=20 is not the duty of the person taking it down to shore up or prop = the.,house of=20 his neighbor, to prevent it from falling; if, however, the work be done = with=20 negligence, by which injury accrues to the neighboring house, an action = will=20 lie. 1 Moody & M. 362. Vide 4 C. & P. 161; 9 B. & C. 725; 12 = Mass.=20 R. 220; 4 Paige's R. 169; 1 C. & J. 20; 1 Pick. 434; 12 Mass. 220; 2 = Roll.,=20 Ab. 564; 3 B. & Ad. 874; 2 Ad. &-Ell. 493 Crabb on R. P. =A7500. = In the=20 excellent treatise of M. Lepage, entitled "Lois des Batimens," part 1, = c. 3, s.=20 2, art. l, will be found a very minute examination of the subject of = party=20 walls, with many cases well calculated to illustrate our law. See also = Poth.=20 Contr. de Societe, prem. app. n. 207; 2 Hill.: Ab. 119; Toull. liv. 2, = t. 2, c.=20 3.

PASS. In the slave states this word signifies a certificate = given by=20 the master or mistress to a slave, in which it is stated that he is = permitted to=20 leave his home, with the authority of his master or mistress. The paper = on=20 which-such certificate is written is also called a pass.

PASS, practice. To be given, or entered; to proceed; as, let = the=20 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=20 upon the sale and the price, and nothing remains to be done to complete = the=20 agreement. 1 Bouv. Inst. n. 939.

3. When a jury decide upon the rights of the parties, which are in = issue,=20 they are said to pass upon them.

PASS BOOK, com. law. A book used by merchants with their = customers, in=20 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=20 purchase any. article. It ought to be a counterpart of the mercbant's = books, as=20 far as regards the customer's account.

3. Among English bankers, the term pass-book is given to a small book = made up=20 from time to time, from the banker's ledger, and forwarded to the = customer; this=20 is not considered as a statement of account between the parties, yet = when the=20 customer neglects for a long time to make any objection to the = correctness of=20 the entries he will be bound by them. 2 Atk. 252; 2 Deac. & Ch. 534; = 2 M.=20 & W. 2.

PASSAGE. A way over water; a voyage made over the sea or great = river;=20 as, the Sea Gull had a quick passage: the money paid for the = transportation of a=20 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=20 person with or without luggage on the water.

2. The difference between freight and passage money is this, that the = former=20 is claimable for the carriage of goods, and the latter for the carriage = of the=20 person. The same rules which govern the claim for freight affect that = for=20 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=20 in contradistinction to active. (q. v.) By active debts are understood = those=20 which may be employed in furnishing assets to a merchant to pay those = which he=20 owes, which are called passive debts.

PASSPORT, SEA BRIEF, or SEA LETTER, maritime law. A paper = containing a=20 permission from the neutral state to the captain or master of a ship or = vessel=20 to proceed on the voyage proposed; it usually contains his name and = residence;=20 the name, property, description, tonnage and destination of the ship; = the nature=20 and quantity of the cargo; the place from whence it comes, and its = destination;=20 with such other matters as the practice of the place requires.

2. - This document is indispensably necessary in time of war for the = safety=20 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;=20 these are intended to protect them on their journey from all = molestation, while=20 they are obedient to the laws. Passports are also granted by the = secretary of=20 state to persons travelling abroad, certifying that they are citizens of = the=20 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,=20 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.=20 127, it is provided as follows: That if the master of any vessel owned = in whole=20 or in part by a citizen of the United States of America, or by a citizen = of any=20 foreign country, shall take on board, such vessel, at any foreign port = or place,=20 a greater number of passengers than in the following proportion, to the = space=20 occupied by them and appropriated for their use, and unoccupied by = stores, or=20 other goods, not being the personal luggage of such passengers, that is = to say,=20 on the lower deck or platform one passenger for every fourteen clear = superficial=20 feet of deck, if such vessel is not to pass within the tropics during = such=20 voyage; but if such vessel is to pass within the tropics during such = voyage,=20 then one passenger, for every twenty such clear superficial feet of = deck, and on=20 the orlop deck (if any) one passenger for every thirty such superficial = feet in=20 all cases, with intent to bring such passengers to the United States of = America,=20 and shall leave such port or place with the same or any other number = thereof,=20 within the jurisdiction of the United States aforesaid, or if any such = master of=20 vessel shall take on board of his vessel, at any port or place within = the=20 jurisdiction of the United States aforesaid, any greater number of = passengers=20 than the proportions aforesaid admit, with intent to carry the same to = any=20 foreign port or place, every such master shall be deemed guilty of a=20 misdemeanor, and, upon conviction thereof before any circuit or district = court=20 of the United States aforesaid, shall, for each passenger taken on board = beyond=20 the above proportions, be fined in the sum of fifty dollars, and may = also be=20 imprisoned for any term not exceeding one year: Provided, That this act = shall=20 not be construed to permit any ship or vessel to carry more than two = passengers=20 to five tons of such ship or vessel.

3. - =A72. That if the passengers so taken on board of such vessel, = and brought=20 into or transported from the United States aforesaid, shall exceed the = number=20 limited by the last section to the number of twenty in the whole, such = vessel=20 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=20 tonnage.

4. - =A73. That if any such vessel as aforesaid shall have more than = two tiers=20 of berths, or in case, in such vessel, the interval between the floor = and the=20 deck or platform beneath shall not be at least six inches, and the = berths well=20 constructed, or in case the dimensions of such berths shall not be at = least six=20 feet in length, and at least eighteen inches in width, for each = passenger as=20 aforesaid, then the master of said vessel, and the owners thereof, = severally,=20 shall forfeit and pay the sum of five dollars for each and every = passenger on=20 board of said vessel on such voyage, to be recovered by the United = States=20 aforesaid, in any circuit or district court of the. United States where = such=20 vessel may arrive, or from which she sails.

5. - =A74. That, for the purposes of this act, it shall in all cases = be=20 computed that two children, each being under the age of eight years, = shall be=20 equal to one passenger, and that children under the age of one year = shall not be=20 included in the computation of the number of passengers.

6. - =A75. That the amount of the several penalties imposed by this = act shall=20 beliens on the vessel or vessels violating its provisions; and such = vessel may=20 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.=20 149, it is enacted, That so much of said act as authorizes shippers to = estimate=20 two children of eight years of age and under as one passenger, in the = assignment=20 of room, is hereby repealed.

10. The act of May 17, 1848, Minot's Statute at Large of United = States, p.=20 220, further provides, That all vessels, whether of the United States or = any=20 other country, having sufficient capacity according to law for fifty or = more=20 passengers, (other than cabin passengers,) shall, when employed in = transporting=20 such passengers between the United States and Europe, have on the upper = deck,=20 for the use of such passengers, a house over the passage-way leading to = the=20 apartment allotted to such passengers below deck, firmly secured to the = deck, or=20 combings, of the hatch, with two doors, the sills of which shall be at = least one=20 foot above the deck, so constructed that one door or window in such = house may,=20 at all times, be left open for ventilation; and all vessels so employed, = and=20 having the capacity to carry one hundred and fifty such passengers, or = more,=20 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:=20 Provided, nevertheless, Booby hatches may, be substituted for such = houses in=20 vessels having three permanent decks.

11. - =A72. That every such vessel so employed, and having the legal = capacity=20 for more than one hundred such passengers, shall have at least two = ventilators=20 to purify the apartment or apartments occupied by such passengers; one = of which=20 shall be inserted in the after part of the apartment or apartments, and = the=20 other shall be placed in the forward portion of the apartment or = apartments, and=20 one of them shall have an exhausting cap to carry off the foul air, and = the=20 other a receiving cap to carry down the fresh air which said ventilators = shall=20 have a capacity proportioned to the size of the apartment or apartments = to be=20 purified; namely, if the apartment or apartments will lawfully authorize = the=20 reception of two hundred such passengers, the capacity of such = ventilators shall=20 each of them be equal to a tube of twelve inches diameter in the clear, = and in=20 proportion for larger or smaller apartments; and all said ventilators = shall rise=20 at least four feet six inches above the upper deck of any such vessel, = and be of=20 the most approved form and construction: Provided, That if it shall = appear from=20 the report to be made and approved., as provided in the seventh section = of this=20 act that such vessel is equally well ventilated by any other means, such = other=20 means of ventilation shall be deemed, and held to be, a compliance with = the=20 provisions of this section.

12. - =A73. That every vessel carrying more than fifty such = passengers shall=20 have for their use on deck, housed and conveniently arranged, at least = one=20 camboose or cooking range, the dimensions of which shall be equal to = four feet=20 long and one foot six inches wide for every two hundred passengers; and=20 provisions shall be made, in the manner aforesaid in this ratio for a = greater or=20 less number of passengers: Provided, however, Ana nothing herein = contained shall=20 take away the right to make such arrangements for cooking between decks, = if that=20 shall be deemed desirable.

13. - =A74. That all vessels employed as aforesaid shall have on = board, for the=20 use of such passengers, at the time of leaving the last port whence such = vessel=20 shall sail, well secured under deck, for each passenger, at least = fifteen pounds=20 of good navy bread, ten pounds of rice, ten pounds of oatmeal, ten = pounds of=20 wheat flour, ten pounds of peas and beans, thirty-five pounds of = potatoes, one=20 pint of vinegar, sixty gallons of fresh water, ten pounds of salted = pork, free=20 of bone, all to be of good quality, and a sufficient supply of fuel for = cooking;=20 but at places where either rice, oatmeal, wheat flour or peas and beans = cannot=20 be procured, of good quality and on reasonable terms, the quantity of = either or=20 any of the other last-named articles may be increased and substituted = therefor;=20 and in case potatoes cannot be procured on reasonable terms, one pound = of either=20 of said articles maybe substituted in lieu of five pounds of potatoes; = and the=20 captains of such vessels, shall deliver to each passenger at least = one-tenth=20 part, of the aforesaid provisions weekly, commencing on the day of = sailing, and=20 daily at least three quarts of water, and sufficient fuel for cooking; = and if=20 the passengers on board of any such vessel in which the provisions, fuel = and=20 water herein required shall not have been provided as aforesaid, shall = at any=20 time be put on short allowance during, any voyage, the master or owner = of any=20 such vessel shall pay to each and every passenger who shall have been = put on=20 short allowance the sum of three dollars for each and every day they may = have=20 been on such short allowance, to be recovered in the eircuit or district = court=20 of the United States; Provided, nevertheless, and nothing herein = contained shall=20 prevent any passenger, with the consent of the captain, from furnishing = for=20 himself the articles of food herein specified; and, if, put on board in = good=20 order, it shall fully satisfy the provisions of this act so far as = regards food,=20 and provided further, That any passenger may also, with the consent of = the=20 captain, furnish for himself an equivalent for the articles of food = required in=20 other and different articles: and if, without waste or neglect on the = part of=20 the passenger, or inevitable accident, they prove insufficient, and the = captain=20 shall furnish comfortable food to such passengers during the residue of = the=20 voyage, this, in regard to food, shall also be a compliance with the = terms of=20 this act.

14. - =A75. That the captain of any such vessel so employed is hereby = authorized to maintain good discipline, and such habits of cleanliness = among=20 such passengers, as will tend to the preservation and promotion of = health,; and=20 to that end, he shall cause such regulations as he may adopt for this = purpose to=20 be posted up, before sailing, on board such vessel, in a place = accessible to=20 such passengers, and stall keep the same so posted up during the voyage; = and it=20 is hereby made the duty of said captain to cause the apartment occupied = by such=20 passengers to be kept, at all times, in a clean healthy state, and the = owners of=20 every such vessel so employed are required to construct the decks, and = all parts=20 of said apartment, so that it can be thoroughly cleansed; and they shall = also=20 provide a safe, convenient privy or water closet for the exclusive use = of every=20 one hundred such passengers. And when the weather is such that said = passengers=20 cannot be mustered on deck with their bedding, it shall be the duty of = the=20 captain of every such vessel to cause the deck occupied by such = passengers to be=20 cleaned [cleansed] with chloride of lime, or some other equally = efficient=20 disinfecting agent, and also at such other times as said captain may = deem=20 necessary.

15. - =A76 That the master and owner or owners of any such vessel so = employed,=20 which shall not be provided with the house or houses over the = passage-ways, as=20 prescribed in the first section of this act; or with ventilators, as = proscribed=20 in the second section of this act; or with the cambooses or cooking = ranges, with=20 the houses over them, as prescribed in the third section of this act; = shall=20 severally forfeit and pay to the United States the sum of two hundred = dollars=20 for each and every violation of, or neglect to conform to, the = provisions of=20 each of said sections; and fifty dollars for each and every neglect or = violation=20 of any of the provisions of the fifth section of this act; to be = recovered by=20 suit in any circuit or district court of the United States, within the=20 jurisdiction of which the said vessel may arrive, or from. which it may = be about=20 to depart, or at any place within the jurisdiction of such courts, = wherever the=20 owner orowners, or captain of such vessel, may be found.

16. - =A77. That the collector of the customs, at any port in the = United States=20 at which any vessel so employed shall arrive, or from which any such = vessel=20 shall be about to depart, shall appoint and direct one of the inspectors = of the=20 customs for such port to examine such vessel, and report in writing to = such=20 collector whether the provisions of the first, second, third and fifth = sections=20 of this act have been complied with in respect to such vessel; and if = such=20 report shall state such compliance, and be approved by such collector, = it shall=20 be deemed and held as conclusive evidence thereof.

17. - =A78. That the first section of the act entitled, "An act to = regulate the=20 carrying of passengers in merchant vessels," approved February = twenty-second,=20 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=20 be less than six feet, and not less than five feet, there shall be = allowed to=20 each passenger sixteen clear superficial feet on the deck, instead of = fourteen,=20 as prescribed in said section; and if the height or distance between the = decks=20 shall be less than five feet, there shall be allowed to each passenger=20 twenty-two clear superficial feet on the deck; and if the master of any = such=20 vessel shall take on board his vessel, in any port of the United States, = a=20 greater number of passengers than is allowed by this section, with the = intent=20 specified in said first section of the act of eighteen hundred and = forty-seven,=20 or if the master of any such vessel shall take on board at a foreign = port, and=20 bring within the jurisdiction of the United, States, a greater numher of = passengers than is allowed by this section, said master shall be deemed = guilty=20 of a misdemeanor, and upon conviction thereof shall be punished in the = manner=20 provided for the punishment of persons convicted of a violation of the = act=20 aforesaid; and in computing the number of passengers on board such = vessels, all=20 children under the age of one year, at the time of embarkation, shall be = excluded from such computation.

18. - =A79. That this act shall take effect, in respect to such = vessels sailing=20 from ports in the United States, in thirty days from the time of its = approval;=20 and in respect to every such vessel sailing from ports in Europe, in = sixty days=20 after such approval; and it is hereby made the duty of the secretary of = state to=20 give notice, in the ports of Europe, of this act, in such manner as he = may deem=20 proper.

19. - =A710. That so much of the first section of the act entitled " = An act=20 regulating passenger ships and vessels," approved March second, eighteen = hundred=20 and nineteen, or any other act that limits the number of passengers. to = two for=20 every five tons, is hereby repealed.

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

21. - =A72. That the act, entitled "An act to regulate the carriage = of passe=20 ngers in merchant vessels," approved February twenty-second, eighteen = hundred=20 and forty-seven, shall be so amended as that a vessel passing into or = through=20 the tropics shall be allowed to carry the same number of passengers as = vessels=20 that do not enter the tropics,

22. By act of January 31, 1848, Minot's Statutes at Large of United = States,=20 p. 210, it is enacted, That, from and after the passage of this act, all = and=20 every vessel and vessels which shall or may be employed by the American=20 Colonization Society, or by the Maryland State Colonization Society, to=20 transport, and which shall actually transport, from any port or ports in = the=20 United States to any colony or colonies on the west coast of Africa, = colored=20 emigrants to reside there, shall be, and the same are hereby, excepted = out of=20 and exempted from the operation of the act entitled " An act to regulate = the=20 carriage of passengers in merchant vessels," passed twenty-second = February,=20 eighteen hundred and forty-seven; and of the act. entitled " An act to = amend an=20 act entitled 'An act to regulate the carriage of passengers in merchant = vessels,=20 and to determine the time,' when said act shall take effect,"' passed, = second=20 March, eighteen hundred and forty-seven.

23. No deduction is to be made, in estimating, the number of = passengers in a=20 vessel, for children or persons not paying. Gilp. R. 334. For his rights = and=20 duties, vide Common Carriers.

PASTURES, pastures. The land on which beasts are fed; and by a = grant=20 of pastures the land itself passes. 1 Thorn. Co, Litt. 202.

PATENT, constrction. That which is open or manifest.

2. This word is usually applied to ambiguities which are said to be = latent,=20 or patent.

3. A patent ambiguity -is one which is produced by the uncertainty,=20 contradictoriness or deficiency of the language of an instrument, so = that no=20 discovery of facts or proof of declaration can restore the doubtful or = smothered=20 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,=20 different with regard to a patent abiguity, which cannot be explained by = parol=20 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=20 several sons, he shall not aver which was intended; for by judgment of = law upon=20 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=20 this subject. 2 Atk. 239.

5. This rule, which allows an explanation of latent ambiguities, and = which=20 forbids the use of parol evidence to explain a patent ambiguity, is = difficult of=20 application. It is attended, in some instances, with very minute nicety = of=20 discrimination, and becomes a little unsteady in its application. When a = bequest=20 is made " to Jones, son of, Jones," or " to Mrs. B," it is not easy to = show that=20 the ambiguity which this imperfect designation creates, is not ambiguity = arising=20 upon the face of the will, and as such, an ambiguity patent, yet parol = evidence=20 is admitted to ascertain the persons intended by those ambiguous terms. =

6. The principle upon which parol testimony is admitted in these = cases, is=20 probably, in the first of them, a presumption of possible ignorance in = the=20 testator of the christian name of the legatee; and in the second, a = similar=20 presumption of his being in the habit of calling the person by the name = of Mrs.=20 B. Presumptions, which being raised upon the face of the will, may be = confirmed=20 and explained by extrinsic evidence. Rob' on. Fr. 15, 27; 2 Vern. 624, = 5; 1=20 Vern. by Raithby, 31, note 2; 1 Rop. Leg. 147; 3 Stark. Ev. 1000; 3 Bro. = C. C.=20 311 2 Atk. 239; 3 Atk. 257; 3 Ves. Jr. 547. Vide articles Ambiguity; = Latent.=20

PATENT, contracts. A patent for an invention is a giant made = by the=20 government of the United States to the inventor of any new or useful = art,=20 machine, manufacture or composition of matter, or any new and useful = improvement=20 in any art, machine, manufacture or composition of matter not known or = used by=20 others before his or their discovery or invention thereof, and not, at = the time=20 of his application for a patent, in public use or on sale, with his = consent or=20 allowance, as the inventor or discoverer; securing to him for a limited = time,=20 therein expressed, the full and exclusive right and liberty of making,=20 constructing, using, and vending to others to be used, the said = invention or=20 discovery, on certain conditions, among which is the one of at once = giving up=20 his secret and making public his discovery or invention, and the manner = of=20 making and using the same, so that at the expiration of his privilege, = it may=20 become public property. The instrument securing this grant is also = called a=20 patent. The subject will be considered by taking a succint view of, 1. = The=20 legislation of the United States on the subject. 2. The patentee. 3. The = subject=20 to be patented. 4. The caveat and preliminary proceedings. 5. The = proceedings to=20 obtain a patent. 6. The patent. 7. The duty or tax on patents. 8. Courts = having=20 jurisdiction in patent cases. 9. Actions for violations of patents. = =A71.=20 Legislation of the United States. 2. The constitution of the United = States=20 authorizes congress to pass laws " to, promote the progress of science = and the=20 useful arts, by securing, for limited times, to authors and inventors, = the=20 exclusive right of their respective writings and discoveries." Art. 1, = s. 8, n.=20 8. By virtue of this authority congress can grant patents to inventors, = and it=20 rests in the sound, discretion of the legislature to say when, and for = what=20 length of time, and under what circumstances the patent for an invention = shall=20 be granted. Congress may, therefore, grant a patent which shall operate=20 retrospectively by securing to the inventor the use of his invention, = though it=20 was in public use and enjoyed by the community at the time this act was = passed .=20 3 Sumn. 535; 2 Story, R. 164. The first act passed under this power is = that=20 which established the patent office on the 10th of April, 1790, 1 Story, = L. U.=20 S. 80. There were several supplements and modifications to this first = law,=20 namely, the acts passed February 7, 1793, Idem, 300; June 7, 1794, Idem, = 363;=20 April 17, 1800, Idem, 753; July 3,1832, 4 Sharsw. cont. of Story, L. = U.S. 2300;=20 July 13, 1832, Idem, 2313.

3. These acts were repealed by the act of July 4, 1836, 4 Sharsw. = cont.=20 Story, L. U. S. 2504, which. enacts:

=A721. That all acts and parts of acts theretofore passed on this = subject be,=20 and the same are hereby repealed: Provided, however, That all actions = and=20 processes, in law or equity sued out prior to the passage of this act, = may be=20 prosecuted to final judgment and execution, in the same manner as though = this=20 act had not been passed, excepting and saving the application to any = such=20 action, of the provisions of the fourteenth and fifteenth sections of = this act,=20 so far as they maybe applicable thereto. And provided, also, That all=20 applications and petitions for patents, pending at the time of the = passage of=20 this act, in cases where the duty has been paid, shall be proceeded with = and=20 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,=20 already mentioned; the acts of March 3, 1837; Idem, 2546; March 3, 1839; = 9 Laws=20 U. S, 1019; August29,1842; ch. 263, Pamph. Laws, 171; May 27, 1848. = Minot's=20 Stat. at Large, U. S. 231. =A72. Of the patentee.

5. Any person or persons having discovered or invented the thing to = be=20 pa-tented, whether he be a citizen of the United States or an alien, is = entitled=20 to a patent on fulfilling the requirements of the law. Act of July 4, = 1836, s.=20 6.

6. By the 10th section of the same act it is provided, That where any = person=20 hath made, or shall have made, any new invention, discovery or = improvement, on=20 account of which a patent might by virtue of this act be granted, and, = such=20 person shall die before any patent shall be granted therefor, the right = of=20 applying for and obtaining such patent shall devolve on the executor or=20 administrator of such person, in trust for the heirs at, law of the = deceased, in=20 case he shall have died intestate; but if otherwise, then in trust for = his=20 devisees, in as full and ample manner, and under the same conditions,=20 limitations, and restrictions, as the same was held, or might have been = claimed=20 or enjoyed by such in his or her lifetime; and when application for a = patent=20 shall be made by such legal representatives, the oath or affirmation = provided in=20 the sixth section of this act, shall be so varied as to be applicable to = them.=20

7. And by the act of March 3, 1837, section 6, it is enacted, That = any patent=20 hereafter to be issued, may be made and issued to the assignee or = assignees of=20 the inventor or discoverer, the assignment thereof being first entered = of=20 record, and the application therefor being duly made, and the = specifications=20 duly sworn to by the inventor. And in all cases, hereafter, the = applicant for a=20 patent shall be held to furnish duplicate drawings, Whenever the case = admits of=20 drawings, one of which to be deposited in the office, and the other to = be=20 annexed to the patent, and considered a part of the specification.

=A73. The subject to be patented

8. Patents are granted, 1. For inventions and discoveries. 2. For=20 importations. 1. Patents for inventions and discoveries. By the act, of = July 4,=20 1836, sect. 6, it is enacted, that any person or persons having = discovered or=20 invented any new and useful art, machine,, manufacture, or composition = of=20 matter, or any new and useful improvement on any art, machine, = manufacture, or=20 composition of matter, not known or used by others before his or their = discovery=20 or invention thereof, and not, at the time of his application for a = patent, in=20 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=20 application in writing to the commissioner of patents, expressing such = desire,=20 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=20 and useful.

10. - 1. The invention or discovery must be something which the = inventor has=20 himself found out; some peculiar device or manner of producing any given = effect.=20 A patent cannot, therefore, be taken out for the elementary principles = of=20 motion, which philosophy and science have discovered, but only for the = manner of=20 applying them. 1 Gallis. 478; 2 Gallis. 51.

11. A patent may be taken out for an improvement on a machine which = is known=20 and used; 3 Wheat. 454; but a mere change of former proportions, will = not=20 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=20 original patentee shall be desirous of adding the description and = specification=20 of any new improvement of the original invention or discovery which = shall have=20 been invented or discovered by him subsequent to the date of his patent, = he may,=20 like proceedings being had in all respects as in the case of original=20 applications, and on the payment of fifteen dollars, as hereinbefore = provided,=20 have the same annexed to the original description and specification; and = the=20 commissioner shall certify, on the margin of such annexed description = and=20 specification, the time of its being annexed and recorded; and the same = shall=20 thereafter have the same effect in law, to all intents and purposes as = though it=20 had been embraced in the original description and specification.

13. And by the act of March 3, 1837, s. 8, that, whenever application = shall=20 be made to the commissioner for any addition of a newly discovered = improvement=20 to be made on an existing patent, or when ever a patent shall be = returned for=20 correction, and re-issue, the specification of claim annexed to every = such=20 patent shall be subject to revision and restriction, in the same manner = as are=20 original applications for patents; the commissioner, shall not add any = such=20 improvement to the patent in the one case, nor grant the re-issue in the = other=20 case, until the applicant shall have entered a disclaimer, or altered = his=20 specification of claim in accordance with the decision of the = commissioner; and=20 in all such cases the applicant, if dissatisfied with such decision, = shall have=20 the same remedy and be entitled to the benefit of the same privileges = and=20 proceedings as are provided by law in the case of original applications = for=20 patents.

14. - 2. The thing patented must be a new and useful invention, = discovery or=20 improvement.

15. Among inventors, he who is first in time, has a right to the = patent for=20 the invention. Pet. C. C. R. 394.

16. But by the act of March 3, 1839, sect. 7, it is provided, that = every=20 person or corporation who has, or shill have, purchased or constructed = any newly=20 invented machine, manufacture, or composition of matter, prior to the=20 application by the inventor or discoverer for a patent, shall be held to = possess=20 the right to use, and vend to others to be used, the specific machine,=20 manufacture, or composition of matter so made or purchased, without = liability=20 therefor to the inventor, or any other person interested in such = invention; ana=20 no patent shall be held to be invalid by reason of such purchase, sale, = or use,=20 prior to the application for a patent as aforesaid, except on proof of=20 abandonment of such invention to the public; or that such purchase, = sale, or=20 prior use has been for more than two years prior to such application for = a=20 patent.

17. By the term useful invention is meant an invention which may be = applied=20 to some beneficial use in society, in contradistinction to an invention = which is=20 injurious to morals, to the health, or good order of society. 1 Mason, = C. C. R.=20 302; 4 Wash. C. C; R. 9. The term is also opposed to that which is = frivolous or=20 mischievous. 1 Mason, C. C. R. 182; Renouard, 177; Perpigna, Man. des = Inv. c. 2,=20 s. 1, page 50. See 3 Car. & P. 502; 1 Pet. C. C. R. 480; 1 U. S. Law = Journ.=20 563; 1 Paine, 203; 2 Kent, Com. 368, Dr; Phill. on Pat. c. 7, s. 14. =

18. The act of August 29, 1842, sect, 3, provides that any citizen or = citizens, or alien or aliens, having resided, one year in the United = States, and=20 taken the oath of his or their intention to become a citizen or = citizens, who by=20 his, her, or their own industry, genius, efforts, and expense, may have = invented=20 or produced any new and original design for a manufacture, whether of = metal, or=20 other material or materials, or any new and original design for the = printing of=20 woolen, silk, cotton, or other fabrics, or any new and original design = for a=20 bust, statue, or has relief or composition in alto or basso relievo, or = any new=20 and original impression or ornament, or to be placed on any article of=20 manufacture, the same being formed in marble or other material, or any = new and=20 useful pattern, or print, or picture, to be either worked-into or worked = on, or=20 printed, or painted, or cast, or otherwise fixed on, any article of = manufacture,=20 or any new and original shape or configuration of ally article of = manufacture=20 not known or used by others before his, her, or their invention or = production=20 thereof, and prior to the time of his, her, or their application for a = patent=20 therefor, and who shall desire or obtain an exclusive Property or right = therein=20 to make, use, and sell and vend. the same, or copies of the same, to = others, by=20 them, made, used, and sold, may make application in writing to the = commissioner=20 of patents, expressing such desire, and the commissioner, on due = proceedings=20 had, may grant a patent therefor, as in the case. now of application for = a=20 patent: Provided, That the fee in such cases which by the now existing = laws=20 would be required of the particular applicant shall be one-half the sum, = and=20 that the duration of said patent shall be seven years, and that all the=20 regulations and provisions which now apply to the obtaining or = protection of=20 patents not inconsistent with the provision's of this act, shall apply = to=20 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=20 debarred from receiving a patent for any invention or discovery, as = provided in=20 the act approved on the fourth day of July, one thousand eight hundred = and=20 thirty-six, to which this is additional, by reason of the same having = been=20 patented in, a foreign country, more than six months prior to his = application:=20 Provided, That the same shall not have been introduced into public and = common=20 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=20 of fourteen years from the date or publication of such foreign = letters-patent.=20 20. And by the act of July 4, 1836, s. 8, it is provided, that nothing = in this=20 act contained shall be, construed to deprive an origisal and true = inventor of=20 the right to a patent for his invention, by reason of his having = previously=20 taken out letters-patent therefor in a foreign country, and the same = having been=20 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=20 States, or alien who have been resident in the United States one year = next=20 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,=20 and shall desire further time to mature the same, may, on paying to the = credit=20 of the treasury, in manner as provided in the ninth section of this act, = the sum=20 of twenty dollars, file in the patent office a caveat, setting forth the = design=20 and purpose thereof, and its principal and distinguishing = characteristics, and=20 praying protection of his right, till he shall have matured his = invention -=20 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=20 considered a part of the sum herein required for the same. And such = caveat shall=20 be filed in the confidential archives of the office, and preserved in = secrecy.=20 And if application shall be made by any other person within one year = from the=20 time of filing such caveat, for a patent of any invention with which it = may in=20 any respect interfere, it shall be the duty of the commissioner to = deposit the=20 description, specifications, drawings, and model, in the confidential = archives=20 of the office, and to give notice, by mail, to the person filing the = caveat, of=20 such application, who shall, within three months after receiving the = notice, if=20 he would avail himself of the benfit of his caveat, file his = description,=20 specifications, drawings, and model: and if, in the opinion of the = commissioner,=20 the specifications of claim interfere with each other, like = proceeding& may=20 be had in all respects as are in this act provided in the case of = interfering=20 applications: Provided, however, That no opinion or decision of any = board of=20 examiners, under the provisions of this act, shall preclude any person=20 interested in favor of or against the validity of any patent which has = been or=20 may hereafter be granted, from the right to contest the same in any = judicial=20 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=20 request it, the patent shall take date from the time of the filing of = the=20 specification and drawings, not however, exceeding six mouths prior to = the=20 actual issuing of the patent; and on like request, and the payment of = the duty=20 herein required, by any applicant, his specification and drawings shall = be filed=20 in the secret archives of the office, until he shall furnish the model = and the=20 patent be issued, not exceeding the term of one year, the applicant = being=20 entitled to notice of interfering application.

=A75. Of the proceedings to obtain a patent.

23 . This section will be divided by considering the proceedings when = there=20 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=20 inventor shall receive a patent for any such new invention or discovery, = he=20 shall deliver a written description of his invention or discovery, and = of the=20 manner and process of making, constructing, using, and compounding the = same, in=20 such full, clear, and exact terms, avoiding unnecessary prolixity, as to = enable=20 any person skilled in the art or science to which it appertains, or with = which=20 it is most nearly connected, to make, construct, compound, and use the = same; and=20 in case of any machine, he shall fully explain the principle and the = several=20 modes in which he has contemplated the application of that principle or=20 character by which it may be distiguished from other inventions and = shall=20 particularly specify and point out the part, improvement, or = combination, which=20 he claims as his own invention or discovery. He shall, furthermore, = accompany=20 the whole with a drawing, or drawings, and written references, where the = nature=20 of the case admits of drawings, or with specimens of ingredients, and of = the=20 composition of matter, sufficient in quantity for the purpose of = experiment,=20 where the invention or discovery is of a composition of matter; which=20 descriptions and drawings, signed by the inventor and attested by two = witnesses;=20 shall be filed in the patent office; and be shall, moreover, furnish a = model of=20 his invention, in all cases which admit of a representation by model, of = a=20 convenient size to exhibit advantageously its several parts. The = applicant shall=20 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=20 improvement, for which he solicits a patent, and that he does not know = or=20 believe that the same was ever known or used; and also of what country = he is a=20 citizen; which oath or affirmation may, be made before any person = authorized by=20 law to administer oaths.

25. The fourth section of the act of August 29, 1842, provides that = the oath=20 required for applicants for patents, may be taken, when the applicant is = not,=20 for the time being, residing in the United States, before any minister=20 pleni-potentiary, charge d affaires; consul, or commercial agent, = holding a=20 commission under the government of the United States, or before any = notary=20 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=20 which an oath is required by this act, or by the act to which this is=20 additional, if the person of whom it is required shall be = conscientiously=20 scru-pulous of taking an oath, affirmation may be substituted therefor. =

27. The seventh section of the act of July 4, 1836, further enacts, = that on=20 the filing of any such application, description, and specification, and = the=20 payment of the duty hereinafter provided, the commissioner shall make or = cause=20 to be made, an examination of the alleged new invention or discovery; = and if, on=20 any such examination, it shall not appear to the commissioner that the = same had=20 been invented or discovered by any other person in this country prior to = the=20 alleged invention or discovery thereof by the applicant, or that it had = been=20 patented or described in any printed publication in this or any foreign = country,=20 or had been in public use or on sale with the applicant's consent or = allowance=20 prior to the application, if the commissioner shall deem it to be = sufficiently=20 useful and important, it shall be his duty to issue a patent therefor. = But=20 whenever on such examination it shall appear to the commissioner that = the=20 applicant wag not the original and first inventor or discoverer thereof, = or that=20 any part of that which is claimed as new had before been invented or = discovered,=20 or patented, or described in any printed, publication in this or any = foreign=20 country, as aforesaid, or that the description is defective and = insufficient, he=20 shall notify the applicant thereof, giving him, briefly, such = information and,=20 references as may be useful in judging of the propriety of renewing his=20 application, or of altering his specification to embrace only that part = of the=20 invention or discovery which is new. In every such case, if the = applicant shall=20 elect to withdraw his application, relinquishing his claim to the model, = he=20 shall be entitled to receive back twenty dollars part of the duty = required by=20 this act, on filing a notice in writing of such election in the patent = office, a=20 copy of which, certified by the commissioner, shall be a sufficient = warrant to=20 the treasurer for paying back to said applicant the said sum of twenty = dollars.=20 But if the said applicant in such case shall persist in his claim for a = patent,=20 with or without any alteration of his specification, he shall be = required to=20 make oath or affirmation anew in manner as aforesaid. And if the = specification=20 and claim shall not have been so modified as in the opinion of the = commissioner,=20 shall entitle the applicant to a patent, he may, on appeal, and upon = request in=20 writing, have the decision of the board of examiners, to be composed of = three=20 disinterested persons, who shall be appointed for that purpose by the = secretary=20 of state, one of whom at least, to be selected, if practicable and = convenient,=20 for his knowledge and skill in the particular art, manufacture, or = branch of=20 science to which the alleged invention appertains; who shall be under = oath or=20 affirmation for the faithful and impartial performance of the duty = imposed upon=20 them by said appointment. Said board shall be furnished with a = certificate in=20 writing, of the opinion and decision of the commissioner, stating the = particular=20 grounds of his objection, and the part or parts of the invention which = he=20 considers as not entitled to be patented. And the same board shall give=20 reasonable notice to the applicant, as well as to the commissioner of = the time=20 and place of their meeting; that they may have an opportunity of = furnishing them=20 with such facts and evidence as they may deem necessary to. a just = decision; and=20 it shall be the duty of the commissioner to furnish to the board of = examiners=20 such information as he may possess relative to the matter under their=20 consideration. And on an examination and consideration of the matter by = such=20 board, it shall be in their power, or of a majority of them, to reverse = the=20 decision of the commissioner, either in whole or in part; and their = opinion=20 being certified to the commissioner, he shall be governed therby, in the = further=20 proceedings to be had on such application: Provided, however, That = before a=20 board shall be instituted in any such case, the applicant shall pay to = the=20 credit of the treasury, as provided in the ninth section of this act, = (see 47,)=20 the sum of twenty-five dollars, and each of said persons so appointed = shall be=20 entitled to receive for his services in each case, a sum not exceeding = ten=20 dollars, to be determined and paid by the commissioner out of any moneys = in his=20 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=20 patents is vested with power to make all such regulation's in respect to = the=20 taking of evidence to be used in contested leases before him, as may be = just and=20 reasonable and so much of the act of July 4, 1836, as provides for a = board of=20 examiners, is thereby repealed.

29. And by the same act, sect. 11, it is provided, that in all cases = where an=20 appeal is now. allowed by law from the decision of the commissioner of = patents=20 to a board of examiners provided for in the seventh section of the act = to which=20 this is additional, the party, instead thereof, shall have a right to = appeal to=20 the chief justice of the district court of the United States for the = district of=20 Columbia, by giving notice thereof to the commissioner, and filing in = the patent=20 office, within such time as the commissioner shall appoint, his reasons = of=20 appeal, specifically set forth in writing, and also paying into the = patent=20 office, to the credit of the patent fund, the sum of twenty-five = dollars. And it=20 shall be the. duty of said chief justice, on petition, to hear and = determine all=20 such appeals, and to revise such decisions in a summary manner, on the = evidence=20 produced before the commissioner, at such early and convenient time as = he may=20 appoint, first notifying the commissioner of the time and place of = hearing,=20 whose duty it shall be to give notice thereof to all parties who appear = to be=20 interested therein, in such manner as said judge shall prescribe. The=20 commissioner shall also lay before the said judge all the original = papers and=20 evidence in the case, together with the grounds of his decision, fully = set forth=20 in writing, touching all the points involved by the reasons of appeal, = to which=20 the revision shall be confined. And at the request of any party = interested, or=20 at the desire of the judge, the commissioner and the examiners in the = patent=20 office, may be examined under oath, in explanation of the principles of = the=20 machine, or other thing for which a patent, in such case, is prayed for. = And it=20 shall be the duty of said judge after a hearing of any such case, to = return all=20 the papers to the commissioner, with a certificate of his proce edings = and=20 decision, which shall be entered of record in the patent office; land = such=20 decision, so certified, shall govern the further proceedings of the = commissioner=20 in such case, Provided, however, That no opinion or decision of the = judge in any=20 such case, shall preclude any person interested in favor or against the = validity=20 of any patent, which has been or way hereafter be granted, from the = right to=20 contest the same in any judicial court, in any action in which its = validity may=20 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=20 commissioner, would interfore with any other patent for which an = application may=20 be pending, or with any unexpired patent which shall have been granted, = it shall=20 be the duty of the commissioner to give notice thereof to such = appli-cants or=20 patentees; as the case maybe; and if either shall be dissatisfied with = the=20 decision of the commissioner on the question of priority, right or = invention, on=20 a hearing thereof, he may appeal from such decision, on the like terms = and=20 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=20 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=20 interfering patents, or whenever a patent on application shall have been = refused=20 on an adverse decision of a board of examiners, on the ground that the = patent=20 applied for would interfere with an unexpired patent previously granted, = any=20 person interested in any such patent, either by assignment or otherwise, = in the=20 one case, and any such applicant in the other, may have remedy by bill = in=20 equity; and the court having cognizance thereof, on notice to adverse = parties=20 and other due proceedings had, may adjudge and declare either the = patents void=20 in whole or in part, or inoperative and invalid in any particular part = or=20 portion of the United States, according to the interest which the = parties in=20 such suit may possess in the patent or the inventions patented, and may = also=20 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=20 specified in his claim, or for any part thereof, as the fact of priority = of=20 right or invention shall in any such case be made to appear. And such=20 adjudication, if it be in favor of the right of such applicant, shall = authorize=20 the Commissioner to issue such patent, on his filing a copy of the = adjudication,=20 and otherwise complying with the requisitions of this act. Provided, = however,=20 that no such judgment or adjudication shall affect the rights of any = persons=20 except the parties to the action and those deriving title from or under = them=20 subsequent to the rendition of such judgment. And the commissioner is = vested by=20 the 12th section of the act of March 3, 1839, with powers to make such = rules and=20 regulations in respect to the taking of evidence to be used in contested = cases=20 before him, as may be just and reasonable.

32. The act of March 3, 1839, section 10, provides, that the = provisions of=20 the sixteenth section of the before recited act shall extend to all = cases where=20 the patents are refused for any reason whatever, either by the = commissioner of=20 patents or by the chief justice of the district of Columbia, upon = appeals from=20 the decision of said commissioner, as well as where the same shall have = been=20 refused on account of, or by reason of interference with a previously = existing=20 patent; and in all cases where there is ne opposing party, a copy of the = bill=20 shall be served upon the commissioner of patents, when the whole of the = expenses=20 of the proceeding shall be paid by the applicant, whether the final = decision=20 shall be in his favor or otherwise.

=A76. Of the patent.

33. This section will be divided by considering, 1. The form of the = patent.=20 2. The correction of the patent. 3. The special provisions of the acts = of=20 congress occasioned by the burning of the patent office. 4. The = disclaimer. 5.=20 The assignment of patents. 6. The extension of the patent. 7. The = requisites to=20 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.=20 The fifth section of the act of July 4, 1836, directs, that all patents = issuing=20 from said office shall be issued in the name of the United States, and = under the=20 seal of said office, and be signed by the secretary of state, and = countersigned=20 by the commissioner of the said office, and shall be recorded, together = with the=20 descriptions, specifications and drawings, in the said office, in books = to be=20 kept for that purpose. Every such patent shall contain a short = description or=20 title of the invention or discovery, correctly indicating its nature and = design,=20 and in its terms grant to the applicant or applicants, his or their = heirs,=20 administrators, executors or assigns, for a term not exceeding fourteen = years,=20 the full and exclusive right and liberty of making, using, and vending = to others=20 to be used, the said invention or discovery, referring to the = specifications for=20 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=20 dated at the time of issuing it, but by a provision of the last = mentioned act,=20 section 8, whenever the applicant shall request it, the patent shall = take date,=20 from the time of filing, the specification and drawings, not, however, = exceeding=20 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,=20 that whenever any patent which has heretofore been granted, or which = shall=20 hereafter be granted, shall be inoperative or invalid, by reason of a = defective=20 or insufficient description or specification, or by reason of the = patentee=20 claiming in his specification as his own invention, more than he had or = shall=20 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=20 intention, it shall be lawful for the c6mmissioner, upon the surrender = to him of=20 such patent, and the payment of the further duty of fifteen dollars, to = cause a=20 new patent to be issued to the said inventor, for the same invention, = for the=20 residue of the period then unexpired for which the original patent was = granted,=20 in accordance with the patentee's corrected description and = specification. And=20 in the event of his death, or any assignment by him made of the original = patent,=20 a similar right shall vest in his executors, administrators, or = assignees. And=20 the patent, so reissued, together with the corrected description and=20 specification, shall have the same effect and operation in law, on the = trial of=20 all actions, hereafter commenced for causes subsequently accruing, as = though the=20 same had been originally filed in such corrected form, before the = issuing out of=20 the original patent. And whenever the original patentee shall be = desirous of=20 adding the description and specification of any new improvement of the = original=20 invention or discovery which shall have been invented or discovered by = him=20 subsequent to the date of his patent, he may, like proceedings being had = in all=20 respects as in the case of original applications, and on the payment of = fifteen=20 dollars, as hereinbefore provided, have the same annexed to the original = description and specification; and, the commissioner shall certify, on = the=20 margin of such annexed description and specification, the time of its = being=20 annexed and recorded; and the same shall thereafter have the same effect = in law,=20 to all intents and purposes, as though it had been embraced in the = original=20 description and specification.

36. And it is enacted by the act of March 3, 1837, section 5, that, = whenever=20 a patent shall be returned for correction and reissue under the = thirteenth=20 section of the act to which this is additional, and the patentee shall = desire=20 several patents to be issued for distinct and separate parts of the = thing=20 patented, he shall first pay, in manner and in addition to the sum = provided by=20 that act, the sum of thirty dollars for each additional patent so to be = issued;=20 Provided, however, that no patent made prior to the aforesaid fif-teenth = day of=20 December, 1836, shall be corrected and reissued until a duplicate of the = model=20 and drawing of the thing as originally invented, verified by oath as = shall be=20 required by the commissioner, shall be deposited in the patent office: = Nor shall=20 any addition of an improvement be made to any patent heretofore granted, = nor any=20 new patent to be issued for an improvement made in any machine, = manufacture, or=20 process, to the original inventor, assignee or possessor, of a patent = therefor,=20 nor any disclaimer be admitted to record, until a duplicate model and = drawing of=20 the thing originally intended, verified as aforesaid, shall have been = deposited=20 in the patent office, if the commissioner shall require the same; nor = shall any=20 patent be granted for an invention, improvement, or discovery, the model = or=20 drawing of which shall have been lost, until another model and drawing, = if=20 required by the commissioner, shall, in like manner, be deposited in the = patent=20 office:

37. And in all such cases, as well as in those which may arise under = the=20 third section of this act, the question of compensation for such models = and=20 drawings, shall be subject to the judgment and decision of the = commissioners=20 provided for in the fourth section, under the same limitations and = restrictions=20 as are therein prescribed.

3. Special provisions occasioned by the burning the patent = office.=20

38. The act of March 3, 1837, was passed to remedy the inconveniences = arising=20 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=20 interested in, any patent for an invention, disocovery, or improvement, = issued=20 prior to the fifteenth day of December, in the year of our Lord one = thosand=20 eight hundred and thirty-six, or in an assignment of any patent, or = interest=20 therein, executed, and recorded prior to the said fifteenth day of = December,=20 may, without charge, on presentation or transmission thereof to the = commissioner=20 of patents, have the same recorded anew in the patent office, together = with the=20 descriptions, specifications of claim and drawings annexed or belonging = to the=20 same; and it shall be the duty of the commisioner to cause the same, or = any=20 authenticated copy of the original record, specification, or drawing = which he=20 may obtain, to be transcribed and copied into books of record to be kept = for=20 that purpose; and wherever a drawing was not originally annexed to the = patent=20 and referred to in the specification and drawing produced as a = delineation of=20 the invention, being verified by oath in such manner as the commissioner = shall=20 require, may be transmitted and placed on file, or copied as aforesaid, = together=20 with the certificate of the oath; or such drawings may be made in the = office,=20 under the direction of the commisioner, in conformity with the = specification.=20 And it shall be the duty of the commissioner to take such measures as = may be=20 advised and determined by the board commissioners provided for by the = fourth=20 section, of this act, to obtain the patents, specifications, and copies=20 aforesaid, for the purpose of being so transcribed and recorded. And it = shall be=20 the duty of each of the several clerks of the judicial courts of the = United=20 States, to transmit, as soon as may be, to the commissioner of the = patent=20 office, a statement of all the authenticated copies of patents, = descriptions,=20 specifications, and drawings of inventions and discoveries made and = executed=20 prior to the aforesaid fifteenth day of December, which may be found on = the=20 files of his office; and also to make out and transmit to said = commissioner for=20 record as aforesaid, a certified copy of every such patent, description, = specification, or drawing, which shall be specially required by such=20 commissioner.

40. - Sect. 2. That copies of such record and drawings, certified by = the=20 commissioner, or, in his absence, by the chief clerk, shall be prima = facie=20 evidence of the particulars of the invention and of the patent granted=20 therefore, in any judicial court of the United States, in all cases = where copies=20 of the original record or specification and drawings would be evidence, = without=20 proof of the loss of such originals and no patent issued therefor by the = patentee or other person inprior to the aforesaid, fifteenth day of = December,=20 shall, after the first day of June next, be received in evidence in, any = of the=20 said courts in behalf of the patentee or other person who shall be in = possession=20 of the same, unless it shall have been so recorded anew, and a drawing = of the=20 invention, if separate from the patent, verified as, aforesaid, = deposited in the=20 patent office; nor shall any written assignment of any such patent, = executed=20 and, recorded prior to the said fifteenth day of December, be received = in=20 evidence in any of the said courts in behalf of the assignee or other = person in=20 possession thereof, until it shall have been so recorded anew.

41. - Sect. 3. That whenever it shall appear to the commissioner that = any=20 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=20 shall be his duty, on application terested therein, to issue a new = patent for=20 the same invention or discovery bearing the date of the original patent, = with=20 his certificate thereon that it was made and issued pursuant to the = provisions=20 of the third section of this act, and shall enter the same of record: = Provided,=20 however, That before such patent shall be issued, the applicant therefor = shall=20 deposit in the patent office a duplicate, as near as may be, of the = original=20 model, drawings, and description, with specification of the invention or = discovery, verified by oath, as shall be required by the commissioner; = and such=20 patent and copies of such drawings and descriptions, duly certified, = shall be=20 admissible as evidence in any judicial court of the United States, and = shall=20 protect the rights of the patentee, his administrators, heirs and = assigns, to=20 the extent only in which they would have been protected by the original = patent=20 and specification.

42. The act of August 29, 1842, sect. 2, extends the provisions of = the last=20 section to patents granted prior to the said fifteenth day of December, = though=20 they may have been lost subsequently; provided, however, the same shall = not have=20 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,=20 through inadvertence, accident, or mistake, made his specification of = claim too=20 broad, claiming more than that of which he was the original or first = inventor,=20 some material and substantial part of the thing patented being truly and = justly=20 his own, any such patentee, his administrators, executors, and assigns, = whether=20 of the, whole or of a sectional interest therein, may make disclaimer of = such=20 parts of the thing patented as the disclaimant shall not claim to hold = by virtue=20 of the patent or assignment, stating therein the extent of his interest = in, such=20 patent; which disclaimer shall be in writing, attested by one or more = witnesses,=20 and recorded in the patent office, on payment by the person disclaiming, = in=20 manner as, other patent duties are required by law to be paid, of the = sum of ten=20 dollars. And such disclaimer shall thereafter be taken and considered as = part of=20 the originals specification, to the extent of the interest which shall = be=20 possessed in the patent or right secured thereby, by the disclaimant, = and by=20 those claiming by or under him subsequent to the record thereof. But no = such=20 disclaimer shall affect any action pending at the time of its being = filed,=20 except so far as may relate to the question of unreasonable neglect or = delay in=20 filing the same.

5. Assignment of patents.

44. By virtue of the act of July 4, 1836, sect. 11, every-patent = shall be=20 assignable in law, either as to the whole interest, or, any undivided = part=20 thereof, by any instrument in writing; which assignment, and also every = grant=20 and conveyance of the exclusive right under any patent, to make and use, = and to=20 grant to others to make and use, the thing patented within and = throughout any,=20 specified part or portion of the United States, shall be recorded in the = patent=20 office within three months from the execution thereof. This act required = the=20 payment of a fee of three dollars to be paid by the assignee, but this = provison=20 has been repealed by the act of March 3, 1839, s. 8, and such = assignments,=20 grants, and conveyances, shall, in future, be recorded without any = charge=20 whatever. But, by the act of May 27, 1848, Minot's. Stat. at Large, U. = S. 231,=20 it is enacted, That hereafter the commissioner of patents shall require = a fee of=20 one dollar for recording any assignment, grant or conveyance, of the, = whole or=20 any part of the interest in letters-patent, or power of attorney, or = license to=20 make or use the things patented, when such instrument shall not exceed = three=20 hundred words; the sum of two dollars when it shall exceed three = hundred, and=20 shall not exceed one thousand words and the sum of three dollars when it = shall=20 exceed one thousand words; which fees shall in all cases be paid in = advance.=20

6. The extension of the patent.

45. The act of July. 4, 1836, sect. 18; directs, That whenever any = patentee=20 of an invention or discovery shall desire an extension of his patent = beyond the=20 term of its limitation, be may make application therefor, in writing, to = the=20 commissioner of the patent office, setting forth the grounds thereof, = and the=20 commissioner shall, on the applicant's paying the sum of forty dollars = to the=20 treasury, as in the case of an original application, for a patent, cause = to be=20 published, in one or more of the principal newspapers in the city of = Washington,=20 and in such other paper or papers as he may deem proper, published in = the=20 section of country most interested adversely to the extension of the = patent, a=20 notice of such application and of the time and place when and where the = same=20 will be considered, that any, person may appear and show cause why the = extension=20 should not be granted. And the secretary of state, the commissioner of = the=20 patent office, and the solicitor of, the treasury, shall constitute a = board to=20 hear and decide upon the evidence produced before them both for and = against the=20 extension, and shall sit for that purpose at the time and place = designated in=20 the published notice thereof. The patentee shall furnish to said board a = statement, in writing, under oath, of the ascertained value of, the = invention,=20 and of his receipts and expenditures, sufficiently in detail to exhibit = a true=20 and faithful account of loss and profit in any manner accruing to him = from and=20 by reason of said invention. And if, upon a hearing of the matter, it = shall=20 appear to the full and entire satisfaction of said board, having due = regard to=20 the public interest therein, that it is just and proper that. the term = of the=20 patent should be extended by reason of the patentee, without neglect or = fault on=20 his part, having failed to obtain, from the use and sale of his = invention, a=20 reasonable remuneration for the time, ingenuity and expense bestowed = upon the=20 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=20 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=20 office; and thereupon the said patent shall have the same effect in law = as=20 though it had been originally granted for the term of twenty-one years. = And the=20 benefit of such, renewal shall extend to assignees and grantees of the = right to=20 use the thing patented, to the extent of their respective interest = therein:=20 Provided, however, That no extension of a patent shall be granted after = the=20 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=20 and assingees of patents hereafter granted, are hereby required to = stamp,=20 engrave, or cause to be stamped or engraved, on each article vended, or = offered=20 for sale, the date of the patent; and if any person or persons, = patentees, or=20 assignees, shall neglect to do so, he, she, or they, shall be liable to = the same=20 penalty, to be recovered and disposed of in the manner specified in the=20 foregoing fifth section of this act. See 49.

=A77. Duty or tax on patents.

47. The tax or duty on patents is not the same in all cases, = foreigners being=20 required to pay a greater sum than citizens, and the subjects of the = king of=20 Great Britain a greater sum than other foreigners. The ninth section of = the act=20 of July 4, 1836, requires, That before any application for a patent can = be=20 considered by the commissioner as aforesaid, the applicant shall pay = into the=20 treasury of the United States, or into the patent office, or into any of = the=20 deposit banks to the credit of the treasury, if he be a citizen of the = United=20 States, or an alien, and shall have been resident in the United States = for one=20 year next preceding, and shall have made oath of his intention to become = a=20 citizen thereof, the sum of thirty dollars; if a subject of the king of = Great=20 Britain, the sum of five hundred dol1ars; and all other persons the sum = of three=20 hundred dollars, for which payment duplicate receipts shall be taken, = one of=20 which to be filed in the office of the treasurer. And the moneys = received into=20 the treasury under this act, shall constitute a fund for the payment of = the=20 salaries of the officers and clerks herein provided for, and all other = expenses=20 of the patent office, and to be called the patent fund.

48. When an applicant withdraws his application before the issuing of = the=20 patent, he is entitled to receive back twenty dollars of the sum he may = have=20 paid into the treasury. Act of July 4, 1836, sect. 7. And the act of = March 3,=20 1837, section 12, enacts, That whenever the application of any foreigner = for a=20 patent shall be rejected and withdrawn for want of novelty in the = invention,=20 pursuant to the seventh, section of the act to which this is additional, = the=20 certificate thereof of the commissioner shall be a sufficient warrant to = the=20 treasurer to pay back to such applicant two-thirds of the duty he shall = have=20 paid into the treasury on account of such application. When money has = been paid=20 by mistake, as for foes accruing at the patent office, it must, by the = direction=20 of the act of August 29, 1842, section 1, be refunded.

=A78. Penalty for use of patentee's marks.

49. The act of August 29, 1842, s. 5, declares, That if any person or = persons=20 shall paint or print, or mould, cast, carve, or engrave, or stamp, upon = any=20 thing made, used, or sold, by him, for the sole making or selling which = he hath=20 not or shall not have obtained letters-patent, the name or any imitation = of the=20 namer of any other person who hath or shall have obtained letters-patent = for the=20 sole making and vending of such thing, without consent of such patentee = or his=20 assigns or legal representatives; or if any person, upon any such thing = not=20 having been purchased from the patentee, or some person who purchased it = from or=20 under such patentee, or not having the license or consent of such = patentee, or=20 his assigns or legal representatives, shall write paint, print, mould, = carve,=20 engrave, stamp, or otherwise make or affix the word "patent," or the = words=20 "letters-patent," or the word "patentee," or any word or words of like = kind,=20 meaning, or import, with the view or intent of imitating or = counterfeiting the=20 stamp, mark, or other device of the patentee, or shall affix the same or = any=20 word, stamp, or device, of like import, on any unpatented article, for = the=20 purpose of deceiving the public, he, she, or they, so offending, shall = be liable=20 for such offence, to a penalty of not less than one hundred dollars, = with costs,=20 to be recovered by action in any of the circuit courts of the United = States, or=20 in any of the district courts of the United States, having the powers = and=20 jurisdiction of a circuit court; one-half of which penalty, as = recovered, shall=20 be paid to the patent fund, and the other half to any person or persons = who=20 shall sue for the same.

=A79. Courts having jurisdiction in patent cases.

50. It is enacted by the 17th section of the act of July 4, 1836, = That all=20 actions, suits, controversies, and cases arising under any law of the = United=20 States, granting or confirming to inventors the exclusive right to their = inventions or. discoveries, shall be originally cognizable, as well in = equity as=20 at law, by the circuit courts of the United States, or any district = court having=20 the powers and jurisdiction of a circuit court which courts shall have = power,=20 upon bill in equity filed by any party aggrieved, in any such case, to = grant=20 injunctions, according to the course and principles of courts of equity, = to=20 prevent the violation of the rights of any inventor as secured to him by = any law=20 of the United States on such terms and conditions as said courts may = deem=20 reasonable: Provided, however, That from all judgments and decrees, = from. any,=20 such court rendered in the premises, a writ of error or appeal, as the = case may=20 require, shall lie to the supreme court of the United States, in the = same manner=20 and under the same circumstances as is now Provided by law in other = judgments=20 and decree, of circuit courts, and in all other case's in which the = court shall=20 deem, it reasonable to allow the same.

=A710. Actions for violation of patent rights.

51. The act of July 4, 1836, section 14, provides, That whenever in = any=20 action for damages for making, using, or selling the thing whereof the = exclusive=20 right is secured by any patent heretofore granted, or by any patent = which may=20 hereafter be granted, a verdict shall be rendered for the plaintiff in = such=20 action, it shall be in the power of the court to render judgment for any = sum=20 above the amount found by such verdict as the actual damages sustained = by the=20 plaintiff, not exceeding three times the amount thereof, according to = the=20 circumstances of the case, with costs; and such damages may be recovered = by=20 action on the case, in any court of competent jurisdiction, to be = brought in the=20 name or names of the person or persons interested, whether as patentee,=20 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=20 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=20 attorney, thiry days before trial, tending to prove that the description = and=20 specification filed by plaintiff does not contain the whole truth = relative to=20 his invention or discovery, or that it contains more than is necessary = to=20 produce the described effect; which concealment or addition shall fully = appear=20 to have, been made for the purpose of deceiving the public, or that the = patentee=20 was not, the original and first inventor or discoverer of the thing = patented, or=20 of a substantial and miaterial art thereof claimed as new, or that it = had teen=20 described in some public work anterior to the supposed discovery thereof = by the=20 patentee, or had been in public use, or on sale with the consent and = allowance=20 of the patentee before his application for a patent, or that, he had=20 surreptitiously or unjustly obtained the patent for that which was in = fact=20 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=20 the patent was grauted, had failed and neglected for the space of = eighteen=20 months from the date of the patent, to put and continue on sale to the = public,=20 on reasonable terms, the invention or discovery for which the patent = issued; in=20 either of which cases judgment shall be rendered for the defendant, with = costs.=20 And whenever the defendant relies in his defence on the fact of a = previous=20 invention, knowledge, or use of the thing patented, be shall state, in = his=20 notice of special matter, the names and places of residence of those = whom he=20 intends to prove to have possessed a prior knowledge of the thing and = where the=20 same had been used: Provided, however, that whenever it shall = satisfactorily=20 appear that the patentee, at the time of making his application for the = patent,=20 believed himself to be the first inventor or discoverer of the thing = patented=20 the same shall not be held to be void on account of the invention or = discovery=20 or any part thereof having been before known or used in any foreign = country, it=20 not appearing that the same or any substantial part thereof, had before = been=20 patented or described in any printed publication. And provided, also, = that=20 whenever the plaintiff shall fail to sustain his action on the ground = that in=20 his specification of claim is embraced more than that of which he was = the first=20 inventor, if it shall appear that the defendant had used or violated any = part of=20 the invention justly and truly specified and claimed as new, it shall be = in the=20 power of the court to adjudge and award as to costs as may appear to be = just and=20 equitable.

53. This last section has been modified by the act of March 3, 1837, = which=20 enacts as follows: Section 9, That anything in the fifteenth section of = the act=20 to which this is additional to the contrary notwithstanding That, = whenever by=20 mistake, accident, or inadvertence, and without any wilful default or = intent to=20 defraud or mislead the public, any patentee shall have in his = specification=20 claimed to be the original and first inventor or discoverer of any = material or=20 substantial part of the thing patented, of which he was not the first = and=20 original inventor, and shall have no legal or just right to claim the = same in=20 every such, case the patent shall be deemed good and valid for so much = of the=20 invention or discovery as shall be truly and bona fide his own: = Provided, it=20 shall be a material and substantial part of the thing patented, and be=20 definitely distinguishable from the other parts so claimed without right = as=20 aforesaid. And every such patentee, his executors, administrators and = assigns,=20 whether of the whole or of a sectional interest therein, shall be = entitled to=20 maintain a suit at law or in equity on such patent for any infringement = of such=20 part of the invention or, discovery as shall be bona fide his own as = aforesaid,=20 notwithstanding the specification may embrace more than he shall have = any legal=20 right to claim. But, in every such case in which a judgment or verdict = shall be=20 rendered for the plaintiff he shall not be entitled to recover costs = against the=20 defendant, unless he shall have entered at the patent office, prior to = the=20 commencement of the suit, a disclaimer of all that part of the thing = patented=20 which were so claimed without right: Provided, however, That no person = bringing=20 any such suit shall be entitled to the benefits of the provisions = contained in=20 this section, who shall have unreasonably neglected or delayed to enter = at the=20 patent office a disclaimer as aforesaid. See Bac. Ab. Monopoly Id. = Prerogative,=20 F 4; Phill. on Pat.; Fessend. on Pat.; Carpm. on Pat.; Hand on Pat.; = Webst. on=20 Pat; Coll. on Pat.; Gods. on Pat.; Holr. on Pat.; Smith on Pat.; = Drewry's Patent=20 Law Abandonment Act; Davies' Collection of Cases on the Law of Patents; = Rankin's=20 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=20 the works of Renouard, Dalloz, Molard, and Regnault. See the various = Digests h.=20 t. and particularly Peters' Digest, h. t.

PATENT FRENCH. The following points in relation to the patent = laws of=20 France will be found useful to those who have invented valuable = machinery, and=20 who are desirous of availing themselves of the patent laws of that = country: -=20

27 - =A71. To whom patents are granted. All persons may obtain = patents in this=20 country, whether they are men or women, adults or infants, Frenchmen or=20 foreigners, and in general all persons who fulfil the conditions = required by the=20 law in order to obtain patents.

3. It is not requisite that the applicant should be present, but the=20 application must be made in his name.

4. - =A72. The different kinds of patents. There are three principal = kinds of=20 patents. 1. Patents for inventions, (brevets d' invention.) 2. Patents = for=20 improvements, (brevets de perfectionnement.) 3. Patents for importa = tions,=20 (brevets d'importations.) But as patents may be taken for a combination = of the=20 above, there may be added, by such combination, four others, namely; 5. = Patents=20 for invention and improvements, (brevets d'invention et de = perfectionnemen t.)=20 6. Patents for invention and importation, (brevets d'invention et=20 d'importation.) 7. Patents for importation and improvement, (brevets=20 d'importation et de perfectionnement.) 8. Patents for importation, = invention and=20 improvement (brevets d'invention, et perfectionnement et d' = importation.)

5. The forms prescribed to obtain these several kinds of patents are = exactly,=20 the same, the only difference consists in the declaration of the = applicant,=20 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=20 he desires to have his patent, when he applies, to have his request = registered=20 at the prefecture. He may ha ve it for five, ten, or fifteen years. And = this=20 period he has a right to change until the patent has been signed. But = with=20 regard to patents for importations, the duration of the patent cannot = extend=20 beyond the period for which there is a patent in the country, from which = the=20 importation has been made.

7. Patents, other than for importation, may be extended as to time. = There are=20 two species of prolongation; the first, within fifteen years; the = second, beyond=20 fifteen years.

8. - =A73. Cost of patents. The tax, as it is called, which must be = paid in=20 order to obtain a patent, varies according to the duration of the = patent. This=20 tax may be paid in cash or by instalments. When paid in cash, it is as = follows:=20 1. For, five years, 300 francs, about 56 dollars and 40 cents. 2. For = ten years,=20 800 francs, about 94 dollars. 3. For fifteen years, 1500 francs, about = 282=20 dollars; besides some office expenses, amounting to from ten to fifteen = dollars.=20

9. - =A74. Foreign patents. The patentee in France cannot obtain a = patent in a=20 foreign country, without losing his rights in France; but this provision = is=20 easily eluded by anotber person taking out the patent in the foreign = country,=20 when patents for importations are granted. Perpigna, Manuel des = Inventeurs,=20 &o., c. 3, 5, p. 90.

PATENT LAWS OF GREAT BRITAIN AND IRELAND. The patent laws of = Great=20 Britain and Ireland will be briefly considered by taking a view of the = persons=20 to whom patents will be granted; the different kinds of patents; the = time for=20 which they are granted; and the expenses attending them.

2. - =A71. To whom patents are granted. Both foreigners and subjects = may obtain=20 letters-patent; but inasmuch as the applicant must accompany his = petition by a=20 declaration made before a master in chancery, or a master extraordinary = in=20 chancery, that he has made such an invention; that he is the true and = first=20 inventor thereof; or that it is new in the kingdom, according to the = special=20 circumstances of the case, the applicant must be present in Great = Britain.

3. - =A72 The different kinds of patents. This will be considered by = taking a=20 view, first, of the object of a patent, and secondly, the territory over = which a=20 patent extends.

4. - 1. The thing patented must be, 1. A discovery or invention made = by the=20 applicant himself, in the United Kingdom. 2. The introduction or = importation of=20 an invention known abroad, and in this case, the introducer is the true = and=20 first inventor, within the realm. 3. Though not absolutely the true and = first=20 inventor, by reason of some one else having made the same invention and = kept it=20 secret, yet the invention must have been made public by the applicant, = and as=20 the first publisher, the applicant will be entitled to letters-patent. = Novelty=20 and utility are essential conditions of the grant, but it is of no = consequence=20 whether the discovery was known or not, in a country foreign to the = United=20 Kingdom. Webst. on Pat. 11 and 70, note w. A recent act of parliament, = passed=20 July 1, 1852, (15 & 16 Viet. cap. 83,) amended the English patent' = system in=20 several important particulars. The cardinal features of the new system = are: 1,=20 protection from the day of the application 2, one patent for the United = Kingdom;=20 3, moderate cost and periodical paywent; 4, printing and publishing of=20 specifications; 5, one office of patents and specifications. Webster's = New=20 Patent Law, p. 41. By the 18th sec. of said act, letters patent are = sealed with=20 the great seal of the United Kingdom, and extend to the whole of the = United=20 Kingdom of Great Britain and Ireland, the Channel Islands, and the Isle = of man;=20 also, to the colonies or plantations, or such of them as the applicant = may=20 designate in his petition for the letters patent and the law officer of = the=20 crown shall insert, in his warrant for the seal ing of the patent. The = patent=20 may bear date as of the, day of the application, or of the sealing, or = of any=20 intermediate day. The patent is granted for fourteen years, subject = however to=20 the condition that it shall be void at the expiration of three years and = of=20 seven years respectively from the date thereof, unless before the = expiration of=20 the said three years and seven years, stamps of the value of X50 and = X100=20 respectively, be affixed to the letters patent. The cost of obtaining = letters=20 patent is, in the first instance, X20 if the patent is unopposed; if = opposed,=20 there are additional fees amounting to nearly X5. By sec. 26, letters = patent=20 obtained in the United Kingdom for patented foreign inventions are not = to=20 continue in force after the expiration of the foreign patent.

PATENT, PRUSSIAN. This subject will be considered by taking a = view of=20 the persons who may obtain patents; the nature of the patent; and the = duration=20 of the right.

2. - =A71, Of the persons who may obtain patents. Prussian citizens = or subjects=20 are alone entitled to a patent. Foreigners can not obtain one.

3. - =A72. Nature of the patents. Patents are granted in Prussia for = an=20 invention when the thing has been discovered or invented by the = applicant. For=20 an improvement, when considerable improvement has been made to a thing = before=20 known. And for importation, when the thing has been brought from a = foreign=20 country and put in use in the kingdom. Patents may extend over the whole = country=20 or only over a particular part.

4. - =A73. Duration of patents. The patent may at the choice of the = applicant,=20 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=20 of the persons to whom they may be granted; the different kinds of = patents; the=20 cost of a patent; and the obligations of thepatentee.

2. - =A71. To whom patents are granted. Every person, whether a = citizen of the=20 estates of the pope or foreigner, man or woman, adult or infant, may = obtain a=20 patent for an invention, for an improvement, or for importation, by = fulfilling=20 the conditions prescribed in order to obtain a grant of such titles. = Persons who=20 have received a patent from the Roman government may, afterwards, = without any=20 compromise of their rights or privileges, receive a patent in a foregn = country.=20

3. The different kinds of patents. In the Roman estates there are = granted=20 patents for invention, for improvements, and for importations.

4. - 1st. Patents for inventions are granted for, 1. A new kind of = important=20 culture. 2. A new and useful art, before unknown. 3. A new and useful = process of=20 culture or of manufacture. 4. A new natural production. 5. A new = application of=20 a means already, known.

5. - 2d. Patents for improvements may be granted for any useful = improvement=20 made to inventions already known and used in the Roman states.

6. - 3d, Patents for importations are granted in two cases, namely: = 1. For=20 the introduction of inventions already patented in a foreign country, = and the=20 privilege of which patent yet continues. 2. For the introduction of an = invention=20 known and freely used in a foreign country, but not yet used or known in = the=20 Roman states.

7. - 3. Cost of a patent. The cost of a patent is fixed at a certain = sum per=20 annum, without regard to the length of time for which it may have been = granted.=20 It varies in relation to patents for inventions and importation. It is = ten Roman=20 crowns per annum for a patent for invention and improvement, and of = fifteen=20 crowns a year for a patent for importation.

8. - =A74. Obligation of the patentee. He is required to bring into = uue his=20 invention within one year after the grant of the patent, and not to = suspend the=20 supply for the space of one year during the time the privilege shall = last.

9. He is required to pay one balf of the tax or expense of his patent = on=20 receiving his patent, and the other half during the first month of the = second=20 portion of its, duration.

PATENT-OFFICE. An office bearing this name was established by = law, and=20 by the act Of congress of July 4, 1836, which repeals all acts = theretofore=20 passed in relation to patents, 4 Sharsw. cont. of Story's L. U. S. 2504, = it is=20 provided, =A71. That there shall be established and attached to the = department of=20 state, an office to be denominated the patent office; the chief officer = of which=20 shall be called the commissioner of patents, to be appointed by the = president,=20 by and with the advice and consent of the senate, whose duty it shall = be, under=20 the direction of the secretary of state, to superintend, execute, and = perform,=20 all such acts and things touching and respecting the granting and = issuing of=20 patents for new and useful discoveries, inventions, and improvements, as = are=20 herein provided for, or shall hereafter be, by law, directed to be done = and=20 performed, and shall have the charge and custody of all the books, = records,=20 papers, models, machines, and all other things belonging to said office. = And=20 said commissioner, shall receive the same compensation as is allowed by = law to=20 the commissioner of the Indian department, and shall be entitled to send = and=20 receive letters and packages by mail, relating to the businesss of the = office,=20 free of postage.

2. - =A72. That there shall be in said office, an inferior officer, = to be=20 appointed by the said principal officer, with the approval of the = secretary of=20 state, to receive an annual salary of seventeen hundred dollars, and to = be=20 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=20 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=20 said office, and shall perform the duties of commissioner during such = vacancy.=20 And the, said commissioner may also, with like approval, Appoint an = examining=20 Clerk, at an annual salary of fifteen hundred dollars; two other clerks = at=20 twelve hundred dollars each, one of whom shall be a competent = draughtsman; one=20 other clerk at one thousand dollars; a machinist at twelve hundred and = fifty=20 dollars; and a messenger at seven hundred dollars. And said = commissioner,=20 clerks, and every other person appointed and employed in said office, = shall be=20 disqualified, and interdicted from acquiring or taking, except by = inheritance,=20 daring the, period for which they shall hold their appointments, = respectively,=20 any right or interest, directly or indirectly, in any patent for an = invention or=20 discovery which has been, or may hereafter be granted.

3. - =A73. That the said principal officer, and every other person to = be=20 appointed in the said office, shall, before he enters upon the duties of = his=20 office or appointment, make oath or affirmation, truly and faithfully to = execute=20 the trust committed to him. And the said commissioner and the chief = clerk shall=20 also, before entering upon their duties, severally give bond with = sureties to=20 the treasurer of the United States, the former in the sum of ten = thousand=20 dollars, and the latter, in the sum of five thousand dollars, with = condition to=20 render a true and faithful account to him or his successor in office, = quarterly=20 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=20 by virtue of said office.

4. - =A74. That the said commissioner shall cause a seal to be made = and=20 provided for the said office, with such device as the president of the = United=20 States shall approve, and copies of any records, books, papers, or = drawings,=20 belonging to the said office, under the signature of the said = commissioner, or=20 when the office shall be vacant, under the signature of the chief clerk, = with=20 the said seal affixed, shall be competent evidence in all, cases in = which the=20 original records, books, papers, or drawing, could be evidence. And any = person=20 making application therefor, may have certified copies of the records, = drawings,=20 and other papers deposited in said office, on paying, for the written = copies,=20 the sum of ten cents for, every page of one hundred words; and for = copies of=20 drawing, the reasonable expense of making the same.

PATENTEE. He to whom a patent has been granted. The term is = usually=20 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=20 damages for a violation of such rights. 3. To have an injunction to = prevent any=20 infringement of such rights.

3. His duties are to supply the public, upon reasonable terms, with = the thing=20 patented.

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

PATER FAMILLIAS, civil law. One who was sui juris and = consequently was=20 not either under parental power, nor under that of a master; a child in = his=20 cradle, therefore, could have been pater familias, if he had neither a = master=20 nor a father. Lec. Elem. =A7127, 128.

PATERNA PATERNIS. This expression is used in the French law to = signify=20 that in a succession, the property coming from the father of the = deceased,=20 descends to his paternal relations.

PATERNAL. That which belongs to the father or comes from him: = as,=20 paternal power, paternal relation, paternal estate, paternal line. Vide = Line.=20

PATERNAL POWER. Patria potestas, The, authority lawfully = exercised by=20 parents, over their children. It will be proper to consider, 1. Who are = entitled=20 to exercise this power. 2. Who are subject to it. 3. The extent of this = power.=20

2. - 1. As a general rule the father is entitled to exert the = paternal power=20 over his children. But for certain reasons, when the father acts = improperly, and=20 against the interest of those over whom nature and the law have given = him=20 authority, he loses his power over them. It being a rule that whenever = the good=20 of the child requires it, the courts will deliver the custody of the = children to=20 others than the father. And numerous instances may be found where, for = good=20 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=20 right to the custody and control of such child. 2 Mass. 109; 12 Mass. = 887.

4. - 2. All persous are subject to this power until they arrive at = the full=20 age of twenty-one years. A father may, however, to, a certain extent, = deprive=20 himself of this unlimited paternal power, first, by delegating it to = others, as=20 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=20 4 S. & R. 207; 4 Mass. 675.

5. - 3. The principle upon which the law is, founded as to the extent = of=20 paternal power is, that it be exerted for the benefit of the child. The = child is=20 subject to the lawful commands of the father to attend to his business, = because=20 by being so subjected he acquires that discipline and the practice of = attending=20 to business, which will be useful to him in after life. He is liable to = proper=20 correction for the same reason. 1 Bouv. Inst. n. 326-33. See Correction; = Father;=20 Mother; Parent.

PATERNAL PROPERTY. That which descends or comes from the = father and=20 other ascendants, or collaterals of the paternal stock. Domat. Liv. = Prel. tit,=20 3, s. 2.

PATERNITY, The state or condition of a father.

2. The hushand is prima facie presumed to be the father of his wife's = chhildren, born during coverture, or within a competent time afterwards = pater is=20 est quem nuptim demonstrant. 7 N. S. 553. But this presumption may be = rebutted=20 by showing circumstances which render it impossible that the hushand can = be the=20 father. 6 Binn. 283; 1 Browne's R. Appx. xlvii.; Hardin's R. 479; 8 = East, R.=20 193; Stra. 51, 940. 4 T. R; 356;. 2 M. & K. 349; 3 Paige's R. 139; I = Sim.=20 & 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=20 condition of a child born during the marriage. 7 N. S. 553; 3 Paige's R. = 139.=20 Vide Bastard;. Bastardy;, Legitimacy; Maternity; Pregnancy.

PATHOLOGY, med. jur. The science or doctrine of diseases. In = cases of=20 homicides, abortions, and the like, it is of great consequence to the = legal=20 practitioner to be acquainted, in some degree, with pathology. 2 Chit. = Pr. 42,=20 note.

PATRIA. The country; the men of the neighborhood competent to = serve on=20 a jury; a jury. This word is nearly synonymous with pais. (.q. v.)

PATRIA POTESTAS, Civil law. Paternal power; (q. v.) the = authority=20 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,=20 from the mother or other ancestor.

PATRIMONIUM, civil law. That which is capable, of being = inherited.=20

2. Things capable of being possessed by a single person exclusively = of all=20 others, are, in the Roman or civil law, said to be in patrimonio; when = incapable=20 of being so possessed they are extra-patrimonium.

3. In general, things may be inherited, but there are some which are = said to=20 be extra patrimonium, or which are not in commerce. These are such as = are=20 common, as the light of heaven, the air, the sea, and the like. Things = public,=20 as rivers, harbors, roads, creeks, ports, arms of the sea, the, = sea-shore,=20 highways, bridges, and the like. Things which belong to cities and = municipal=20 corporations, as public-squares, streets, market houses, and the like. = See, 1=20 Bouv. Inst. n. 421 to 446.

PATRIMONY. Patrimony is sometimes understood to mean all kinds = of=20 property but its more limited signification , includes only such estate, = as has=20 descended in the same family and in a still more confined sense, it is = only that=20 which has descended or been devised in a direct line from the father, = and by=20 extension, from the mother, or other ancestor.

2 . By patrimony, patrimonium, is also understood the father's duty = to take=20 care of his children. Sw. pt. 3, =A718, n. 31, p. 235.

PATRINUS. A godfather.

PATRON, eccles. law. He who has the disposition and gift of an = ecclesiastical benefice. In the Roman law it signified the former master = of a=20 freedman. Dig. 2, 4, 8, 1.

PATRONAGE. The right of appointing to office; as the patronage = of the=20 president of the United States, if abused, may endanger the liberties of = the=20 people.

2. In the ecclesiastical law, it signifies the right of presentation = to a=20 church or ecclesiastical benefice. 2 Bl. Com. 21.

PATRONUS, Roman civil law. This word is a modification of the, = Latin=20 word pater, father; a denomination applied by Romulus to the first, = senators of=20 Rome, and which they always afterwards bore. Romulus at first appointed = a=20 hundred of them. Seven years afterwards, in consequence of the = association of=20 Tatius to the Romans, a hundred more were appointed, chosen from the = Sabines.=20 Tarquinius Priscus increased the number to three hundred. Those = appointed by=20 Romulus and Tatius were called patres majorum gentium and the others = were called=20 patres minorum gentium. These and their descendants constituted, the = nobility of=20 Rome. The rest of the people were called lebeians, every one of whom was = obliged=20 to choose one of these fathers as his patron. The relation thus = constituted=20 involved important consequences. The plebeian, who was called (cliens) a = client,=20 was obliged to furnish the means of maintenance to his chosen patron; to = firnish=20 a portion for his patron's daughters; to ransom him and his sons, if = captured by=20 an enemy, and pay all sums recovered against him by judgment, of the = 'courts.=20 The patron, on the other hand, was, obliged to watch over the interests = of his=20 client, whether present or absent to protect his person and property, = and=20 especially to defend him in all, actions brought against him for any = cause.=20 Neither could accuse or bear testimony against the other, or give = contrary=20 votes, &c. The contract was of a sacred nature,; the violation of it = was a=20 sort of treason, and punishable as such. According to Cicero, (De Repub. = II. 9,)=20 this relation formed an integral part of the governmental system, Et = habutit=20 plebem in clientelas principum descri ptum, which he affirms was = eminently=20 useful. Blackstone traces the system of vassalage to this. ancient = relation of=20 patron and client. It was, in fact, of the same nature as the feudal=20 institutions of the middle ages, designed to maintain order in a rising = state by=20 a combination of the opposing interests of the aristocracy and of the = common=20 people, upon the principle of reciprocal bonds for mutual interests, = Dumazeau,=20 Barreau Romain, =A7III. Ultimately, by force of radical changes in the=20 institution, the word patronus came to signify notbing more than an = advocate.=20 Id. IV

PATRUELIS, civil law. A cousin german by the father's side; = the son or=20 daughter of a father's brother. Dig. 38i 10, 1.

PATRUUS, citq law. An uncle by the father's side, a father's = brother.=20 Dig. 38, 10, 10, Patruus magnus, is a grandfather's brother, grand = uncle.=20 Patruus major, is a great-grandfather's brother. Patruus maximus, is a,=20 great-grandfather's father's brother.

PAUPER. One so poor that he must be supported at the public = expense.=20

2. The statutes of the several states make ample provisions for the = support=20 of the poor. It is not within the plan of this work even to give an = abstract of=20 such extensive legislation. Vide 16 Vin. Ab. 259;Botts on thc Poor Laws; = Woodf.=20 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;=20 to use it, when it is for the advantage of the pawner, but, in such = case, when=20 he makes a profit out of it, he must account for the same. 1 Car. Law = Rep. 8 7;=20 2 Murph.

3. The pawnee is bound to take reasonable care, of the pledge, and to = return=20 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=20 pawn, after having given due notice; and, secondly, by action. See. 1 = Bouv.=20 Inst. n. 1046, 1050.

PAWNOR. One who, being liable to an engagement, gives to the = person to=20 whom he is liable, a thing to be held as a security for the payment of = his debt=20 or the fulfilment of his liability.

2. The rights of the pawnor are to redeem the pledge, at any time = before it=20 is sold.

3. His oblioations are to warrant the title of the pledge, and to = redeem it=20 at the time agreed upon. See 1 Bouv. lnst. n. 1045.

PAYEE. The person in whose favor a bill of exchange is made = payable.=20 Vide Bills of Exchange.

PAYMENT, contracts. That which is given to execute what has = been=20 promised; or it is the fulfilment of a promise. Solvere dicimus cum quis = fecit,=20 quod facere promisit. But though this is the general acceptation of the = word,=20 yet by payment is understood, every way by which the creditor is = satisfied or=20 ought to be, and the debtor, liberated for example, an accord and = satisfaction=20 will operate as a payment. If I owe you a sum of money, for the security = of=20 which I give you a mortgage, and afterwards you consent to receive in = payment a=20 tract of land, from the moment the sale is complete, the first = obligation, with=20 all its accessories, is extinct, although you should be afterwards = evicted of=20 the property sold. 7 Toull. n. 46 2 Mart. Lo. Rep. N. S. 144; S. C. 2 = Harr.=20 Cond. Lo. R. 621, 624.

2. This subject will be considered by taking a separate view of the = person by=20 whom the payment may be made; to whom it may be made; when and where it = ought to=20 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=20 whom the creditor has a right to demand it; an agent may make payment = for his=20 principal; and any mode of payment by the agent, accepted and received = as such=20 by the creditor, as an absolate payment will have the effect to = discharge the=20 principal, whether known or unknown, and whether it be in the usual = course of=20 business or not. If, for example, a factor or other agent should be = employed to=20 purchase goods for his principal, or should be entrusted, with money to = be paid=20 for him, and, instead of receiving the money, the creditor or seller = should take=20 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;=20 1 B. & Ald. 14; 6 B. & C. 160; 7 B. & C. 17. When such note = has=20 been, received conditionally and not as an absolute payment, it would = not have=20 the effect of a payment by the principal; and whether so received or not = is a=20 fact to be decided by the jury. 1 Cowen, R, 259, 383; 9 John. R:, 310; 6 = Cowen,=20 R. 181; 7 John. R. 311; 15 John. R. 276; 3 Wend. R. 83; 6 Wend. R. 475; = 10 Wcnd.=20 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.=20

5. In the payment of mortgages, it is a=9820rule, that the personal = estate=20 shall be applied to discharge them when made by the testator or = intestate=20 himself, to secure the payment of a debt due by bim, because the = personal estate=20 was benefited by the money borrowed; and it makes no difference whether = the=20 mortgaged lands have been devised, or come to the heir by descent. 2 = Cruise, 1=20 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=20 given by the deceased, but be acquired the real estate subject to it, it = never=20 was his debt, and therefore his personal estate is not bound to pay the = mortgage=20 debt, but it must be paid by the real estate. 2 Cruise, Dig. 164-8; 3 = John.=20 Chan. R. 252; 2 P. Wms. 664, n. 1; 2 Bro. C. C. 57; 2 Bro. C. C. 101, = 152; 5=20 Ves. jr. R. 534; 14 Ves. 417.

6. - 2. It must be made by the creditor himself, or his assigns, if = known, or=20 some person authorized by him, either expressly or by implication; as to = his=20 factor; Cowp. 251: to his broker, 1 Maul. & Selw. 576; 4 Id. 566; 4 = Taunt.=20 242; 1 Stark. Ca. 238.

7. In the case of partners and other joint creditors, or joint = execuutors or=20 administrators, payment to one is generally a valid payment. When an = infant is a=20 creditor, payment must be made to his guardian. A payment may be good = when made=20 to a person who had no authority to receive it, if the creditor shall = afterwards=20 ratify it. Poth. Obl. n. 528.

8. - 3. Time and place of payment: first, as to the time. When the = contract=20 is, that payment shall be made at a future time, it is clear that = nothing can be=20 demanded until after it has elapsed, or until any other condition to = which the=20 payment is subject, has been fulfilled; and in a case where the goods = had been=20 sold at six or nine months, the debtor had the option as to those two = terms. 5=20 Taunt, 338. When no time of payment is mentioned in the agreement, the = money is=20 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=20 presumed intention of the parties, which, among other things, may be = ascertained=20 by the nature of the thing to be paid or delivered, or by the custom in = such=20 cases.

10. - 4. How the payment ought to be made. To make a valid payment, = so as to=20 compel the receiver to take it, the whole amount due must be paid; Poth. = Obl. n.=20 499, or n. 534, French edition; when a part is accepted, it is a payment = pro=20 tanto. The payment must be made in the thing agreed upon; but when it = ought to=20 be made in money, it must be made in the lawful coin of the country, or = in bank=20 notes which are of the value they are represented to be. A payment made = in bills=20 of an insolvent bank, though both parties may be ignorant of its = insolvency, it=20 has been held, did not discharge the debt; 11 Verm. 676; 6 Hill, 340; = but see 1=20 W. & S. 92; 8 Yerg. 175; and a payment in counterfeit bank notes is = a=20 nullity. 2 Hawks, 326; 3 Hawks, 568, 6 Hill, 840. Iii general, the = payment of a=20 part of a debt, after it becomes due, will not discharge the whole, = although=20 there may be an agreement by the debtor that it should have that effect, = because=20 there is no consideration for such agreement. But see 3 Kelly's R. 210, = contra.=20 A payment of a part, before it is due, will discharge the whole, when so = agreed.=20

11. - 5. The payment, when properly made, discharges the debtor from = his=20 obligation. Sometimes a payment extinguishes several obligations; this = happens=20 when the thing given to discharge an obligation was the same which is = the object=20 of another obligation. Poth. Obl. 552.

12. A single payment may discharge several debts; as, for example if = Peter be=20 indebted to Paul one thousand dollars, and Paul being indebted to James, = Paul=20 give an order to Peter to pay Tames this money; the payment made by = Peter to=20 James discharges both the obligations due by Peter to Paul, and by Paul = to=20 James. Poth. Ob. n. 553. This rule, that a payment made in order to = acquit or=20 discharge an obligation, extinguishes the other obligations which have = the same=20 object, takes place also when there are several debtors as regards the = whole of=20 them. If, for example, Peter trust Paul on the credit of James, a = payment by=20 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=20 supposed to be entitles to them as a creditor, when he was not, this is = not a=20 payment, and the whole, if nothing was due, or if the debt was less than = the=20 amount paid, the surplus, may be recovered in action for money bad and = received.=20 Vide, generally, Bouv. Inst. Index, h. t.; Com. Di g. 473; 8 Com. Dig. = 607; 16=20 Vin 6; 1 Vern. by Raith. 3, 150 n. Yelv. 11 a; 1 Salk. 22; 15 East, 12; = 8 East,=20 R. 111; 2 Ves. jr. 11; Phil. Ev. Index, b, t,; Stark. Ev. h. t.; Louis. = Code,=20 art. 2129; Ayl. Pand. 565; 1 Sell. Pr. 277; Dane's Ab. Index, h. t.; = Toull. lib.=20 3, tit. 3, c. 5; Pardes. part 2, tit. 2, c. 1 Merl. Repert. h. t.; Chit. = Contr.=20 Index, h. t.; 3 Eng. C. L. Rep. 130. As to what transfer will amount to = an=20 assignment or a payment and extinguishment of a claim, see 6 John. Ch. = R. 395;=20 Id. 425; 2 Ves. jr. 261 18Ves. jr. 384; 1 N. H. Rep. 167; 1 N. H. Rep. = 252; 2 N.=20 H. Rep. 300; 3 John. Ch. R. 53.

PAYMENT, pleadings. The name of a plea by which the defendant = alleges=20 that he has paid the debt claimed in the declaration; this plea must = conclude to=20 the country. 4 Call, 371; Minor, 137. Vide Solvit ad them; Solvit post = diem.=20

PAYS. The country. Trial per pays, is a trial by the country; = that is,=20 by jury. Vide Pais.

PAX REGIS, Eng. law. The king's peace. In ancient times there = were=20 certain limits which were known by this name. The pax regis, or the = verge of the=20 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=20 nine barleycorns. Crabb's C. L. 41.

PEACE. The tranquillity enjoyed by a political society, = internally, by=20 the good order which reigns among its members, and externally, by the = good=20 understanding it has with all other nations. Applied to the internal = regulations=20 of a nation, peace imports, in a technical sense, not merely a state of = repose=20 and security, as opposed to one of violence and warfare, but likewise a = state of=20 public order and decorum. Ham. N. P. 139; 12 Mod. 566. Vide, generally, = Bac. Ab.=20 Prerogative, D 4; Hale, Hist. P. C. 160; 3 Taunt. R. 14; 1 B. & A. = 227;=20 Peake, R. 89; 1 Esp. R. 294; Harr. Dig. Officer, V 4; 2 Benth. Ev. 319, = note.=20 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=20 public funds, of the property of the government entrusted to his care, = to his=20 own use or that of others. Domat, Suppl. au Droit Public, liv. 3, tit. = 5.

PECULIAR, eccles. law. In England, a particular parish or = church,=20 which has, within itself, independent of the ordinary jurisdiction, = power to=20 grant probate of wills, and the like. 1 Eng. Eccl. R. 72, note; Shelf. = on Mar.=20 & Div. 538. Vide Court of peculiars.

PECULIUM, civil law. The savings which were made by a son or = slave=20 with the consent of his father or master. Inst. 2, 9, 1; Dig. 15, 1, 5, = 3; Poth.=20 ad Pand. lib. 50 , tit. 17, c. 2, art. 3.

2. A master is not entitled to the extraordinary earnings of his = apprentice,=20 which do not interfere with his services so as to affect his master's = profits.=20 An apprentice was therefore decreed to be entitled to salvage in = opposition to=20 his master's claim for it. 2 Cranch, 270.

PECUNIA, civil law, property By the term was understood, 1. = Money. 2.=20 Every thing which constituted the private property of an individual, or = which=20 was a part of his fortune; a slave' a field, a house, and the like, were = so=20 considered.

2. It is in this sense the law of the Twelve Tables said; Uti quisque = pater=20 familias legassit super pecunia tutelare rei suae, ita jus esto. In = whatever=20 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.=20 Rom. 288.

3. Flocks were the first riches of the ancients, and it is from pecus = that=20 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=20 pecuniary legacy is one which entitles the legatee to receive a sum of = money,=20 and not a specific chattel. In the ecclesiastical law, by pecuniary = causes is=20 understood such causes as arise either from the withholding = ecclesiastical dues,=20 or the doing or omitting such acts relating to the church, in = consequence of=20 which damage accrues to the plaintiff. In England these causes are = cognizable in=20 the ecclesiastical courts.

PEDIGREE, descents. A succession of degrees from the origin; = it is the=20 state of the family as far as regards the relationship of the different = members,=20 their births, marriages and deaths; this term is applied to persons or = families,=20 who trace their origin or descent.

2. On account of the difficulty of proving in the ordinary manner by = living=20 witnesses, facts which occurred in remote times, hearsay evidence (q. = v.)=20 hasbeen admitted to prove a pedigree. 1 Phil. Ev. 186; 1 Stark. Ev. 55; = 10 Serg.=20 & Rawle, 383; 2 Supp. to Ves. jr. 110; 8 Com. Dig. 583 1 Pet. 337; 6 = Pet.,=20 81; 13 Pet. 209 1 Wheat. 6; 3 Wash. C. C. R. 243; 4 Wash.C.C.R.186;=20 3Bouv.Inst.n. 3067. Vide Descent; Line.

PEDIS POSSESSIO. A foothold, an actual possession. To = constitute=20 adverse possession there must be pedis possessio, or a substantial = enclosure. 2=20 Bouv. Inst. n. 2193; 2 N. & M. 343.

PEDLARS. Persons who travel about the country with = merchandise, for=20 the purpose of selling it. They are obliged under the laws of perhaps = all the=20 states to take out licenses, and to conform to the regulations which = those laws=20 establish.

PEER. Equal. A man's peers are his equals. A man is to be = tried by his=20 peers.

2. In England and some other countries, this is a title of nobility; = as,=20 peers of the realm. In the United States, this equality is not so much = political=20 as civil. A man who is not a citizen, is nevertheless to be tried by = citizens.=20

PEERESS. A noblewoman, the wife of a peer.

PEINE FORTE ET DURE, Eng. law A punishment formerly inflicted = in=20 England, on a person who, being arraigned of felony, refused to plead = and put=20 himself on his trial, and stubbornly stood mute. He was to be laid down = and as=20 much weight was to be put upon him as he could bear, and more, until he = died.=20 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.=20

PENAL STATUTES. Those which inflict a penalty for the = violation of=20 some of their provisions.

2. It is a rule of law that such statutes must be construed strictly. = 1 Bl.=20 Com. 88; Esp. on Pen. Actions, 1; Bosc. on Conv.; Cro. Jac. 415; 1 Com. = Dig.=20 444; 5 Com. Dig. 360; 1 Kent, Com. 467. They cannot, therefore, be = extended by=20 their spirit or equity to other offences than those clearly described = and=20 provided for. Paine, R. 32; 6 Cranch, 171.

PENALTY, contr. A clause in an agreement, by which the obligor = agrees=20 to pay a certain-sum of money, if he shall fail to fulfil the contract = contained=20 in another clause of the same agreement.

2. A penal clause in an agreement supposes two obligations, one of = which is=20 the primitive or principal; and the other, is, conditional or accessory. =

3. The penal obligation differs from an alternative obligation, for = this is=20 but one in its essence; while a penalty always includes two distinct=20 engagements, and, when the first is fulfilled, the second is void. When = a breach=20 has taken place, the obligee has his option to require the fulfilment of = the=20 first obligation, or' the payment of the penalty, in those cases which = cannot be=20 relieved in equity, when the penalty is considered as liquidated = damages.=20 Dalloz, Dict. mots Obligation avec clause penale.

4. It is difficult, in many cases, to distinguish between a penalty = and=20 liquidated damages. In general, the courts have inclined to consider the = sum=20 reserved by such agreement to be a penalty, rather than as stipulated = damages.=20 (q. v.)

5. The sum will be considered as a penalty, and not as liquidated = damages, in=20 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=20 the instrument. 2 Bos. & P. 346; 1 H. Bl. 227; 1 Pick. 45 1; 4 Pick. = 179; 7=20 Wheat. 14; 3 John. Cases, 297. 2. When from the form of the instrument, = as in=20 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=20 a certain damage or debt is made payable on the face of the instrument. = 2 B.=20 & P. 350; 3 C. & P. 240. 4. When the agreement was evidently = made for=20 the attainment of another object, to which the sum, specified is wholly=20 collateral, 11 Mass. 76; 15 Mass. 488; 1 Bro. C. C. 418, 419. 5. When = the=20 agreement contains several matters, of different degrees of importance, = and yet=20 the sum mentioned is payable for the breach of any, even the least. 6 = Bing. 141;=20 5 Bing. N. C. 390; 7 Scott, 364. 6. When the contract is not under seal, = and the=20 damages may be ascertained and estimated; and this though the parties = have=20 expressly declared the sum to be as liquidated damages. 2B. & Ald. = 704; 6 B.=20 & C. 216; 4 Dall. 150; 5 Cowen, 144. See 2 Greenl. Ev. 258. 1 Holt = N. P. C.=20 43 1 Bing. R. 302; S. C. 8 Moore, 244; 4 Burr. 2229.

6. The penalty remains unaffected, although the condition may have = been=20 partially performed; as in a case where the penalty was one thousand = dollars,=20 and the condition was to pay an annuity of one hundred dollars, which = had been=20 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=20 forfeitures. In cases of forfeiture for the breach of any covenant other = than a=20 covenant to pay rent, relief will not be granted in equity, unless upon = the=20 ground of accident, fraud, mistake, or surprise, when the breach is = capable of=20 compensation. Edin. on Inj. 22; 16 Ves. 403; S. C. 18 Ves. 58 3 Ves. = 692; 4=20 Bouv. List. n. 3915.

8. By penalty is understood, also, the punishment inflicted by law = for its=20 violation; the term is mostly applied to a pecuniary punishment. See 6 = Pet. 404;=20 10 Wheat. 246; 1 Gall. R. 26; 2 Gall. R. 515; 1 Mason, R. 243; 3 John. = Cas. 297:=20 R. 451; 15 Mass. 488; 7 John. 72 4 Mass. 433; 8 Mass. 223; 8 Com. Dig. = 846; 16=20 Vin. Ab. 301; 1 Vern. 83, n.; 1 Saund. 58, n.; 1 Swans. 318; 1 Wash. C. = C. R. 1;=20 2 Wash. C. C. R. 323; Paine, C. C. R. 661; 7 Wheat. 13. See, generally, = Bouv.=20 Inst. Index, h. t.

PENANCE, eccl. law. An ecclesiastical punishment, inflicted by = an=20 ecclesiastical court, for some spiritual offence. Ayl. Par. 420.

PENCIL. An instrument made of plumbago, black lead, red chalk, = or=20 other suitable substance, for writing without ink.

2. It has been holden that a will written with a pencil, could riot, = on this=20 account, be annulled. 1 Phillim. R. 1; 2 Phillim. 173.

PENDENTE LITE. Pending the continuance of an action, while = litigation=20 continues.

2. An administrator is appointed, pendente lite, when a will is = contested. 2=20 Bouv. Inst. n. 1557. Vide ddministrator.

PENDENTES, civil law. The fruits of the earth not yet = separated from=20 the ground; the fruits hanging by the roots. Ersk. Inst. B. 2, Lit. 2, = s. 4.=20

PENETRATION, crimes. The act of inserting the penis into the = female=20 organs of generation. 9 Car. & Pa 118; S. C. 38 E. C. L. R. 63. See = 8 Car.=20 & Payne, 614; 34 E. C. L. R. 562; 5 C. & P. 321; S. C. 24 E, C. = L. R.=20 339; 9 C. & P. 31 Id. 752; 38 E. C. L. R. 320. But in order to = commit the=20 crime of rape, it is requisite that the penetration should be such as to = rupture=20 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=20 Hale, P. C. 628; 1 East, P. C. 437, 8; Russ & Ry. C. C. 519; 6 C. = & P.=20 351; 5 C. & P. 297, 321; S. C. 24 E. C. L. R. 339; 1 Chit. Med. Jur. = 386 to=20 395; 1 Virg. Cas. 307; 4 Mood. Cr. Cas. 142, 337; 4 Car. & P. 249; 1 = Par.=20 & Fonbl. 433; 2 Mood. & M. C. N. P. 122; 1 Russ. C. & M 560; = 1 East,=20 P. C. 437.

PENITENTIARY. A prison for the punishment of convicts.

2. There are two systems of penitentiaries in the United States, each = of=20 which is claimed to be the best by its partizans: the Pennsylvauia = system and=20 the New York system. By the former, convicts are lodged in separate, = well=20 lighted, and well ventilated cells, where they are required to work, = during=20 stated hours. During the whole time of their confinement, they are never = permitted to see or speak with each other. Their usual employments are=20 shoemaking, weaving, winding yarn, picking wool, and such like business. = The=20 only punishments to which convicts are subject, are the privation of = food for=20 short periods, and confinement without labor in dark, but well aired = cells; this=20 discipline has been found sufficient to keep perfect order; the whip ana = all=20 other corporal punishments are prohibited. The advantages of the plan = are=20 numerous. Men cannot long remain in solitude without labor convicts, = when=20 deprived of it, ask it as a favor, and in order to retain it, use, = generally,=20 their best exertions to do their work well; being entirely secluded, = they are of=20 course unknown to their fellow prisoners, and can form no combination to = escape=20 while in prison, or associations to prey upon society when they are out; = being=20 treated with kindness, and afforded books for their instruction and = amusement,=20 they become satisfied that society does not make war upon them, and, = more=20 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=20 convicts tends greatly to defray the expenses of the prison. The = disadvantages=20 which were anticipated have been found, to be groundless.; Among these = were,=20 that the prisoners would be unhealthy; experience has proved the = contrary; that=20 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=20 discipline of the prison could not be enforced. These and all other = objections=20 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=20 penitentiary at Ghent, in the Netherlands, called La Maison de Force, is = founded=20 on the system of isolation and separation, as well as that of = Pennsylvania, but=20 with this difference, that in the former the prisoners are confined to = their=20 separate cells during the night only; during the working hours in the = day time=20 they labor together in work shops appropriated to their use. They cat = their=20 meals together, but in such a manner as not to be able to speak with = each other.=20 Silence is also imposed upon them at their labor. They perform the labor = of=20 carpenters, blacksmiths, weavers, shoemakers, tailors, coopers, = gardeners, wood=20 sawyers, &c. The discipline of the prison is enforced by stripes, = inflicted=20 by the assistant keepers, on the backs of the prisoners, though this = punishment=20 is rarely exercised. The advantages of this plan are, that the convicts = are in=20 solitary confinement during the night; that their labor, by being joint, = is more=20 productive; that, inasmuch as a clergyman is employed to preach to the=20 prisoners, the system affords an, opportunity for mental and moral = improvements.=20 Among the objections made to it are, that the prisoners have = opportunities of=20 communicating with each other, and of forming plans of escape, and when = they are=20 out of prison, of associating together in consequence of their previous=20 acquaintance, to the detriment of those who wish to return to virtue, = and to the=20 danger of the public; that the discipline is degrading, and that it = engenders=20 bitter resentment in the mind of the convict. Vide, generally, on the = subject of=20 penitentiaries, Report of the Commissioners (Messrs. King, Shaler, and = Wharton,)=20 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=20 Pennsylvania; Carey on ditto; Reports of the Boston Prison Discipline = Society;=20 Livingston's excellent Introductory Report to the Code of Reform and = Prison=20 Discipline, prepared for the state of Louisiana; Encycl. Americ. art. = Prison=20 Discipline; De. I'Etat Actuel des Prisons en France, par L. M. More au=20 Christophe; Dalloz, Dict. mot Peine, =A71, n. 3, and Supplem. mots = Prisons et=20 Bagnes.

PENNSYLVANIA. The name of one of the original states of the = United=20 States of America. Pennsylvania was occupied by planters of various = nations,=20 Dutch Swedes, English, and others; but obtained no separate name until = the year=20 1681, when Charles II. granted a charter to William Penn, by which he = became its=20 proprietary, saving, however, allegiance to the crown, which retained = the=20 sovereignty of the country. This charter authorized the proprietary, his = heirs=20 and successors, by and with the assent of the freemen of the country, or = their=20 deputies assembled for the purpose, to make laws. Their laws were = required to be=20 consonant to reason, and not repugnant or contrary, but as near as = conveniently=20 could be to the laws and statutes of England. Pennsylvania was governed = by this=20 charter till the period of the Revolution.

2. The constitution of the state was adopted on the second day of = September,=20 1790, and amended by a convention selected by the people, on the = twenty-second=20 day of February, 1838. The powers of the government are divided into = three=20 distinct branches: the legislative, the executive and the judiciary. =

3. - 1st. The legislative power is vested in a general assembly, = which=20 consists of a senate and house of representatives.

4. - 1. The senate will be considered with reference to the = qualification of=20 the electors; the qualification of the members; the length of time for = which=20 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=20 this state one year, and in the election district where he offers to = vote ten=20 days immediately preceding such election, and within two years paid a = state or=20 county tax, which shall have been assessed at least ten days before the=20 election, shall enjoy the rights of an elector. But a citizen of the = United=20 States who had previously been a qualified voter of this state and = removed=20 therefrom and returned, and who shall have resided in the election = district and=20 paid taxes as aforesaid, shall be entitled to vote after residing in the = state=20 six months: Provided, that white freemen, citizens of the United States, = between=20 the ages of twenty-one and twenty-two years, and having resided in the = state one=20 year, and in the election district ten days as aforesaid, shall be = en-titled to=20 vote although they shall not have paid taxes. Art. 3, s. 1. 2. No person = shall=20 be a senator who shall not have attained the age of twenty-five years, = and have=20 been a citizen and inhabitant of the state four years next before his = election,=20 and the last year thereof an inhabitant of the district for which he = shall be=20 chosen, unless he shall have been absent on the public business of the = United=20 States or of this state; and no person elected as aforesaid, shall hold = the said=20 office after he shall have removed from such district. Art. 1, s. 8. 3. = The=20 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=20 their office for three years.

5. Their election takes place on the second Tuesday of October, = one-third of=20 the senate each year.

6. - 2. The house of representatives will be treated of in the same = manner=20 which has been observed in considering the senate. 1. The electors are = qualified=20 in the same manner as the electors of the senate. 2. No person shall be = a=20 representative who shall Dot have attained the age of twenty-one years, = and have=20 been a citizen and inhabitant of the state three years next preceding = his=20 election, and the last year thereof an inhabitant of the district in and = for=20 which he shall be chosen a representative, unless be shall have been = absent on=20 the public business of the United States or of this state. Art. 1, s. 3. = 3. The=20 number of representatives shall never be less than sixty, nor greater = than one=20 hundred. Art. 1, s. 4. 4. They are elected yearly. 5. Their election is = on the=20 second Tuesday of October, yearly.

6. - 2d. The supreme executive power of this commonwealth is vested = in a=20 governor. 1. He is elected by the electors of the legislature. 2. He = must be at=20 least thirty years of age, and have been a citizen and an inhabitant of = the=20 state seven years next before his election, unless he shall have been = absent on=20 the public business of the United States or of this state. Art. 2, s. 4. = 3. The=20 governor shall hold his office during three years from the third Tuesday = of=20 January next ensuing his election, and shall not be capable of holding = it longer=20 than six in any term of nine years. Art. 2, s. 3. 4. His principal = duties are=20 enumerated in the second article of the constitution, as follows: The = governor=20 shall at stated times receive for his services a compensation which = shall be=20 neither increased or diminished during the period for which he shall = have been=20 elected. He shall be commander-in-chief of the army and navy of this=20 commonwealth, and of the militia, except when they shall be called into = the=20 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=20 and consent of the senate appoint, all judicial officers of courts of = record,=20 unless otherwise provided for in this constitution. He shall have power = to fill=20 all vacancies that may happen in such judicial offices during the recess = of the=20 senate, by granting commissions which shall expire at the end of their = next=20 session: Provided, that in acting on executive nominations the senate = shall sit=20 with open doors, and in confirming or rejecting the nominations of the = governor,=20 the vote shall be taken by yeas and nays. He shall have power to remit = fines and=20 forfeitures, and grant reprieves and pardons, except in cases of = impeachment. He=20 may require information in writing from the officers in the executive=20 departiment, upon any subject relating to the duties of their respective = offices. He shall, from time to time, give to the general assembly = information=20 of the state of the commonwealth, and recommend to their consideration = such=20 measures as he shall judge expedient. He may, on extraordinary = occasions,=20 convene the general assembly; and, in case of disagreement between the = two=20 houses with respect to the time of adjournment, adjourn them to such = time as he=20 shall think proper, not exceeding four months. He shall take care that = the laws=20 be faithfully executed. In case of the death or resignation of the = governor, or=20 of his removal from office, the speaker of the senate shall exercise the = office=20 of governor until another governor shall be duly qualified; but in such = case=20 another governor shall be chosen at the next annual election of = representatives,=20 unless such death, resignation or removal shall occur within three = calendar=20 months, immediately preceding such next annual election, in which case a = governor shall be chosen at the second succeeding annual election of=20 representatives. And if the trial of a contested election shall continue = longer=20 than until the third Monday of January next ensuing the election of = governor,=20 the governor of the last year, or the speaker of the senate who may be = in the=20 exercise of the executive authority, shall continue therein until the=20 determination of such contested election, and until a governor shall be = duly=20 qualified as aforesaid.

7. - 3d. The judicial power of the commonwealth is vested by the = fifth=20 article of the constitution as follows:

=A71. The judicial power of this commonwealth shall be vested in a = supreme=20 Court, in courts of oyer and terminer and general jail delivery, in a = court of=20 common pleas, orphans' court, register's court, and a court of quarter = sessions=20 of the peace, for each county in justices of the peace, and in such = other courts=20 as the legislature may from time to time establish.

8. - =A72. By an amendment to this constitution, the judges of the = supreme=20 court, of the several courts of common pleas, and of such other courts = of record=20 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=20 the supreme court shall hold their offices for the term of fifteen years = if they=20 shall so long behave themselves well. The president judges of the = several courts=20 of common pleas and of such other courts of record as are or shall be=20 established by law, and all other judges required to be learned in the = law,=20 shall hold their offices for the term of ten years if they shall so long = behave=20 themselves well. The associate judges of the courts of common pleas = shall hold=20 their offices for the term of five years if they shall so long behave = themselves=20 well. But for any reasonable cause which shall not be sufficient ground = of=20 impeachment, the governor may remove any of them on the address of = two-thirds of=20 each branch of the legislature. The judges ofthe supreme court and the=20 presidents of the several courts of common pleas, shall at stated times = receive=20 for their services an adequate compensation to be fixed by law, which = shall not=20 be diminished during their continuance in office, but they shall receive = no fees=20 or perequisites of office, nor hold any other office of profit under = this=20 commonwealth.

9. - =A73. Until otherwise directed by law, the courts of common = pleas shall=20 continue as at present established. Not more than five counties shall at = any=20 time be included in one judicial district organized for said courts. =

10. - =A74. The jurisdiction of the supreme court shall extend over = the state;=20 and the judges thereof shall, by virtue of their offices be justices of = oyer and=20 terminer and general jail delivery, in the several counties.

11. - =A75. The judges of the court of common pleas, in each county, = shall, by=20 virtue of their offices, be justices of oyer and terminer and general = jail=20 delivery, for the trial of capital and other offenders therein; any two = of the=20 said judges, the president being one, shall be a quorum; but they shall = not hold=20 a court of oyer and terminer, or jail delivery, in any county, when the = judges,=20 of the supreme court, or any of them, shall be sitting in the same = county. The=20 party accused, as well as the commonwealth, may, under such regulations = as shall=20 be prescribed by law, remove the indictment and proceedings, or a = transcript=20 thereof, into the supreme court,

12. - =A76. The supreme court, and the several courts of common = pleas, shall,=20 besides the powers heretofore usually exercised by them, have the power = of a=20 court of chancery, so far as relates to the perpetuating If testimony, = the=20 obtaining of evidence from places not within the state, and the care of = the=20 persons and estates of those who are non compotes mentis. And the = legislature=20 shall vest in the said courts such other powers to grant relief in = equity, as=20 shall be found necessary; and may, from time to time, enlarge or = diminish those=20 powers, or vest them in such other courts as they shall judge proper for = the due=20 administration of justice.

13, - =A77. The judges of the court of common pleas of each county, = any two of=20 whom shall be a quorum, shall compose the court of quarter sessions of = the=20 peace, and orphans' court thereof: and the register of wills, together = with the=20 said judges, or, any two of them, shall compose the register's court of = each=20 county.

14. - =A78. The judges of the courts of common pleas shall, within = their=20 respective counties, have the like powers with the judges of the supreme = court,=20 to issue writs of certiorari to the justices of the peace, and to cause = their=20 proceedings to be brought before them, and the like right and justice to = be=20 done.

15. - =A79. The president of the court in each circuit within such = circuit, and=20 the judges of the court of common pleas within their respective = counties, shall=20 be justices of the peace, so far as relates to criminal matters.

16. - =A710. A register's office, for the probate of wills and = granting letters=20 of administration, and an office for the recording of deeds, shall be = kept in=20 each county.

17. - =A711. The style of all process shall be "The commonwealth of=20 Pennsylvania." All prosecutions shall be carried on in the name and by = the=20 authority of the commonwealth of Pennsylvania, and conclude, "against = the peace=20 and dignity of the same."

PENNY. The name of an English coin of the value of one-twelfth = part of=20 a shilling. While the United States were colonies, each adopted a = monetary=20 system composed of pounds, shillings, and pence. The penny varied in = value in=20 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=20 an individual, or those who represent him, for valuable services = performed by=20 him for the country. The government of the United States has, by general = laws,=20 granted pensions to revolutionary soldiers; vide 1 Story's Laws U. S. = 68; 101,=20 224, 304, 363, 371, 451; 2 Id. 903, 915, 983, 1008, 1240; 3 Id. 1662, = 1747,=20 1778, 1794, 1825, 1927; 4 Id. 2112, 2270, 2329, 2336, 2366; to naval = officers=20 and sailors; 1 Stor. L. U. S. 474, 677, 769; 2 Id. 1284 3 Id. 1565; to = the army=20 generally; 1 Id. 360, 412, 448; 2 Id. 833; 3 Id 1573 to the militia = generally; 1=20 Id. 255, 360, 412, 488 2 Id. 1382; 3 Id. 1873; in the Seminole war, 3 = Id. 1706.=20

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=20 from the government.

PEONIA, Spanish law. A portion of land which was formerly = given to a=20 simple soldier, on the conquest of a country. It is now a quantity of = land, of=20 different size in different provinces. In the Spanish possessions in = America, it=20 measured fifty feet front and one hundred feet deep. 2 White's Coll. 49; = 12 Pet.=20 444, notes.

PEOPLE. A state; as, the people of the state of New York; a = nation in=20 iis collective and political capacity. 4 T. R. 783. See 6 Pet. S. C. = Rep. 467.=20

2. The word people occurs in a policy of insurance. The insurer = insures=20 against "detainments of all kings, princes and people." He is not by = this=20 understood to insure against any promiscuous or lawless rabble which may = be=20 guilty of attacking or detaining a ship. 2 Marsh. Ins. 508. - Vide Body = litic;=20 Nation.

PER. By. When a writ of entry is sued out against the alienee, = or=20 descendant of the original disseisor, it is then said to be brought in = the per,=20 because the writ states that the tenant had not the entry but by the = original=20 wrong doer. 3 Bl. Com. 181. See Entry, writ of.

PER CAPITA, by the head or polls. This term is applied when an = estate=20 is to be divided share and share alike. For example, if a legacy be = given to the=20 issue of A B, and A B at the time of his death, shall have two children = and two=20 grandchildren, his estate shall be divided into four parts, and the = children and=20 grandchildren shall each have one of them. 3 Ves. 257; 13 Ves. 344. Vide = 1 Rop.=20 on Leg. 126, 130.

PER AND CUI. When a writ of entry is brought against a second = alienee=20 or descendant from the disseisor, it is said to be in the per and cui, = because=20 the form of the writ is that the tenant had not entry but by and under a = prior=20 alienee, to whom the intruder himself demised it. 2 Bl. Com. 181. See = Entry,=20 writ of.

PER FRAUDEM. A replication to a plea where something has been = pleaded=20 which would be a discharge, if it had been honestly pleaded, that such a = thing=20 has been obtained by fraud for example, where on debt on a statute, the=20 defendant pleads a prior action depending, if such action has been = commenced by=20 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=20 any intent to hurt, unfortunately kills another. Hawk. bk. 1, c. 11; = Foster,=20 258, 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=20 may avoid it afterwards. 1 Bl. Com. 131; Bac. Ab. Duress; Id. Murder A. = See=20 Duress.

PER MY ET PER TOUT. By every part or parcel and by the whole. = A joint=20 tenant of lands is said to be seised per my et per tout. Litt. s. 288. = See 7=20 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=20 beating his wife, his child,, or his servant, it is usual to lay the = injury with=20 a per quod. In such case, after complaining of the injury, say to the = wife, the=20 declaration proceeds, "insomuch that the said E F, (the wife,) by means = of the=20 premises, then and there became and was sick, sore, lame, and = disordered, and so=20 remained and continued for a long space of time, to wit, hitherto, = whereby he,=20 the said A B, (the plaintiff,) lost", &c. 2 Chit. Pl. 422; 3 Bl. = Com. 140.=20 It seems that the per quod is not traversable. 1 Saund. 298; 1 Ld. Raym. = 410; 2=20 Keb. 607; 1 Saund. 23, note 5.

PER STIRPES. By stock; by roots.

2. When, for example, a man dies intestate, leaving children and=20 grandchildren, whose parents are deceased, the estate is to be divided = not per=20 capita, that is, by each of the children and grandchildren taking a = share, but=20 per stirpes, by each of the children taking a share, and the = grandchildren, the=20 children of a deceased child, taking a share to be afterwards divided = among=20 themselves per capita.

PERAMBULATIONE FACIENDA, WRIT DE, Eng. law. The name of a writ = which=20 is sued by consent of both parties, when they are in doubt as to the = bounds of=20 their respective estates; it is directed to the sheriff to make = perambulation,=20 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=20 practice in the United States," says Professor Greenleaf, Ev. =A7146 = note, "but in=20 several of the states, remedies somewhat similar in principle have been = provided=20 by statutes."

PERCH, measure. The length of sixteen feet and a half: a pole = or rod=20 of that length. Forty perches in length and four in breadth make an acre = of=20 land.

PERDONATIO UTLAGARIAE, Eng. law. A pardon for a man who, for = contempt=20 in not yielding obedience to the process of the king's courts, is = outlawed, and=20 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,=20 alien enemies, and such foreigners as belonged to nations with which the = Romans=20 bad not established relations. Sav. Dr. Rom. =A766.

PEREMPTORY. Absolute; positive. A final determination to act = without=20 hope of renewing or altering. Joined to a substantive, this word is = frequently=20 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=20 undertaking; 3 Chit. Pract. 112, 793; peremptory challenge of jurors, = which is=20 the right to challenge without assigning any cause. Inst. 4, 13, 9 Code, = 7, 50,=20 2; Id. 8, 36, 8; Dig. 5, 1, 70 et 73.

PEREMPTORY DEFENCE, equity, pleading. A defence which insists = that the=20 plaintiff never had the right to institute the suit, or that if he had, = the=20 original right is extinguished or determined. 4 Bouv. Inst. n. 4206. =

PEREMPTORY PLEA, pleading. A plea which denies the plaintiff's = cause=20 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=20 may be enforeed by law, which are called perfect, from those which = cannot be so=20 enforced, which are said to be im perfect. Vide Imperfect; Obligations. =

PERFIDY The act of one who has engaged his faith to do a = thing, and=20 does not do it, but does the contrary. Wolff, =A7390.

PERFORMANCE. The act of doing something; the thing done is = also called=20 a performance; as, Paul is exonerated from the obligation of his = contract by its=20 performance.

2. When it contract has been made by parol, which, under the statute = of=20 frauds and perjuries, could not be enforced, because it was not in = writing, and=20 the party seeking to avoid it, has received the whole or a part = performance of=20 such agreement, he cannot afterwards avoid it; 14 John. 15; S. C. 1 = John. Ch. R.=20 273; and such part performance will enable the other party to prove it = aliunde.=20 1 Pet. C. C. R. 380; 1 Rand. R. 165; 1 Blackf. R. 58; 2 Day, R. 255; 1 = Desaus.=20 R. 350; 5 Day, R. 67; 1 Binn. R. 218; 3 Paige, R. 545; 1 John. Ch. R. = 131, 146.=20 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=20 exception that the carrier shall not be liable for "perils of the sea." = What is=20 the precise import of this phrase is not perhaps very exactly settled. = In a=20 '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=20 to events not attributable to natural causes. For instance, they have = been held=20 to include a capture by pirates on the high sea and a case of loss by = collision=20 by two ships, where no blame is imputable to either, or at all events = not to the=20 injured ship. Abbott on Sh. P. 3, C. 4 =A71, 2, 3, 4, 5, 6; Park. Ins. = c, 3;=20 Marsh. Ins. B. 1, c. 7, p. 214; 1 Bell's Comm. 579; 3 Kent's Comm. 251 = n. (a); 3=20 Esp. R. 67.

2. It has indeed been said, that by perils of the sea are properly = meant no=20 other than inevitable perils or accidents upon the sea, and, that by = such perils=20 or accidents common carriers are, prima facie, excused, whether there be = a bill=20 of lading containing the expression of "peril of the sea," or not. 1 = Conn. Rep.=20 487.

3. It seems that the phrase perils of the sea, on the western waters = of the=20 United States, signifies and includes perils of the river. 3 Stew. & = Port.=20 176.

4. If the law be so, then the decisions upon the meaning of these = words=20 become important in a practical view in all cases of maritime or water = carriage.=20

5. It seems that a loss occasioned by leakage, which is caused by = rats=20 gnawing a hole in the bottom of the vessel, is not, in the English law, = deemed a=20 loss by peril of the sea, or by inevitable casualty. 1 Wils. R. 281; 4 = Campb. R.=20 203. But if the master had used all reasonable precautions to prevent = such loss,=20 as by having a cat on board, it seems agreed, it would be a peril of the = sea, or=20 inevitable accident. Abbott on Shipp. p. 3, c. 3, =A79; but see 3 Kent's = Comm.=20 243, and note c. In conformity to this rule, the destruction of goods at = sea by=20 rats has, in Pennsylvania, been held a peril of the sea, where there has = been no=20 default in the carrier. 1 Binn. 592. But see 6 Cowen, R. 266, and 3 = Kent's Com.=20 248, n. c. On the other hand, the destruction of a ship's bottom by = worms in the=20 course of a voyage, has, both in America and England, been deemed not to = be a=20 peril of the sea, upon the ground, it would seem, that it is a loss by = ordinary=20 wear and decay. Park. on Ins. c. 3; 1 Esp. R. 444; 2 Mass. R. 429 but = see 2=20 Cain. R. 85. See generally, Act of God; Fortuitous Event;. Marsh. Ins. = eh. 7;=20 and ch. 12, =A71.; Hildy on Mar. Ins. 270.

PERIPHRASIS. Circumlocution; the use of other words to express = the=20 sense of one.

2. Some words are so technical in their meaning that in charging = offences in=20 indictments they must be used or the indictment will not be sustained; = for=20 example, an indictment for treason must contain the word traitorously; = (q. v.)=20 an indictment for burglary, burglariously; ( q. v.) and feloniously (q. = v.) must=20 be introduced into every indictment for felony. 1 Chitty's Cr. Law, 242; = 3 Inst.=20 15; Carth. 319; 2 Hale , P. C. 172; 184;, 4 Bl. Com. 307; Hawk B. 2, c. = 25, s.=20 55; 1 East P. C. 115; Bac. Ab. Indictment, G 1; Com. ]Dig. Indictment, G = 6 Cro.=20 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=20 presumption arises that one perished before the other. Vide Death. = Survivorship.=20

PERISHABLE GOODS, Goods which are lessened in value and become = worse=20 by being kept. Vide Bona Peritura.

PERJURY, crim. law. This offence at common law is defined to = be a=20 wilful false oath, by one who being lawfully required to depose the = truth in any=20 judicial proceedings, swears absolutely in a matter material to the = point in=20 question, whether he be believed or not.

2. If we analyze this definition we will find, 1st. That the oath = must be=20 wilful. 2d. That it must be false. 3d. That the party was lawfully = sworn. 4th.=20 That the proceeding was judicial. 6th. That the assertion was absolute. = 6th.=20 That the falsehood was material to the point in question.

3. - 1. The intention must be wilful. The oath must be taken and the=20 falsehood asserted with deliberation, and a consciousness of the nature = of the=20 statement made; for if it has arisen in consequence of inadvertency, = surprise or=20 mistake of the import of the question, there was no corrupt motive; = Hawk. B. 1,=20 c. 69, s. 2; but one who swears wilfully and deliberately to a matter = which he=20 rashly believes, which is false, and which he had no probable cause for=20 believing, is guilty of perjury. 6 Binn. R. 249. See 1 Baldw. 370; 1 = Bailey, 50.=20

4. - 2. The oath must be false. The party must believe that what he = is=20 swearing is fictitious; for, if intending to deceive, he asserts that = which may=20 happen to be true, without any knowledge of the fact, he is equally = criminal,=20 and the accidental truth of his evidence will not excuse him. 3 Inst. = 166 Hawk.=20 B. 1, c. 69, s. 6.

5. - 3. The party must be lawfully sworn. The person by whom the oath = is=20 administered must have competent authority to receive it; an oath, = therefore,=20 taken before a private person, or before an officer having no = jurisdiction, will=20 not amount to perjury. 3 Inst. 166; 1 Johns. R. 498; 9 Cowen, R. 30; 3 = M'Cord,=20 R. 308; 4 M'Cord, It. 165; 2 Russ. on Cr. 520; 3 Carr. & Payne, 419; = S. C.=20 14 Eng. Com. Law Rep. 376; 2 Chitt. Cr. Law, 304; 4 Hawks, 182; 1 N. = & M.=20 546; 3 M'Cord, 308; 2 Hayw. 56; 8 Pick. 453.

6. - 4. The proceedings must be judicial. Proceedings before those = who are in=20 any way entrusted with the administration of justice, in respect of any = matter=20 regularly before them, are considered as judicial for this purpose. 2 = Chitt.=20 Crim. C. 303; 2 Russ. on Cr. 518; Hawk. B. 1, c. 69, s. 3. Vide 3 = Yeates, R.=20 414; 9 Pet. Rep. 238. Perjury cannot therefore be committed in a case of = which=20 the court had no jurisdiction. 4 Hawks, 182; 2 Hayw. 56; 3 M'Cord, 308; = 8 Pick.=20 453: 1 N. & McC. 546.

7. - 5. The assertion must be absolute. If a man, however, swears = that he=20 believes that to be true which he knows to be false, it will be perjury. = 2 Russ.=20 on Cr. 518; 3 Wils. 427; 2 Bl. Rep. 881; 1 Leach, 242; 6 Binn. Rep. 249; = Lofft's=20 Gilb. Ev. 662.

8. - 6. The oath must be material to the question depending. Where = the facts=20 sworn to are wholly foreign from the purpose and altogether immaterial = to the=20 matter in question, the oath does not amount to a legal perjury. 2 = Russel on Cr.=20 521; 3 Inst. 167; 8 Ves. jun. 35; 2 Rolle, 41, 42, 369; 1 Hawk. B. 1, c. = 69, s.=20 8; Bac. Ab. Perjury, A; 2 N. & M. 118; 2 Mis. R. 158. Nor can = perjury be=20 assigned upon the valuation under oath, of a jewel or other thing, the = value of=20 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=20 the general government, or the several states on the subject of perjury. = It is=20 proper, however, here to transcribe a part of the 13th section of the = act of=20 congress of March 3, 1825, which provides as follows: "If any person in = any=20 case, matter, bearing, or other proceeding, when an oath or affirmation = shall be=20 required to be taken or administered under or by any law or laws of the = United=20 States, shall, upon the taking of such oath or affirmation, knowingly = and=20 willingly swear or affirm falsely, every person, so offending, shall be = deemed=20 guilty of perjury, and shall, on conviction thereof, be punished by = fine, not=20 exceeding two thousand dollars, and by imprisonment and confinement to = bard=20 labor, not exceeding five years, according to the aggravation of the = offence.=20 And if any person or persons shall knowingly or willingly procure any = such=20 perjury to be committed, every person so offending shall be deemed = guilty of=20 subornation of perjury, and shall on conviction thereof, be punished. by = fine,=20 not exceeding two thousand dollars, and by imprisonment and confinement = to bard=20 labor, not exceeding five years, according to the aggravation of the = offence."=20

10. In general it may be observed that a perjury is committed as well = by=20 making a false affirmation, as a false oath. Vide, generally, 16 Vin. = Abr. 307;=20 Bac. Abr. h. t.; Com. Dig. Justices of the Peace, B 102 to 106; 4 Bl. = Com. 137=20 to 139; 3 Inst. 163 to 168; Hawk. B. 1, c. 69; Russ. on Cr. B. 5, c. 1; = 2 Chitt.=20 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=20 committed on several days, and are in their nature capable of renewal or = continuation, and are actually renowed or continued from day to day, so = that the=20 particular injury, done on each particular day, cannot be distinguished = from=20 what was done on another day, these wrongs are called permanent = trespasses. in=20 declaring for such trespasses they may be laid with a continuando. 3 Bl. = Com.=20 212; Bac. Ab. Trespass, B 2; Id. 1 2; 1 Saund. 24, n. 1. Vide = Continuando;=20 Trespass.

PERMISSION. A license to do a thing; an authority to do an act = which=20 without such authority would have been unlawful. A permission differs = from a=20 law, it is a cheek upon the operations of the law.

2. Permissions are express or implied. 1. Express permissions = derogate from=20 something which before was forbidden, and may operate in favor of one or = more=20 persons, or for the performance of one or more acts, or for a longer or = shorter=20 time. 2. Implied, are those, which arise from the fact that the law has = not=20 forbidden the act to be done. 3. But although permissions do not operate = as=20 laws, in respect of those persons in whose favor they are granted; yet = they are=20 laws as to others. See License.

PERMISSIVE. Allowed; that which may be done; as permissive = waste,=20 which is the permitting real estate to go to waste; when a tenant is = bound to=20 repair he is punishable for permissive waste. 2 Bouv. Inst. n. 2400. See = Waste.=20

PERMIT. A license or warrant to do something not forbidden = bylaw; as,=20 to land goods imported into the United States, after the duties have = been paid=20 or secured to be paid. Act of Cong. of 2d March, 1799, s. 49, cl. 2. See = form of=20 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=20 indispensable; for, without it, it mere agreement. Dig. 31, 77, 4; Code, = 4, 64,=20 3.

3. Permutation differs from sale in this, that in the former a = delivery of=20 the articles sold must be made, while in the latter it is unnecessary. = It agrees=20 with the contract of sale, however, in the following particulars: 1. = That he to=20 whom the delivery is made acquires the right or faculty of prescribing. = Dig. 41,=20 3, 4, 17. 2. That the contracting parties are bound to guaranty to each = other=20 the title of the things delivered. Code, 4, 64, 1. 3. That they are = bound to=20 take back the things delivered, when they have latent defects which they = have=20 concealed. Dig. 21, 1, 63. See Aso & Man. Inst. B. 2, t. 16, c. 1; = Nutation;=20 Transfer.

PERNANCY. This word, which is derived from the French prendre, = to=20 take, signifies a taking or receiving.

PERNOR OF PROFITS. He who receives the profits of lands, = &c. A=20 cestui que use, who is legally entitled and actually does receive the = profits,=20 i's the pernor of profits.

PERPETUAL. That which is to last without limitation as to = time; as, a=20 perpetual statute, which is one without limit as to time, although not = expressed=20 to be so.

PERPETUATING TESTIMONY. The act by which testimony is reduced = to=20 writing as prescribed by law, so that the same shall be read in evidence = in some=20 suit or legal proceedings to be thereafter instituted. The origin of = this=20 practice may be traced to the canon law cap. 5, it ut lite non = contestata,=20 &c., et ibi. Bockmer, n. 4; 8 Toull. n. 22. Vide Bill to perpetuate=20 testimony.

PERPETUITY, estates. Any limitation tending to take the = subject of it=20 out of commerce for a longer period than a life or lives in being, and=20 twenty-one years beyond; and in case of a posthumous child, a few months = more,=20 allowing for the term of gestation; Randell on Perpetuities, 48; or it = is such a=20 limitation of property as renders it unalienable beyond the period = allowed by=20 law. Gilbert on Uses, by Sugden, 260, note.

2. Mr. Justice Powell, in Scattergood v. Edge, 12 Mod. 278, = distinguished=20 perpetuities into two sorts, absolute and qualified; meaning thereby, as = it is=20 apprehended, a distinction between a plain, direct and palpable = perpetuity, and=20 the case where an estate is limited on a contingency, which might happen = within=20 a reasonable compass of time, but where the estate nevertheless, from = the nature=20 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=20 lead to a better understanding or explanation of the subject; for = whether an=20 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=20 compass of time, it equally falls within the line of perpetuity and the=20 limitation is therefore void; for it is not sufficient that an estate = may vest=20 within the time allowed, but the rule requires that it must. Randell on = Perp.=20 49. Vide Cruise, Dig. tit. 32, c. 23; 1 Supp. to Ves. Jr. 406; 2 Ves. = Jr. 357; 3=20 Saund. 388 h. note; Com. Dig. Chancery, 4 G 1; 3 Chan. Cas. 1; 2 Bouv. = Inst. n.=20 1890.

PERQUISITES. In its most extensive sense, perquisites = signifies=20 anything gotten by industry, or purchased with money, different from = that which=20 descends from a father or ancestor. Bract. lib. 2, c. 30, n. 8; et lib. = 4, c.=20 22. In a more limited sense it means something gained by a place or = office=20 beyond the regular salary or fee.

PERSON. This word is applied to men, women and children, who = are=20 called natural persons. In law, man and person are not = exactly-synonymous terms.=20 Any human being is a man, whether he be a member of society or not, = whatever may=20 be the rank he holds, or whatever may be his age, sex, &c. A person = is a man=20 considered according to the rank he holds in society, with all the = rights to=20 which the place he holds entitles him, and the duties which it imposes. = 1 Bouv.=20 Inst. n. 137.

2. It is also used to denote a corporation which is an artificial = person. 1=20 Bl. Com. 123; 4 Bing. 669; C. 33 Eng. C. L R. 488; Wooddes. Lect. 116; = Bac. Us.=20 57; 1 Mod. 164.

3. But when the word "Persons" is spoken of in legislative acts, = natural=20 persons will be intended, unless something appear in the context to show = that it=20 applies to artificial persons. 1 Scam. R. 178.

4. Natural persons are divided into males, or men; and females or = women. Men=20 are capable of all kinds of engagements and functions, unless by reasons = applying to particular individuals. Women cannot be appointed to any = public=20 office, nor perform any civil functions, except those which the law = specially=20 declares them capable of exercising. Civ. Code of Louis. art. 25.

5. They are also sometimes divided into free persons and slaves. = Freemen are=20 those who have preserved their natural liberty, that is to say, who have = the=20 right of doing what is not forbidden by the law. A slave is one who is = in the=20 power of a master to whom he belongs. Slaves are sometimes ranked not = with=20 persons but things. But sometimes they are considered as persons for = example, a=20 negro is in contemplation of law a person, so as to be capable of = committing a=20 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=20 viewed with regard to their political rights. When they are considered = in=20 relation to their civil rights, they are living or civilly dead; vide = Civil=20 Death; outlaws; and infamous persons.

7. Persons are divided into legitimates and bastards, when examined = as to=20 their rights by birth.

8. When viewed in their domestic relations, they are divided into = parents and=20 children; hushands and wives; guardians and wards; and masters and = servants son,=20 as it is understood in law, see 1 Toull. n. 168; 1 Bouv. Inst. n. 1890, = note.=20

PERSONABLE. Having the capacities of a person; for example, = the=20 defendant was judged personable to maintain this action. Old Nat. Brev. = 142.=20 This word is obsolete.

PERSONAL. Belonging to the person.

2. This adjective is frequently employed in connection with = substantives,=20 things, goods, chattels, actions, right, duties, and the like as = personal=20 estate, put in opposition to real estate; personal actions, in = contradistinction=20 to real actions; personal rights are those which belong to the person; = personal=20 duties are those which are to be performed in person.

PERSONAL ACTIONS. Personal actions are those brought for the = specific=20 goods and chattels; or for damages or other redress for breach of = contract or=20 for injuries of every other description; the specific recovery of lands, = tenements and hereditaments only excepted. Vide Actions, and 1 Com. Dig. = 206,=20 450; 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=20 personal; it consists of things temporary and movable, and includes all = subjects=20 of property not of a freehold nature, nor descendable to the heirs at = law.=20 Things of a movable nature, when a right can be had in them, are = personal=20 property, but some things movable are not the subject of property; as = light and=20 air. Under the term personal property, is also included some property = which is=20 in its nature immovable, distinguished by the name of chattels real, as = an=20 estate for years; and fixtures (q . v.) are sometimes classed among = personal=20 property. A crop growing in the ground is considered personal property. = so far=20 as not to be considered an interest in land, under the statute of = frauds. 11=20 East, 362; 1 Shopl. 337; 5 B & C. 829; 10 Ad. & E. 753; 9 B. = & C.=20 561; sed vide 9 B. & C. 561.

2. It is a general principle of American law, that stock held in=20 corporations, is to be considered as personal property; Walk. Introd. = 211; 4=20 Dane's Ab. 670; Sull. on Land Tit. 71; 1 Hill. Ab. 18; though it was = held that=20 such stock was real estate; 2 Conn. R. 567; but, this being found = inconvenient,=20 the law was changed by the legislature.

3. Property in personal chattels is either absolute or qualified; = absolute,=20 when the owner has a complete title and full dominion over it; = qualified, when=20 -he has a temporary or special interest, liable to be totally divested = on the=20 happening of some particular event. 2 Kent, Com. 281.

4. Considered in relation to its use, personal property is either in=20 possession, that is, in the actual enjoyment of the owner, or, in = action, that=20 is, not in his possession, but in the possession of another, and = recoverable by=20 action.

5. Title to personal property is acquired. 1st. By original = acquisition by=20 occupancy; as, by capture in war; by finding a lost thing. 2d. By = original=20 acquisition; by accession. 3d. By original acquisition, by intellectual = labor;=20 as, copyrights and patents for inventions. 4th. IV transfer, which is by = act of=20 law. 1. By forfeiture. 2. By judgment. 3. By insolvency. 4. By = intestacy. 5th.=20 By transfer, by act of the party. 1 . Gifts. 2. Sale. Vide, generally, = 16 Vin.=20 Ab. 335; 8 Com. Dig. 474; Id. 562; 1 Supp. to Ves. Jr. 49, 121, 160, = 198, 255,=20 368, 9, 399, 412, 478; 2 Ibid. 10, 40, 129, 290, 291, 341; 1 Vern. 3, = 170, 412;=20 2 Salk. 449; 2 Ves. Jr. 59, 336, 176, 261, 271, 683; 7 Ves. 453. See = Pew;=20 Property; Real property.

PERSONAL REPRESENTATIVES. These words are construed to mean = the=20 executors or administrators of the person deceased. 6 Mad. R. 159; 2 = Mad. R.=20 155; 5 Ves. 402; 1 Madd. Ch. 108.

PERSONAL SECURITY. The legal and uninterrupted enjoyment by a = man of=20 his life, his body, his health and his reputation. 1 Bouv. Inst. n. 202. =

PERSONALITY OF LAWS. Those laws which regulate the condition, = state,=20 or capacity of persons. The term is used in opposition to those laws = which=20 concern property, whether real or personal, and things. See Story, = Confl. of L.=20 23; and Reality of laws.

PERSONAITY. An abstract of personal; as, the action is in the=20 personalty, that is, it is brought against a person for a personal duty = which he=20 owes. It also signifies what belongs to the person; as, personal = property.

TO PERSONATE, crim. law. The act of assuming the character of = another=20 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=20 than a cheat or misdemeanor at common law, and punishable as such. 2 = East, P. C.=20 1010; 2 Russ. on Cr. 479.

3. By the act of congress of the 30th April, 1790, s. 15, 1 Story's = Laws U.=20 S. 86, it is enacted, that " if any person shall acknowledge, or procure = to be=20 acknowledged in any court of the United States, any recognizance, bail = or=20 judgment, in the name or names of any other person or persons not privy = or=20 consenting to the same, every such person or persons, on conviction = thereof,=20 shall be fined not exceeding five thousand dollars, or be imprisoned not = exceeding seven years, and whipped not exceeding thirty-nine stripes, = Provided=20 nevertheless. that this act shall not extend to the acknowledgment of = any=20 judgment or judgments by any attorney or attorneys, duly admitted, for = any=20 person or persons against whom any such judgment or judgments shall be = bad or=20 given." Vide, generally, 2 John. Cas. 293; 16 Vin. Ab. 336; Com. Dig. = Action on=20 the case for a deceit, A 3.

TO PERSUADE, PERSUADING. To persuade is to induce to act: = persuading=20 is inducing-others to act. lnst. 4, 6, 23; Dig. 11, 3, 1, 5.

2. In the act of the legislature which declared that " if any person = or=20 persons knowingly and willingly shall aid or assist any enemies at open = war with=20 this state, &c. by persuading others to enlist for that purpose, = &c., he=20 shall be adjudged guilty of high treason;" the word persuading, thus = used; means=20 to succeed: and there must be an actual enlistment, of the person = persuaded in=20 order to bring the, defendant within the intention of the clause. 1 = Dall. R. 39;=20 Carr. Crim. L 237; 4 Car. & Payne, 369 S. C. 1 9 E. C L. R. 425; 9 = Car.=20 & P. 79; and article Administering; vide 2 Lord Raym. 889. It may be = fairly=20 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=20 commit suicide, is not a crime for which the party could be tried. 9 C. = & P.=20 79; 38 E. C. L. R. 42; M. C. C. 356. Vide Attempt; Solicitation.

PERSUASION. The act of influencing by expostulation or = request. While=20 the persuasion is confined within those limits which leave the mind = free, it may=20 be used to induce another to make his will, or even to make it in his = own favor;=20 but if such persuasion should so far operate on the mind of the = testator, that=20 he would be deprived of a perfectly free will, it would vitiate the = instrument.=20 3 Serg. & Rawle, 269; 5 Serg. & Rawle, 207; 13 Serg. & = Rawle, 323.=20

PERTINENT, evidence. Those facts which tend to prove the = allegations=20 of the party offering them, are called pertinent; those which have no = such=20 tendency are called impertinent, 8 Toull. n. 22. By pertinent is also = meant that=20 which belongs. Willes, 319.

PERTURBATION. This is a technical word which signifies = disturbance, or=20 infringement of a right. It is usually applied to the disturbance of = pews, or=20 seats in a church. In the ecclesiastical courts actions for these = disturbances=20 are technically called "suits for perturbation of seat." 1 Phillim. 323. = Vide=20 Pew.

PESAGE, mer. law. In England a toll bearing this name is = charged for=20 weighing avoirdupois goods other than wool. 2 Chit. Com. Law. 16.

PETIT, sometimes corrupted into petty. A French word = signifying=20 little, small. It is frequently used, as petit larceny, petit jury, = petit=20 treason.

PETIT, TREASON, English law. The killing of a master by his = servant; a=20 hushand by his wife; a superior by a secular or religious man. In the = United=20 States this is like any other murder. See High, Treason; Treason.

PETITION. An instrument of writing or printing containing a = prayer=20 from the person presenting it, called the petitioner, to the body or = person to=20 whom it is presented, for the redress of some wrong, or the grant of = some favor,=20 which the latter has the right to give.

2. By the constitution of the United States the right "to petition = the=20 government for a redress of grievances," is secured to the people. = Amendm. Art.=20 1.

3. Petitions are frequently presented to the courts in order to bring = some=20 matters before them. It is a general rule, in such cases, that an = affidavit=20 should be made that the facts therein contained are true as far as known = to the=20 petitioner, and that those facts which he states as knowing from others = be=20 believes to be true.

PETITION OF RIGHT, Eng. law. When the crown is in possession, = or any=20 title is vested in it which is claimed by a subject, as no suit can be = brought=20 against the king, the subject is allowed to file in chancery a petition = of right=20 to the king.

2. This is in the, nature of an action against a subject, in which = the=20 petitioner sets out his right to tbat which is demanded by him, and = prays the=20 king to do him right and justice; and, upon a due and lawful trial of = the right,=20 to make him restitution. It is called a petition of right, because the = king is=20 bound of right to answer it, and let the matter therein contained be = determined=20 in a legal way, in like manner as causes between subject and subject. = The=20 petition is presented to the king, who subscribes it, with these words, = soit=20 droit fait al partie, and thereupon it is delivered to the chancellor to = be=20 executed according to law. Coke's Entr. 419, 422 b; Mitf. Eq. Pl. 30, = 31; Coop.=20 Eq. Pl. 22, 23.

PETITORY. That which demands or petitions that which has, the, = quality=20 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=20 to property is to be enforced by means of a demand or petition, as=20 distin-guished from a possessory suit. 1 Kent, Com. 371.

3. In the Scotch law, petitory actions are so called, not because = something=20 is sought to be awarded by the judge, for in that sense all actions must = be=20 petitory, but because some demand is made upon the defender, in = consequence=20 either of the right of property or credit in the pursuer. Thus, actions = for=20 restitution of movables, actions of pounding, of forthcoming, and indeed = all=20 personal actions upon contracts, or quasi contracts, which the Romans = called=20 condictiones, are petitory. Ersk. Inst. b. 4, t. 1, n. 47.

PETTY AVERAGE. A contribution by the owners of the ship, = freight and=20 goods on board, for losses sustained by the ship and cargo, which = consist of=20 small charges. Vide Average.

PETTY BAG, Engl. law. An office in the court of chancery, = appropriated=20 for suits against attorneys and officers of the court; and for, process = and=20 proceedings, by extent on statutes, recognizances, ad quod damnum and = the like.=20 T. de la Ley.

PETTIFOGGER. One who pretends to be a lawyer, but possessing = neither=20 knowledge, law, nor conscience.

PEW. A seat in a church separated from all others, with a = convenient=20 space to stand therein.

2. It is an incorporeal interest in the real property. And, although = a man=20 has the exclusive right to it, yet, it seems, he cannot maintain = trespass=20 against a person entering it; 1 T. R. 430; but case is the proper = remedy. 3 B.=20 & 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=20 the right of the parish or congregation to pull down and rebuild the = church. 4=20 Ohio R 541; 5 Cowen's R. 496; 17 Mass. R. 435; 1 Pick. R. 102; 3 Pick. = R. 344; 6=20 S. & R. 508; 9 Wheat. R. 445; 9 Cranch, R. 52; 6 John. R. 41; 4 = Johns. Ch.=20 R. 596; 6 T. R. 396. Vide Pow. Mortgages, Index, h. t.; 2 Bl. Com. 429; = 1 Chit.=20 Pr. 208, 210; 1 Pow. Mort. 17 n.

4. In Connecticut and Maine, and in Massachusetts, (except in = Boston), pews=20 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=20 such property does not appear to be well settled in New York. 15 Wend. = R. 218;=20 16 Wend. R. 28; 5 Cowen's R. 494. See Rev. St. Mass. 413; Conn. L. 432; = 10 Mass.=20 R. 323 17 Mass. 438; 7 Pick. R. 138; 4 N. H. Rep. 180; 4 Ohio R. 515; 4 = Harr.=20 & McHen. 279; Harr. Dig. Ecclesiastical Law. Vide Perturbation of = seat; Best=20 on Pres. 111; Crabb on R. P. =A7481 to 497.

PHAROS. A light-house or beacon. It is derived from Phams, a = small=20 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=20 for his services. 5 Serg. & Rawle, 416. The law implies, therefore, = a=20 contract on the part of a medical man, as well as those of other = professions, to=20 discharge their duty in a skillful and attentive manner; and the law = will=20 redress the party injured by their neglect or ignorance. 1 Saund. 312, = R; 1 Ld.=20 Raym. 213; 2 Wils. 359; 8 East, 348.

4. They are sometimes answerable criminally for mala praxis. (q. v.) = 2 Russ.=20 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=20 animals; it is the science of life.

2. The legal practitioner who expects to rise to eminence, must = acquire some=20 acquaintance with physiology. This subject is intimately connected with=20 gestation, birth, life and death. Vide 2 Chit. Pr. 42, n.

PIGNORATION, civil law . This word is used by Justinian in the = title=20 of the 52d novel, and signifies not only a pledge of property, but an = engagement=20 of the person.

PICKPOCKET. A thief; one who in a crowd or. in other places, = steals=20 from the pockets or person of another without putting him in fear. This = is=20 generally punished as simple larceny.

PIGNORATIVE CONTRACT, civ. law. A contract by which the owner = of an=20 estate engages it to another for a sum of money, and grants to him and = his=20 successors the right to enjoy it, until he shall be reimbursed, = voluntarily,=20 that sum of money. Poth. h. t.

PIGNORIS CAPIO, ROM. civil law. The name given to one of the = legis=20 actiones of the Roman law. It consisted chiefly in the taking. of a = pledge, and=20 was in fact a mode of execution. It was confined to special cases = determined by=20 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=20 place in the presence of a praetor.

PIGNUS, civil law. This word signifies in English, pledge or = pawn. (q.=20 v.) It is derived, says Gaius, from pugnium, the fist, because what is = delivered=20 in pledge is delivered. in hand. Dig. 50, 16, 238, 2. This is one of = several=20 instances of the failure of the Roman jurists, when they attempted = etymological=20 explanation of words. The elements of pignus (pig) is contained in the = word=20 pa(n)g-o, and its cognate forms. Smith's Dict. Gr. and Rom. Antiq. h. v. =

PILLAGE. The taking by violence of private property by a = victorious=20 army from the citizens or subjects of the enenly. This, in modern times, = is=20 seldom allowed, and then, only when authorized by the commander or chief = officer, at the place where the pillage is committed. The property thus=20 violently taken in general belongs to the common soldiers. See Dall. = Dict.=20 Propriete, art. 3, =A75; Wolff, =A71201; and Booty; Prize.

PILLORY, punishment. wooden machine in which the neck of the = culprit=20 is inserted.

2. This punishment has been superseded by the adoption of the = penitentiary=20 system in most of the states. Vide 1 Chit. Cr. Law, 797. The punishment = of=20 standing in the pillory, so far as the same was provided by the laws of = the=20 United States, was abolished by the act of congress of February 27, = 1839, s. 5.=20 See Baxr. on the Stat. 48, note.

PILOT, mer. law. This word has two meanings. It signifies, = first, an=20 officer serving on board of a ship during the course of a voyage, and = having the=20 charge of the helm and of the ship's route; and, secondly, an officer = authorized=20 by law, who is taken on board at a particular place, for the purpose of=20 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=20 at the principal seaports in this country, and have rights, and are = bound to=20 perform duties, agreeably to the provisions of the several laws = establishing=20 them.

3. Pilots have been established in all maritime countries. After due = trial=20 and experience of their qualifications, they are licensed to offer = themselves as=20 guides in difficult navigation; and they are usually, on the other hand, = bound=20 to obey the call of a ship-master to exercise their functions. Abbott on = Ship.=20 180; 1 John R. 305; 4 Dall. 205; 2 New R. 82; 5 Rob. Adm. Rep. 308; 6 = Rob. Adm.=20 R. 316; Laws of Oler. art. 23; Molloy, B. 2, c. 9, s. 3 and 7; Wesk. = Ins. 395;=20 Act of Congress of 7th August, 1789, s. 4; Merl. Repert. h. t.; = Pardessus, n.=20 637.

PILOTAGE, contracts. The compensation given to a pilot for = conducting=20 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=20 master or quasi master of the ship, or some other person lawfully = authorized to=20 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.=20 108; and see 1 Pet. Adm. Dec. 227.

PIN MONEY. Money allowed by a man to his wife to spend for her = own=20 personal comforts.

2. When pin money is given to, but not spent by the wife, on his = death it=20 belongs to his estate. 4 Vin. Ab. 133, tit'. Baron and Feme, E a. 8; 2 = Eq. Cas.=20 Ab. 156; 2 P. Wms. 341; 3 P. Wms. 353; 1 Ves. 267; 2 Ves. 190; 1 Madd. = Ch. 489,=20 490.

3. In the French law the term Epingles, pins, is used to designate = the=20 present which is sometimes given by the purchaser of an immovable to the = wife or=20 daughters of the seller to induce them to consent to the sale. This = present is=20 not considered as a part of the consideration, but a purely voluntary = gift.=20 Diet. de Jur. mot Epingles.

4. In England it was once adjudged that a promise to a wife, by the=20 purchaser, that if she would not hinder the bargain for the sale of the=20 hushand's lands, he would give her ten pounds, was valid, and might be = enforeed=20 by an action of assumpsit, instituted by hushand and wife. Roll. Ab. 21, = 22. 5.=20 It has been conjectured that the term pin money, has been applied to = signify the=20 provision for a married woman, because anciently there was a tax laid = for=20 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=20 gallon.

PIPE, Eng. laid. The name of a roll in the exchequer otherwise = called=20 the Great Roll. A measure containing two hogsheads; one hundred and = twenty-six=20 gallons is also called a pipe.

PIRACY, crim. law. A robbery or forcible depreciation on the = high=20 seas, without lawful authority, done animo furandi, in the spirit and = intention=20 of universal hostility. 5 Wheat. 153, 163; 3 Wheat. 610; 3 Wash. C. C. = R. 209.=20 This is the definition of this offence by the law of nations. 1 Kent, = Com. 183.=20 The word is derived from peira deceptio, deceit or deception: or from = peiron=20 wandering up and down, and resting in no place, but coasting hither and = thither=20 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=20 offences against the law of nations. Const. U. S. Art. 1, s. 7, n. 10; 5 = Wheat.=20 184, 153, 76; 3 Wheat. 336. In pursuance of the authority thus given by = the=20 constitution, it was declared by the act of congress of April 30, 1790, = s. 8, 1=20 Story's Laws U. S. 84, that murder or robbery committed on the high = seas, or in=20 any river, haven, or bay, out of the jurisdiction of any particular = state, or=20 any offence, which, if committed within the body of a county, would, by = the laws=20 of the United States, be punishable with death, should be adjudged to be = piracy=20 and felony, and punishable with death. It was further declared, that if = any=20 captain or manner should piratically and feloniously run away with a = vessel, or=20 any goods or merchandise of the value of fifty dollars; or should yield = up such=20 vessel voluntarily to pirates; or if any seaman should forcible endeavor = to=20 hinder his commander from defending the ship or goods committed to his = trust, or=20 should make revolt in the ship; every such offender should be adjudged a = pirate=20 and felon, and be punishable with death. Accessaries before the fact are = punishable as the principal; those after the fact with fine and = imprisonment.=20

3. By a subsequent act, passed March 3, 1819, 3 Story, 1739, made = perpetual=20 by the act of May 15, 1820, 1 Story, 1798, congress declared, that if = any person=20 upon the high seas, should commit the crime of piracy as defined by the = law of=20 nations, he should, on conviction, suffer death.

4. And again by the act of May 15, 1820, s. 3, 1 Story, 1798, = congress=20 declared that if any person should, upon the high seas, or in any open=20 roadstead, or in any haven, basin or bay, or in any river where the sea = ebbs and=20 flows, commit the crime of robbery in or upon any ship or vessel, or = upon any of=20 the ship's company of any ship or vessel, or the lading thereof, such = person=20 should be adjudged to be a pirate, and suffer death. And if any person = engaged=20 in any piratical cruise or enterprize, or being of the crew or ship's = company of=20 any piratical ship or vessel, should land from such ship or vessel, and, = on=20 shore; should commit robbery, such person should be adjudged a pirate = and suffer=20 death. Provided that the state in which the offence may have been = committed=20 should not be deprived of its jurisdiction over the same, when committed = within=20 the body of a county, and that the courts of the United States should = have no=20 jurisdiction to try such offenders, after conviction or acquittal, for = the same=20 offence, in a state court. The 4th and 5th sections of the last = mentioned act=20 declare persons engaged in the slave trade, or in forcibly detaining a = free=20 negro or mulatto and carrying him in any ship or vessel into slavery, = piracy,=20 punishable with death. Vide 1 Kent, Com. 183; Beaussant, Code Maritime, = t. 1, p.=20 244; Dalloz, Diet. Supp. h. t.; Dougl. 613; Park's Ins. Index, h. t. = Bac. Ab. h.=20 t.; 16 Vin. Ab. 346; Ayl. Pand. 42 11 Wheat. R. 39; 1 Gall. R. 247; Id. = 524 3 W.=20 C. C. R. 209, 240; 1 Pet. C. C. R. 118, 121.

PIRACY, torts. By piracy is understood the plagiarisms of a = book,=20 engraving or other work, for which a copyright has been taken out. 2. = When a=20 piracy has been made of such a work, an injunction will be granted. 5 = Ves. 709;=20 4 Ves. 681; 12 Ves. 270. Vide copyright.

PIRATE. A sea robber, who, to enrich himself by subtlety or = open=20 force, setteth upon merchants and others trading by sea, despoiling them = of=20 their loading, and sometimes bereaving them of life and, sinking their = ships;=20 Ridley's View of the Civ. and Ecc. Law, part 2, c. 1, s. 8; or more = generally=20 one guilty of the crime of piracy. Merl. Repert. h. t. See, for the = etymology of=20 this word, Bac. Ab. Piracy

PIRATlCALLY, pleadings. This is a technical word, essential to = charge=20 the crime of piracy in an indictment, which cannot be supplied by = another word,=20 or any circumlocution. Hawk. B. 1, c. 37, s. 15; 3 Inst. 112; 1 Chit. = Cr. Law,=20 *244.

PISCARY. The right of fishing in the waters of another. Bac. = Ab. h.=20 t.; 5 Com. Dig. 366. Vide Fishery.

PISTAREEN. A small Spanish coin. It is not a coin made current = by the=20 laws of the United States. 10 Pet. 618.

PIT, fossa. A hole dug in the earth, which was filled with = water, and=20 in which women thieves were drowned, instead of being hung. The = punishment of=20 the pit was formerly common in Scotland.

PLACE, pleading, evidence. A particular portion of space; = locality.=20

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

3. In transitory actions, the place laid in the declaration, need not = be the=20 place where the cause of action arose, unless when required by statute. = In local=20 actions, the plaintiff will be confined in his proof to the county laid = in the=20 declaration.

4. In criminal cases the facts must be laid and proved to have been = committed=20 within the jurisdiction of the court, or the defendant must be = acquitted. 2=20 Hawk. c. 25, s. 84; Arcb. Cr. Pl. 40, 95. Vide, generally, Gould on Pl. = c. 3,=20 102-104; Arcb. Civ. Pl. 366; Hamm. N. P. 462; 1 Saund. 347, n. 1; 2 = Saund. 5 n.=20

PLACE OF BUSINESS. The place where a man usually transacts his = affairs=20 or business. When a man keeps a store, shop, counting room or office,=20 independently and distinctly from all other persons, that is deemed his = place of=20 business 3 and when he usually transacts his business at the counting = house,=20 office, and the like, occupied and used by another, that will also be = considered=20 his place of business, if he has no independent place of his own. But = when he=20 has no particular right to use a place for such private purpose, as in = an=20 insurance office, in exchange room, banking room, a post office, and the = like,=20 where persons generally resort, these will not be considered as the = party's=20 place of business, although he may occasionally or transiently transact = business=20 there. 2 Pet. R. 121; 10 John. 501; 11 John. 231; 1 Pet. S. C. R. 582; = 16 Pick.=20 392.

2. It is a general rule that a notice of the non-acceptance or = non-payment of=20 a bill, or of the non-payment of a note, may be sent either to the = domicil or=20 place of business of the person to be affected by such notice, and the = fact that=20 one is in one town and the other in the other will make no difference, = and the=20 holder has his election to send to either. A notice to partners may be = left at=20 the place of business of the firm or of any one of the partners. Story = on Pr.=20 Notes, =A7312.

PLACITUM. A plea. This word is nomen generalissimum, and = refers to all=20 the pleas in the case. 1 Saund. 388, n. 6; Skinn. 554; S. C. earth. 834; = Yelv.=20 65. By placitum is also understood the subdivisions in abridgments and = other=20 works, where the point decided in a case is set down, separately, and = generally=20 numbered. In citing, it is abbreviated as follows: Vin. Ab. Abatement, = pl. 3.=20

2. Placita, is the style of the English courts at the beginning of = the record=20 of Nisi Prius; in this sense, placita are divided into pleas of the = crown, and=20 common pleas.

3. The word is used by continental writers to signify jurisdictions,=20 judgments, or assemblies for discussing causes. It occurs frequently in = the laws=20 of tae Longobards, in which there is a title de his qui ad, placitum = venire=20 coguntur. The word, it has been suggested, is derived from the German = platz,=20 which signifies the same as area facta. See Const. Car. Mag. Cap. IX. = Hine-mar's=20 Epist. 227 and 197. The common formula in most of the capitularies is = "Placuit=20 atque convenit inter Francos et corum proceres," and hence, says Dupin, = the laws=20 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=20 enjoined, when the original author has a copyright. Vide Copyright; = Piracy;=20 Quotation; Pard. Dr. Com. n. 169.

PLAGIARIUS, civil law. He who fraudulently concealed a freeman = or=20 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=20 that the guilty party intended to make a profit, whereas the plagiarius = did not=20 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=20 of the Romans. Alis. Pr. Cr. Law, 280, 281.

PLAINT, Eng. law. The exhibiting of any action, real or = personal, in=20 writing; the party making his plaint is called the plaintiff.

PLAINTIFF, practice. He who, in a personal action, seeks a = remedy for=20 an injury to his rights. Ham. on Parties, h. t.; 1 Chit. Pl. Index, h. = t.; Chit.=20 Pr. Index, h. t.; 1 Com. Dig. 36, 205, 308.

2. Plaintiffs are legal or equitable. The legal plaintiff is he in = whom the=20 legal title or cause of action is vested. The equitable plaintiff is he = who, not=20 having the legal title, yet, is in equity entitled to the thing sued = for; for=20 example, when a suit is brought by Benjamin Franklin for the use of = Robert=20 Morris, Benjamin Franklin is the legal, and Robert Morris the equitable=20 plaintiff. This is the usual manner of bringing suit, when the cause of = action=20 is not assignable at law, but is so in equity. Vide Bouv. Inst. Index, = h. t.;=20 Parties to Actions.

PLAINTIFF IN ERROR. A party who sues out a writ of error, and = this=20 whether in the court below he was plaintiff or defendant.

PLAN. The delineation or design of a city, a house or houses, = a=20 garden, a vessel, &c. traced on paper or other substance, = representing the=20 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=20 is Sold to a person, with windows and doors in it, the owner of the = others=20 cannot shut up those windows, nor has his grantee any greater right. 1 = Price, R.=20 27; 2 Ry. & Mo. 24; 1 Lev. 122; 2 Saund. 114, n. 4 1 M. & M. = 396; 9 Bing=20 305; 1 Leigh's N. P. 559. See 12 Mass: 159; Hamm. N. P. 202; 2 Hill. Ab. = c. 12,=20 n. 6 to 12; Com. Dig. Action on the case for a nuisance, A. See Ancients = Lights;=20 Windows.

PLANTATIONS. Colonies, (q. v.) dependencies. (q. v.) 1 Bl. = Com. 107.=20 In England, this word, as it is used in St. 12, II. c. 18, is never = applied to,=20 any of the British dominions in Europe, but only to the colonies in the = West=20 Indies and America. 1 Marsh. Ins, B. 1, c. 3, =A72, page 64.

2. By plan tation is also meant a farm.

PLAT. A map of a piece of land, in which are marked the = courses and=20 disstances 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=20 land, and what is included, and may serve to settle the figure of a = survey, and=20 correct mistakes. 5 Monr. 160. See 17 Mass. 211; 5 Greenl. 219; 7 = Greenl, 61; 4=20 Wheat. 444; 14 Mass. 149.

PLEA, chancery practice. "A plea," says Lord Bacon, speaking = of=20 proceedings in courts of equity, "is a foreign matter to discharge or = stay the=20 suit." Ord. Chan. (ed. Beam.) p. 26. Lord Redesdale defines it to be " a = special=20 answer showing or relying upon one or more thisgs as a cause why the = suit should=20 be either dismissed, delayed or barred." Mitf. Tr. Ch. 177; see Coop. = Eq. Pl.=20 223; Beames' Pl. Eq. 1. A plea is a special answer to a bill, and = differs in=20 this from an answer in the common form, as it demands the judgment of = the court=20 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. = &=20 Lef. 721.

2. Pleas are of three sorts: 1. To the jurisdiction of the court. 2. = To the=20 person of the plaintiff. 3. In bar of the plaintiff's suit. Blake's Ch. = Pr. 112.=20 See, generally, Beames' Elem. of Pleas in Eq.; Mitf. Tr. Cha. oh. 2, s. = 2, pt.=20 2; Coop. Eq. Pl. ch. 5; 2 Madd. Ch. Pr. 296 to 331; Blake's Ch. Pr. 112 = to 114;=20 Bouv. Inst. Index, h. t.

PLEA, practice. The defendant's answer by matter of fact, to = the=20 plaintiff's declaration.

2. It is distinguished from a demurrer, which opposes matter of law = to the=20 declaration. Steph. Pl. 62.

3. Pleas are divided into plea dilatory and peremptory; and this is = the most=20 general division to which they are subject.

4. Subordinate to this is another division; they are either to the=20 jurisdiction of the court, in suspension of the action; in abatement of = the=20 writ; or, in bar of the action; the first three of which belong to the = dilatory=20 class, the last is of the peremptory kind. Steph. Pl. 63; 1 Chit. Pl. = 425;=20 Lawes, Pl. 36.

5. The law has prescribed and settled the order of pleading, which = the=20 defendant is to pursue, to wit; 1st. To the jurisdiction of the court. = 2d. To=20 the disability, &c. of the person. 1st. Of thepla'intiff. 2d. Of the = defendant. 3d. To the count or declaration. 4th. To the writ. 1st. To = the form=20 of the writ; first, Matter apparent on the face of it, secondly, Matter = dehors.=20 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,=20 plea admits that there is no foundation for the former. Such is the = English law.=20 1 Ch. Plead. 425. The rule is different with regard to the plea of = jurisdiction=20 in the courts of the United States and those of Pennsylvania. 1. Binn. = 138; ld.=20 219; 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=20 still used in that sense; for example, A B was summoned to answer C D of = a plea=20 that he render, &c. Steph. Pl. 38, 39, u. 9; Warr. Law Studies, 272, = note n.=20

8. - 3. This variable word, to plead, has still another and more = popular use,=20 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.=20

10. Plea in abatement, is when, for any default, the defendant prays = that the=20 writ or plaint do abate, that is, cease against him for that time. Com. = Dig.=20 Abatement, B.

11. Hence it may be observed, 1st. That the defendant may plead in = Abatement=20 for faults apparent on the writ or plaint itself, or for such as are = shown=20 dehors, or out of the writ or plaint. 2d. That a plea in, abatement is = never=20 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=20 and better writ can be adopted; Com. Dig. Abatement, I 1; but if the = plea go to=20 the matter and substance of the writ, &c., he need not give the = plaintiff=20 another writ. Nor need he do so when the plea avoids the whole cause of = the=20 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;=20 thirdly, to the writ. 1 Chit. Pl. 435.

14. - 1. Plea in abatement to the person of the plaintiff. Pleas of = this kind=20 are either that the plaintiff is not in existence, being only a = fictitious=20 person, or dead; or else, that being in existence, he is under some = disability=20 to bring or maintain the action, as by being an alien enemy; Com. Dig.=20 Abatement, E 4 Bac. Abr. Abatement, B 3; 1 Chit. Pl. 436; or the = plaintiff is a=20 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=20 feme covert is sued, and the objection is merely that the hushand ought = to have=20 been sued jointly with her; as when, since entering into the contract, = or=20 committing the tort, she has married; she must, when sued alone, plead = her=20 coverture in abatement, and aver that her hushand is living. 3 T. R. = 627; 1=20 Chit. Pl. 437 , 8.

16. - 2. Plea in abatement to the count. Pleas of this kind are for = some=20 uncertainty, repugnancy, or want of form, not appearing on the face of = the writ=20 itself, but apparent from the recital of it in the declaration only; or = else for=20 some variance between the writ and declaration. But it was always = necessary to=20 obtain oyer of the writ before the pleading of these pleas; and since = oyer=20 cannot now be had of the original writ for the purpose of pleading them, = it=20 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=20 apparent uncertainty, repugnancy, or want of form, variance from the = record,=20 specialty, &c., mentioned therein, or misnomer of the plaintiff or=20 defendant. Lawes' Civ. Pl. 106; 1 Chit. Pl. 440.

18. Plea in abatement to the action of the writ. Pleas of this kind = are=20 pleaded when the action is misconceived, or was prematurely commenced = before the=20 cause of action arose; or when there is another action depending for the = same=20 cause. Tidd's Pr. 579. But as these matters are ground for demurrer or = nonsuit,=20 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=20 declaration, and avoids the effect of them, by some new matter which = shows that=20 the plaintiff is not entitled to maintain his action. For example, the = plea may=20 admit the contract declared upon, and show that it was void or voidable, = because=20 of the inability of one of the parties to make it, on account of = coverture,=20 infancy, or the like. Lawes, Pl. 122.

20. Plea in bar, is one that denies that the plaintiff has any cause = of=20 action. 1 Ch. Pl. 459 Co. Litt. 303 b; 6 Co. 7. Or it is one which shows = some=20 ground for barring or defeating the action; and makes prayer to that = effect,=20 Steph. Pl. 70; Britton, 92. See Bar.

21. A plea in bar is, therefore, distinguished from all pleas of the = dilatory=20 class, as impugning the right of the action altogether, instead of = merely=20 tending to divert the proceedings to another jurisdiction, or suspend = them, or=20 abate the particular writ. It is in short a substantial and conclusive = answer to=20 the action. It follows, from this property, that in general, it must = either deny=20 all, or some essential part of the averments of fact in the declaration; = or,=20 admitting them to be true, allege new facts, which obviate and repel = their legal=20 effect. In the first case the defendant is said, in the language of = pleading, to=20 traverse the matter of the declaration; in the latter, to confess and = avoid it.=20 Pleas in bar are consequently divided into pleas by way of traverse, and = pleas=20 by way of confession and avoidance. Steph. Pl. 70, 71.

22. Pleas in bar are, also divided into general or special. General = pleas in=20 bar deny or take issue either upon the whole or part of the declaration, = or=20 contain some new matter which is relied upon by the defendant in his = defence.=20 Lawes Pl. 110.

23. Special pleas in bar a re very various, according to the = circumstances of=20 the defendant's case; as, in personal actions, the defendant may plead = any=20 special matter in denial, avoidance, discharge, excuse, or justification = of the=20 matter alleged in the declaration, which destroys or bars the = plaintiff's=20 action; or he may plead any matter which estops, or precludes him from = averring=20 or insisting on any matter relied upon by the plaintiff in his = declaration. The=20 latter sort of pleas are called pleas in estoppel. In real actions, the = tenant=20 may plead any matter which destroys and bars the demandant's title; as, = a=20 general release. Id. 115, 116.

24. The general qualities of a plea in bar are, 1. That it be adapted = to the=20 nature and form of the action, and also conformable to the count. Co. = Litt. 303,=20 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;=20 Com. Dig. Pleader, E 1, 36; 1 Saund. 28, n. 1, 2, 3; 2 Bos. & Pull. = 427; 3=20 Bos. & Pull. 174.

3. In the case of a special plea, that it confess and admit the fact. = 3 T. R.=20 298; 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=20 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=20 Dict. Certainty; Pleading.

6. It must be direct, positive, and not argumentative. See 6 Cranch, = 126; 9=20 Johns. It. 313.

7. It must be capable of trial. 8. It must be true and capable of = proof. See=20 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=20 any part of the plea. The surnames only are usually inserted, and that = of the=20 defendant precedes the plaintiff's; as, " Roeats. Doe."

4. The commencement which includes the statement of, 1. The name of = the=20 defendant; 2. The appearance; 3. The defence; see Defence; 4. The actio = non; see=20 dctio non.

5. The body, which may contain, 1. The inducement; 2. The = protestation; 3.=20 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,=20 not the cause of action, but the propriety of the suit, or the mode in = which the=20 remedy is sought.

27. Dilatory pleas are divided by Sir William Blackstone, into three = kinds:=20 1. Pleas to the jurisdiction of the court; as, that the cause of action = arose=20 out of the limits of the jurisdiction of the court, when the action is = local. 2.=20 Pleas to the disability of the plaintiff, or, as they are usually = termed, to'=20 the person of the plaintiff; as, that he is an alien enemy. 3. Pleas in=20 abatement of the writ, or count; these are founded upon some defect or = mistake,=20 either in the writ itself; as, that the defendant is misnamed in it, or = the=20 like; or in the mode in which the count pursues it; as, that there is = some=20 variance or repugnancy between the count and writ; in which case, the = fault in=20 the count furnishes a cause for abating the writ. 2 Bl. Com. 301 Com. = Dig.=20 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=20 contradistinguished to pleas to the action; this is perhaps not strictly = proper,=20 because, though all pleas in abatement are dilatory pleas, yet all = dilatory=20 pleas are not pleas in abatement. Gould on Pl. ch. 2, =A735; vide 1 = Chit. PI, ch.=20 6; Bac. Ab. Abatement, 0; 1 Mass 358; 1 John. Cas. 101. 2. A plea in = discharge,=20 as distinguish ed from a plea in avoidance, is one which admits the = demand, and=20 instead of avoiding the payment or satisfaction of it, shows that it has = been=20 discharged by some matter of fact. Such are pleas of payment, release, = and the=20 like.

30. A plea in excuse, is one which admits the demand or complaint = stated in=20 the declaration, but excuses the non-compliance of the plaintiff's = claim, or the=20 commission of the act of which he complains, on account of the defendant = having=20 done all in his power to satisfy the former, or not having teen the = culpable=20 author of the latter. A plea of tender is an example of the former, and = a plea=20 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=20 pleaded, by showing a want of jurisdiction in that court. 2 Lill. Pr. = Beg. 374;=20 Carth. 402. See the form of the plea in Lill. Ent. 475.

32. A plea of justification is one in which the defendant professes = purpo=20 sely to have done the acts which are the subject of the plaiutiff's = suit, in=20 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,=20 but justified.

33. A plea puis darrein continuance. Under the ancient law, there = were=20 continuances, i. e. adjournments of the proceedings for certain = purposes, from=20 one day or one term to another; and, in such cases, there was an entry = made on=20 the record, expressing the ground of the adjournment, and appointing the = parties=20 to reappear at a given day.

34. In the interval between such continuance and the day appointed, = the=20 parties were of course out of court, and consequently not in a situation = to=20 plead. But it sometimes happened, that after a plea had been pleaded, = and while=20 the parties were out of court, in consequence of such continuance, a new = matter=20 of defence arose, which did not exist, and which the defendant had = consequently=20 no opportunity to plead, before the last continuance. This new defence = he was=20 therefore entitled, at the day given for his reappearance, to plead as a = matter=20 that had happened after the last continuance, puis darrein continuance. = In the=20 same cases that occasioned a continuance in the ancient common Iaw, but = in no=20 other, a continuance shall take place. At the time indeed, when the = pleadings=20 are filed and delivered, no record exists, and there is, therefore, no = entry at=20 that time, made on the record, of the award of a continuance; but the = parties=20 are, from the day when, by the ancient practice, a continuance would = have been=20 entered, supposed to be out of court, and the pleading is suspended, = till the=20 day arrives to which, by the ancient, practice, the continuance would = extend. At=20 that day, the defendant is entitled, if any new matter of defence has = arisen in=20 the interval, to plead it according to the ancient plan, puis darrein=20 continuance.

35. A plea puis darrein continuance is not a departure from, but is a = waiver=20 of the first plea, and is always headed by way of substitution for it, = on which=20 no proceeding is afterwards had. 1 Salk. 178; 2 Stran. 1195 Hob. 81; 4 = Serg.=20 & Rawle, 239. Great certainty is requisite in pleas of this = description.=20 Doct. Pl. 297; Yelv. 141; Cro. Jac. 261; Freem. 112; 2 Lutw. 1143; 2 = Salk. 519;=20 2 Wils. 139; Co. Entr. 517 b. It is not sufficient to say generally that = after=20 the last continuance such a thing happened, but the day of the = continuance must=20 be shown, and also the time and place must be alleged where the matter = of=20 defence arose. Id. ibid.; Bull. N. P. 309.

36. Pleas puis darrein continuance are either in bar or abatement; = Com. Dig.=20 Abatement, I 24; and are followed, like other pleas, by a replication = and other=20 pleadings, till issue is attained upon them such pleas must be verified = on oath=20 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=20 entered for the purpose of delay. There are certain pleas of this kind, = which,=20 in consequence of their having been long and frequently used in = practice, have=20 obtained toleration from the courts; and, though discouraged, are = tacitly=20 allowed; as, for example, the common plea of judgment recovered, that = is, that=20 judgment has been already recovered by the plaintiff, for the same cause = of=20 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=20 ground for not proceeding in the suit at the present period, and prays = that the=20 pleading may be stayed, until that ground be removed. The number of = these pleas=20 is small. Among them is that which is founded on the nonage of the = parties, and=20 termed parol demurrer. Stephen on Pleading, 64. See, generally, Bac. = Abr. Pleas,=20 Q; Com. Dig. Abatement, I 24, 34; Doct, Pl. 297; Bull. N. P. 309; Lawes = Civ. Pl.=20 173; 1 Chit. Pl. 634,; Steph. Pl. 81; Bouv. Inst. Index, h. t.

TO PLEAD. The formal entry of the defendant's defence on the = record.=20 In a popular sense, it signifies the argument in a cause, but it is not = so used=20 by the profession. Steph. Pl. Appex. note I; Story, Eq. Pl. =A75, note. =

PLEADING, practice. The statement in a logical, and legal = form, of the=20 facts which constitute the plaintiff's cause of action, or the = defendant's=20 ground of defence; it is the formal mode of alleging that on the record, = which=20 would be the support, or the defence of the party in evidence. 8 T. R. = 159;=20 Dougl. 278; Com. Dig. Pleader, A; Bac. Abr. Pleas and Pleading; Cowp. = 682-3. Or=20 in the language of Lord Coke, good pleading consists in good matter = pleaded in=20 good form, in apt time, and due order. Co. Lit. 303. In a general sense, = it is=20 that which either party to a suit at law alleges for himself in a court, = with=20 respect to the subject-matter of the cause, and the mode in which it is = carried=20 on, including the demand which is made by the plaintiff; but in = strictness, it=20 is no more than setting forth those facts or arguments which show the = justice or=20 legal sufficiency of the plaintiff's demand, and the defendant's = defence,=20 without including the statement of the demand itself, which is contained = in the=20 declaration or count. Bac. Abr. Pleas and Pleading.

2. The science of pleading was designed only to render the facts of = each=20 party's case plain and intelligible, and to bring the matter in dispute = between=20 them to judgment. Steph. Pl. 1. It is, as has been well observed, = admirably=20 calculated for analyzing a cause, and extracting, like the roots of an = equation,=20 the true points in dispute; and referring them with all imaginable = simplicity,=20 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;=20 first, the regular, or those which occur, in the ordinary course of a = suit; and=20 secondly, the irregular, or collateral, being those which are occasioned = by=20 mistakes in the pleadings on either side.

4. The regular parts are, 1st. The declaration or count. 2d. The = plea, which=20 is either to the jurisdiction of the court, or suspending the action, = a's in the=20 case of a parol demurrer, or in abatement, or in bar of the action, or = in=20 replevin, an avowry or cognizance. 3d . The replication, and, in case of = an=20 evasive plea, a new assignment, or in replevin the plea in bar to the = avowry or=20 cognizance. 4th. The rejoinder, or, in replevin, the replication to the = plea in=20 bar. 5th. The sur-rejoinder, being in replevin, the rejoinder. 6th. The=20 rebutter. 7th. The sur-rebutter. Vin. Abr. Pleas and Pleading, C; Bac. = Abr.=20 Pleas and Pleadings, A. 8th. Pleas puis darrein continuance, when the = matter of=20 defence arises pending the suit.

6. The irregular or collateral parts of Pleading are stated to be, = 1st.=20 Demurrers to Illly art of the pleadings above mentioned. 2dly. Demurrers = to=20 evidence given at trials. 3dly. Bills of exceptions. 4thly. Pleas in = scire=20 facias. And, 5thly. Pleas in error. Vin. Abr. Pleas and Pleadings, C.; = Bouv.=20 Inst. Index, h. t.

PLEADING, SPECIAL. By special pleading is meant the allegation = of=20 special or new matter, as distinguished from a direct denial of matter=20 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=20 criminal causes in which the king is a party. Formerly it signified = royal causes=20 for offences of a greater magnitude than mere misdemeanors. These were = left to=20 be tried in the courts of the barons, whereas the greater offences, or = royal=20 causes, were to be tried in the king's courts, under the appellation of = pleas of=20 the crown. Robertson's Hist. of Charles V., vol. 1, p. 48.

PLEAS POLL, Engl. practice. A record which contains the = declaration,=20 plea, replication, rejoinder, and other pleadings, and the issue. Eunom. = Dial.=20 2, =A729, p. 111.

PLEBEIAN. One who is classed among the common people, as = distinguished=20 from the nobles. Happily in this country the order of nobles does not = exist.=20

PLEBEIANS. One of the divisions of the people in ancient Rome; = that=20 class which was composed of those who were not nobles nor slaves. Vide = Smith's=20 Dic. Gr. & Rom. Antiq. art. Plebes.

PLEBISCIT, civil law. This is an anglicised word from the = Latin=20 plebiscitum, which is composed or derived from plebs and scire, and = signifies,=20 to establish or ordain.

2. A plebiscit was a law which the people, separated from the = senators and=20 the patricians, made on the requisition of one of their magistrates, = that is, a=20 tribune. Inst. 1, 2, 4.

PLEDGE or PAWN, contracts. These words seem indifferently used = to=20 convey the same idea. Story on Bailm. =A7286.

2. In the civil code of Louisiana, however, they appear not to have = exactly=20 the same meaning. It is there said that pledges are of two kinds, = namely, the=20 pawn, and the antichresis. Louis'. Code, art. 3101.

3. Sir William Jones defines a pledge to be a bailment of goods by a = debtor=20 to his creditor, to be kept till the debt is discharged. Jones' Bailm. = 117; Id.=20 36. Chancellor Kent, 2 Kent's Com. 449, follows the same definition, and = see 1=20 Dane's Abr. c. 17, art. 4. Pothier, De Nantissement, art. prelim. 1, = defines it=20 to be a contract by which a debtor gives to his creditor a thing to = detain as=20 security for his debt. The code Napoleon has adopted this definition, = Code Civ.=20 art. 2071, and the Civil Code of Louisiana has followed it. Louis. Code, = 3100.=20 Lord Holt's definition is, when goods or chattels are delivered to = another as a=20 pawn, to be security for money borrowed of him by the bailor - and this, = he=20 adds, is called in Latin vadium, and in English, a pawn or pledge. Ld. = Raym.=20 909, 913.

4. The foregoing definitions are sufficiently descriptive of the = nature of a=20 pawn or pledge but they are in terms limited to cues where a thing is = given as a=20 security for a debt; but a pawn may well be made as security for any = other=20 engagement. 2 Bulst. 306; Pothier, De Nantissement, n. 11. The = definition of=20 Domat is, therefore, more accurate, because it is more comprehensive, = namely,=20 that it is an appropriation of the thing given for the security of an=20 engagement. Domat, B. 3, tit. 1, =A71, n. 1. And, according to Judge = Story, it may=20 be defined to be a bailment of personal property, as security for some = debt or=20 engagement. Story on Bailm. =A7286.

5. The term pledge or pawn is confined to personal property; and = where real=20 or personal property is transferred by a conveyance of the title, as a = security,=20 it is commonly denominated a mortgage.

6. A mortgage of goods is, in the common law, distinguishable from a = mere=20 pawn. By a grant or a conveyance of goods in gage or mortgage, the whole = legal=20 title passes conditionally to the mortgagee; and if not redeemed at the = time=20 stipulated, the title becomes absolute at law, though equity will = interfere to=20 compel a redemption. But in a pledge a special property only passes to = the=20 pledges, the general property remaining in the pledger. 1 Atk. 167; 6 = East, 25;=20 2 Caines' C. Err. 200; 1 Pick. 889; 1 Pet. S. C. B. 449 2 Pick. R. 610; = 5 Pick.=20 R. 60; 8. Pick. R. 236; 9 Greenl. R. 82; 2 N. H. Rep. 13; 5 N. H. Rep. = 545; 5=20 John. R. 258; 8 John. R. 97; 10 John. R. 471; 2 Hall, R. 63; 6 Mass. R. = 425; 15=20 Mass. R. 480. A mortgage may be without possession, but a pledge cannot = be=20 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=20 chattels; but money, negotiable instruments, choses in action, and = indeed any=20 other valuable thing of a personal nature, such as patent-rights and=20 manuscripts, may, by the common law, be delivered in pledge. 10 Johns. = R. 471,=20 475; 12 Johns. R. 146; 10 Jonhs. R. 389; 2 Blackf. R. 198; 7 Greenl. R. = 28; 2=20 Taunt. R. 268; 13 Mass. 105; 15 Mass. 389; Id. 534; 2 Caines' C. Err. = 200; 1=20 Dane's Abr. ch. 17, art. 4, =A7 ii. See Louis. Code, art. 3121.

8. It is of the essence of the contract, that there should be an = actual=20 delivery of the thing. 6 Mass. 422; 15 Mass. 477 14 Mass. 352; 2 Caines' = C. Err.=20 200; 2 Kent's Com. 452; Bac. Abr. Bailment, B; 2 Rolle R. 439; 6 Pick. = R. 59,=20 60; Pothier, De Nantissement, n. 8, 9; Louis. Code, 3129. What will = amount to a=20 delivery, is matter of law. See Delivery.

9. It is essential that the thing should be delivered as a security = for some=20 debt or engagement. Story on Bailm. =A7300. And see 3 Cranch, 73; 7 = Cranch, 34; 2=20 John. Ch. R. 309; 1 Atk. 236; Prec. in Ch. 419; 2 Vern. 691; Gilb. Eq. = R. 104; 6=20 Mass. 339; Pothier, Nantissement, n. 12; Civ. Code of Lo. art. 3119; = Code Civ.=20 art. 2076.

10. In virtue of the pawn the pawnee acquires, by the common law, a = special=20 property in the thing, and is entitied to the possession of it = exclusively,=20 during the time and for the objects for which it is pledged. 2 Bl. Com. = 396;=20 Jones' Bailm. 80; Owen R. 123, 124; 1 Bulst. 29; Yelv. 178 Cro. Jac. = 244; 2 Ld.=20 Raym. 909, 916; Bac. Abr. Bailment, B; 1 Dane's Abr. ch. 17, art. 4, = SSSS 1, 6;=20 Code Civ. art. 2082; Civ. Code of Lo. art. 3131. And he has a right to = sell the=20 pledge, when there has been a default in the pledger in complying with = his=20 engagement. Such a default does not divest the general property of the = pawner,=20 but still leaves him a right of redemption. But if the, pledge is not = redeemed=20 within the stipulated time, by a due performance of the contract for = which it is=20 a security, the pawnee has then a right to sell it, in order to have his = debt or=20 indemnity. And if there is no stipulated time for the payment of the = debt, but=20 the pledge is for an indefinite period, the pawnee has a right, upon = request, to=20 a prompt fulfilment of the agreement; and if the pawner refuses to = comply, the=20 pawnee may, upon demand and notice to the pawner, require the pawn to be = sold. 2=20 Kent's Com. 452; Story on Bailm. 308.

11. The pawnee is bound to use ordinary diligence in keeping the = pawn, and=20 consequently is liable for ordinary neglect in keeping it. Jones'-Bailm. = 75; 2=20 Kent's Com. 451; 1 Dane's Abr. ch. 17, art. 12; 2 Ld. Raym, 909, 916; = Domat B 1,=20 tit. 1, =A74, n. 1.

12. The pawner has the right of redemption. If the pledge is conveyed = by way=20 of mortgage, and thus passes the legal title, unless he redeems the = pledge at a=20 stipulated time, the title of the pledge becomes absolute at law; and = the=20 pledger has no remedy at law, but only a remedy in equity to redeem. 2 = Ves. Jr.=20 378; 2 Caines' C. Err. 200. If, however, the transaction is not a = transfer of=20 ownership, but a mere pledge, as the pledger has never parted with the = general=20 title, he may, at law, redeem, notwithstanding he has not strictly = complied with=20 the condition of his contract. Com. Dig. Mortgage, B; 1 Pow. on Mortg. = by=20 Coventry & Land. 401, and notes, ibid. See further, as to the = pawner's right=20 of redemption, Story on Bailm. =A7=A7345 to 349.

13. By the act of pawning, the pawner enters into an implied = agreement or=20 warranty that he is the owner of the property pawned, and that he has a = good=20 right to pass the title. Story on Bailm. =A7354.

14. As to the manner of extinguishing the contract of pledge or = mortgage of=20 personal property, see Story on Bailm. 359 to 366.

PLEDGE, contracts. He who becomes security for another, and, = in this=20 sense, every one who becomes bail for another is a pledge. 4 Inst. 180 = Com. Dig.=20 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=20 sureties to prosecute a suit, and the names of the pledges were added at = the=20 foot of the declaration; but in the course of time it became unnecessary = to find=20 such pledges because the plaintiff was no longer liable to be amerced, = pro falsa=20 clamora, and the pledges were merely nominal persons, and now John Doe = and=20 Richard Roe are the universal pledges; but they may be omitted = altogether; 1=20 Tidd's. Pr. 455; Arch. Civ. Pl. 171; or inserted at any time before = judgment. 4=20 John. 190.

PLEGIIS ACQUIETANDIS, WRIT DE. The name of an ancient writ in = the=20 English law, which lies where a man becomes pledge or surety for another = to pay=20 a certain sum of money at a certain day; after the day, if the debtor = does not=20 pay the debt, and the. surety be compelled to pay, he shall have this = writ to=20 compel the debtor to pay the same. F. N. B. 321.

PLENA PROBATIO. A term used in the civil law, to signify full = proof,=20 in contradistinction to semi-plena probatio, which is only a = presumption. Code,=20 4, 19, 5, &c. 1 Greenl. Ev. =A7119.

PLENARTY, eccl. law. Signifies that a benefice is full. Vide=20 Avoidance.

PLENARY. Full, complete.

2. In the courts of admiralty, and in the English ecclesiastical = courts,=20 causes or suits in respect of the different course of proceeding in = each, are=20 termed plenary or summary. Plenary, or full and formal suits, are those = in which=20 the proceedings must be full and formal: the term summary is applied to = those=20 causes where the proceedings are more succinct and less formal. Law's = Oughton,=20 41; 2 Chit. Pr. 481.

PLENE ADMINISTRAVIT, pleading. A plea in bar entered by an = executor or=20 administrator by which he affirms that he had not in his possession at = the time=20 of the commencement of the suit, nor has had at any time since any goods = of the=20 deceased to be administered; when the plaintiff replies that the = defendant had=20 goods, &c., in his possession at that time, and the parties join = issue, the=20 burden of the proof will be on the plaintiff. Vide 15 John. R. 323; 6 T. = R. 10;=20 1 Barn. & Ald. 254; 11 Vin. Ab. 349; 12 Vin. Ab. 185; 2 Phil. Ev. = 295; 3=20 Saund. (a) 315, n. 1; 6 Com. Dig. 311.

PLENE ADMINISTRAVIT PRAETERt. This is the usual plea of plene=20 administravit, except that the defendant admits a certain amount of = assets in=20 his hands.

PLENE COMPUTAVIT, pleading. A plea in an action of account = render, by=20 which the defendant avers that he has fully accounted. Bac. Ab. Accompt, = E. This=20 plea does not admit the liability of the defendant to account. 15 S. = & R.=20 153.

PLENIPOTENTIARY. Possessing full powers; as, a minister=20 plenipotentiary, is one authorized fully to settle the matters connected = with=20 his mission, subject however to the ratification of the government by = which he=20 is authorized. Vide Minister.

PLENUM DOMINIUM. The unlimited right which the owner has to = use his=20 property as he deems proper, without accountability to any one.

PLOUGH-BOTE. An allowance made to a rural tenant, of wood = sufficient=20 for ploughs, harrows, carts, and other instruments of hushandry.

PLOUGH-LAND, old Eng. law. An uncertain quantity of land; but, = according to some opinions, it contains one hundred and twenty acres. = Co. Litt.=20 69 a.

TO PLUNDER. The capture of personal property on land by a = public=20 enemy, with a view of making it his own. The property so captured is = called=20 plunder. See Booty; Piize.

PLUNDERAGE, mar. law. The embezzlement of goods on board of a = ship, is=20 known by the name of plunderage.

2. The rule of the maritime law in such cases is, that the whole crew = shall=20 be responsible for the property thus embezzled, because there must be = some=20 negligence in finding out the depredator. Abbott on Ship. 457; 3 John. = Rep. 17;=20 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=20 a man were to devise to another all he was worth, if he, the testator, = died=20 without children, and he died leaving one child, the devise would not = take=20 effect. See Dig. 50, 16, 148; Id. 35, 1, 101, 1; Id. 3 1, 17, 4 Code, 6, = 49, 6,=20 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=20 all the votes which might have been given; though in common parlance = majority is=20 used in the sense here given to plurality.

PLURIES, practice. A term by which a writ issued subsequently = to an=20 alias of the same kind, is denominated.

2. The pluries writ is made by adding after we command you, the = words, " as=20 often times we have commanded you." This is called the first pluries, = the next=20 is called the second pluries, &c.;

POINDING, Scotch. law. That diligence, affecting movable = subjects, by=20 which their property is carried directly to, the creditor. Poinding is = real or=20 personal. Ersk. Pr. L. Scot. 3, 6, 11.

POINDING, PERSONAL, Scotch law. Poinding of the goods = belonging to the=20 debtor; and of those goods only.

2. It may have for its warrant either letters of horning, containing = a clause=20 for poinding, and then it is executed by messengers; or precepts of = poinding,=20 granted by sheriffs, commissaries, &c., which are executed by their = proper=20 officers. No cattle pertaining to the plough, nor instruments of = tillage, can be=20 poinded in the time of laboring or tilling the ground, unless where the = debtor,=20 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=20 properly a diligence, this is generally considered by lawyers as a = species of=20 real action, and is so called to distinguish it from personal poinding, = which is=20 founded merely on an obligation to pay.

2. Every debitum fundi, whether legal or conventional, is a = foundation for=20 this action. It is therefore competent to all creditors in debts which = make a=20 real burden on lands. As it proceeds on a, real right, it may be = directed=20 against all goods that can be found on the lands burdened but, 1. Goods = brought=20 upon the ground by strangers are not subject to this diligence. 2. Even = the=20 goods of a tenant cannot be poinded for more than his term's rent, Ersk. = Pr. L.=20 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,=20 properly arising out of the issue, which is propounded to him. Vide = Resolution.=20

POINT RESERVED. A point or question of law which the court, = not being=20 fully satisfied how to decide, in the hurried trial of a cause, rules in = favor=20 of the party offering it, but subject to revision on a motion for a new = trial.=20 If, after argument, it be found to have been ruled correctly, the = verdict is=20 supported; if otherwise, it is set aside .

POINTS, construction. Marks in writing and in print, to denote = the=20 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.=20 2, =A733, p. 239; yet, in construing them, the courts must read them = with such=20 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=20 point of interrogation and exclamation. Barr. on the Stat. 294, note; = vide=20 Punctuation.

POISON, crim. law. Those substances which, when applied to the = organs=20 of the body, are capable of altering or destroying, in a majority of = cases, some=20 or all of the functions necessary to life, are called poisons. 3 Fodere, = Traite=20 de Med. Leg. 449; Guy, Med. Jur. 520.

2. When administered with a felonious intent of committing , murder, = if.=20 death ensues, it is murder the most detestable, because it can of all = others, be=20 least prevented by manhood or forethought. It is a deliberate act = necessarily=20 implying malice. 1 Russ. Cr. 429. For the signs which indicate = poisoning, vide 2=20 Beck's Med. Jurisp. ch. 16, p. 236, et seq.; Cooper's Med. Jurisp. 47; = Ryan's=20 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=20 Measure.

POLICE. That species of superintendence by magistrates which = has=20 principally for its object the maintenance of public tranquillity among = the=20 citizens. The officers who are appointed for this purpose are also = called the=20 police.

2. The word police has three significations, namely; 1. The first = relates to=20 the measures which are adopted to keep order, the, laws and ordinances = on=20 cleanliness, health, the markets, &c. 2. The second has for its = object to=20 procure to the authorities the means of detecting even the smallest = attempts to=20 commit crime, in order that the guilty may be arrested before their = plans are=20 carried into execution, and delivered over to the justice of the = country. 3. The=20 third comprehends the laws, ordinances and other measures which require = the=20 citizens to exercise their rights in a particular form.

3. Police has also been divided into administrative police, which has = for its=20 object to maintain constantly public order in every part of the general=20 administration; and into judiciary police, which is intended principally = to=20 prevent crimes by punishing the criminals. Its object is to punish = crimes which=20 the administrative police has not been able to prevent.

POLICE JURY. In Louisiana this name is given. to certain = officers who=20 collectively exercise jurisdiction in certain cases of police as levying = taxes,=20 regulating roads,

POLICY OF INSURANCE, contracts. An instrument in writing by = which the=20 contract of insurance is effected and reduced into form.

2. The term policy of insurance, or as surance, as it is sometimes = called, is=20 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.=20

3. The policy is always considered as being made upon an executed=20 consideration, namely, the payment or security for the payment of the = premium,=20 and contains only the promise of the underwriters, without anything in = nature of=20 a counter promise on the part of the insured. The policy may be effected = by the=20 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=20 absurd and incoherent instrument; 4 T. R. 210; but courts of justice = have always=20 construed it according to the intention of the parties, and so that the=20 indemnity of the insured, dud the advancement of trade, which are ,the = great=20 objects of insurance, may be attained. It should contain, 1. The names = of the=20 parties. 2. The name of the vessel insured, in order to identify it; but = to=20 prevent the ill consequence that might result from a mistake in the name = of the=20 vessel or master, there are usually inserted in policies these words, " = or by=20 whatsoever name or names the same ship or the master thereof is, or = shall be,=20 named or called." 3. A Specification of the subject-matter, of the = insurance,=20 whether it be goods, ship, freight, respondentia or bottomry securities, = or=20 other things. Marsh. Ins. 315; 3 Mass. Rep. 476. 4. A description of the = voyage,=20 with the commencement and end of the risk. 5. A statement of the perils = insured=20 against. 6. A power in the insured tosave goods in case of misfortune, = without=20 violating the policy. 7. The promise of the insurers, and an = acknowledgment of=20 their receipt of the premium. 8. The common memorandum. 9. The date and=20 subscription.

5. Policies, with reference to the reality of the interest insured, = are=20 distinguished into interest and wager policies; with reference to the = amount of=20 interest, into open and valued.

6. An interest policy, is where the insured has a real, substantial,=20 assignable interest in the thing insured; in which case only it is a = contract of=20 indemnity.

7. A wager policy, is a pretended insurance, founded on an ideal = risk, where=20 the insured has no interest in the thing insured, and can therefore = sustain no=20 loss, by the happening of any of the misfortunes insured against. These = policies=20 are strongly reprobated. 3 Kent, Com. 225.

8. An open policy, is where the amount of the interest of the insured = is not=20 fixed by the policy; but is left to be ascertained by the insured in = case a loss=20 shall happen.

9. A valued policy, is where a value has been set on the ship. or = goods=20 insured, and this value inserted in the policy in the nature of = liquidated=20 damages, to save the necessity of proving it in case of loss. Marsh. = Ins. 287;=20 and see Kent, Com. Lecture 48; Marsh. Ins. ch. 8; 16 Vin. Ab. 402; 1 = Supp. to=20 Ves. jr. 305; Park. Ins. 1, 14; Westcott, Ins. 400; Pardes. h. t.; Poth. = h. t.;=20 Boulay Paty, h. t.; Bouv. Inst. Index, h. t.

POLICY, PUBLIC. By public policy is meant that which the law=20 encourages for the promotion of the public good.

2. That which is against public policy is generally unlawful. For = example, to=20 restrain an individual from marrying, or from engaging in business, when = the=20 restraint is general, in the first case, to all persons, and, in the = second, to=20 all trades, business, or occupations. But if the restraint be only = partial, as=20 that Titius shall not marry Moevia, or that Caius shall not engage in a=20 particular trade in a particular town or, place, the restraint is not = against=20 public policy,, and therefore valid. 1 Story, Eq. Jur. =A7274. See Newl. = Contr.=20 472.

POLITICAL. Pertaining to policy, or the administration of the=20 government. Political rights are those which may be exercised in the = formation=20 or administration of the government they are distinguished from civil, = rights,=20 which are the rights which a man enjoys, as regards other individuals, = and not=20 in relation to the government. A political corporation is one which has=20 principally for its object the administration of the government, or to = which the=20 powers of government, or a part of such powers, have been delegated. 1 = Bouv.=20 Inst. n. 182, 197, 198.

POLL. A head. Hence poll tax is the name of a tax imposed upon = the=20 people at so much a head. 2. To poll a jury is to require that each = juror shall=20 himself declare what is his verdict. This may be done at the instance of = either=20 party, at any time before the verdict is recorded. 3 Cowen, R. 23. See = 18 John.=20 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=20 as the latter includes a concurrence of intention in two parties, one of = whom=20 promises something to the other, who accepts on his part of such = promise. L. 3,=20 ff. Pollicit.; Grotius, lib. 2, c. 2; Poth. on Oblig. P. 1, c. 1, s. 1, = art.=20 1,=A72.

2. An offer to guaranty, but not accepted, is not a contract on which = an=20 action will lie. 1 Stark. C. 10; 1 M. & S. 557; 3 B. & C. 668, = 690; 5 D.=20 & R. 512, 586; 7 Cranch, 69; 17 John. R. 134; 1 Mason's R. 323, 371; = 16=20 John. R. 67; 3 Conn. R. 438; 1 Pick. R. 282, 3; 1 B. & A. 681.

POLLS. The place where electors cast in their votes.

POLYANDRY. The state of a woman who has several hushands.

2. Polyandry is legalized only in Tibet. This is inconsistent with = the law of=20 nature. Vide Law of Nature.

POLYGARCHY. A term used to express a government which is = shared by=20 several persons; as, when two brothers succeed to the throne, and reign = jointly.=20

POLYGAMY, crim. law. The act of a person who, knowing he has = two or=20 more wives, or she has two or more hushands living, marries another. It = differs=20 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=20 real estate, and pass to the heir and not to the executor. Ow. 20. See = Pool;=20 River; Water.

PONE, English practice. An original writ issuing out of = chancery, for=20 the purpose of removing a plaint from an inferior court into the = superior courts=20 at Westminster. The word signifies "put;" put by gages, &c. The writ = is=20 called from the words it contained when in Latin, "Pone per vadium et = salvos=20 plegios," &c. Put by gage and safe pledges, &c. See F. N. B. 69, = 70 a;=20 Wilkinson on Replevin, Index.

PONTAGE. A contribution towards the maintenance, rebuilding or = repairs=20 of a bridge. The toll taken for this purpose also bears this name. = Obsolete.=20

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.=20 Litt. 5. Vide Stagnum; Water. Undoubtedly the right to fish, and = probably the=20 right to use hydraulic works, will be acquired by such grant. 2 N. = Hamps. Rep.=20 259; An on Wat. Courses, 47; Plowd. 161; Vaugh. 103; Bac. Ab. Grants, H = 3; Com.=20 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=20 in power during life. In the 9th Collation of the Authentics it is = declared the=20 bishop of Rome hath the first place of sitting in all assemblies, and = the bishop=20 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=20 Passama quoddy, which, it has been decided, is within the jurisdiction = of the=20 United States. 1 Ware's R. 26.

POPULAR ACTION, punishment. An action given by statute to any = one who=20 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,=20 and which include the privileges and guidance of all members and creeks = which=20 are allotted to them. 1 Chit. Com. Law, 726; Postlewaith's Com. Dict. h. = t.; 1=20 Chit. Com. L. Index, h. t. According to Dalloz, a port is a place within = land,=20 protected against the waves and winds, and affording to vessels a place = of=20 safety. Diet. Supp. h. t. By the Roman law a port is defined to be = locus,=20 conclusus, quo importantur merces, et unde exportantur. Dig. 50,16, 59. = See 7 N.=20 S. 81. 2. A port differs from a haven, (q. v.) and includes something = more. 1st.=20 It is a place at which vessels may arrive and discharge, or take in = their=20 cargoes. 2. It comprehends a vale, city or borough, called in Latin = caput=20 corpus, for the reception of mariners and merchants, for securing the = goods, and=20 bringing them to market, and for victualling the ships. 3. It is = impressed with=20 its legal character by the civil authority. Hale de Portibus Mar. c. 2; = 1 Harg.=20 46, 73; Bac. Ab. Prerogative, D 5; Com. Dig. Navigation, E; 4 Inst. 148; = Callis=20 on Sewers, 56; 2 Chit. Com. Law, 2; Dig. 60, 16, 59; Id. 43, 12, 1, 13; = Id. 47,=20 10, 15, 7; Id. 39, 4, 15.

PORT-REEVE, Eng. law. In some places in England an officer = bearing=20 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=20 the privilege of bringing goods into a port.

PORTATICA, Engl. law. The generic name for port duties charged = to=20 ships. Harg. L. Tr. 74.

PORTER. The name of an ancient English officer who bore or = carried a=20 rod before the justices. The door-keeper of the English parliament also = bears=20 this name.

2. One who is employed as a common carrier to carry goods from one = place to=20 another in the same town, is also called a porter. Such person is in = general=20 answerable as a common carrier. Story, Bailm. =A7496.

PORTION. That part of a parent's estate, or the estate of one = standing=20 in loco parentis, which is given to a child. 1 Vern. 204. Vide 8 Com. = Dig. 539;=20 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,=20 3.

PORTSALES. Auctions were anciently so called, because they = took place=20 in ports.

POSITIVE. Express; absolute; not doubtful. This word is = frequently=20 used in composition.

2. A positive condition is where the thing which is the subject of it = must=20 happen; as, if I marry. It is opposed to a negative condition, which is = where=20 the thing which is the subject of it must not happen; as, if I do not = marry.=20

3. A positive fraud is the intentional and successful employment of = any=20 cunning, deception or artifice, to circumvent, cheat, or deceive = another. 1=20 Story, Eq. =A7186; Dig. 4, 3, 1, 2; Dig. 2, 14, 7, 9. It is cited in = opposition to=20 constructive fraud. (q. v.)

4. Positive evidence is that which, if believed, establishes the = truth or=20 falsehood of a fact in issue, and does not arise from any presumption. = It is=20 distinguished from circumstantial evidence. 3 Bouv. Inst. n. 3057.

POSSE. This word is used substantively to signify a = possibility. For=20 example, such a thing is in posse, that is, such a thing may possibly = be; when=20 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.=20

2. The sheriff has authority by the common law, while acting under = the=20 authority of the writ of the United States, commonwealth or people, as = the case=20 may be, and for the purpose of preserving the public peace, to call to = his aid=20 the posse comitatus.

3. But with respect to writs which issue, in the first instance, to = arrest in=20 civil suits, the sheriff is not bound to take the posse comitatus to = assist him=20 in the execution of them: though he may, if he pleases, on forcible = resistance=20 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,=20 that he may equally require that of any individual; but to this general = rule=20 there are some exceptions; persons of infirm health, or who want = understanding,=20 minors under the age of fifteen years, women, and perhaps some others, = it seems,=20 cannot be required to assist the sheriff, and are therefore not = considered as a=20 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=20 officer in putting down a riot is indictable. 1 Carr. & Marsh. 314. = In this=20 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=20 any person who obeys his command, unless aware of that fact, will be = protected.=20

7. Whether an individual not enjoined by the sheriff to lend his aid, = would=20 be protected in his interference, seems questionable. In a case where = the=20 defendant assisted sheriff's officers in executing a writ of replevin = without=20 their solicitation, the court held him justified in so doing. 2 Mod. = 244. Vide=20 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=20 or a person having a term, who is said to be possessed, and not seized. = Bac. Tr.=20 335; Poph. 76; Dy. 369.

POSSESSIO FRATRIS. The brother's possession. This is a = technical=20 phrase which is applied in the English law relating to descents. By the = common=20 law, the ancestor from whom the inheritance was taken by descent, must = have had=20 actual seisin of the lands, either by his own entry, or by the = possession of his=20 own, or his ancestor's lessee for years, or by being in the receipt of = rent from=20 the lessee of the freehold. But there are qualifications as to this = rule, one of=20 which arises from the doctrine of possesio fratris. The possession of a = tenant=20 for years, guardian or brother, is equivalent to that of the party = himself, and=20 is termed in law possessio fratris. Litt. sect. 8 Co. Litt. 15 a; 3 = Wils. 516 7=20 T. R. 386 2 Hill Ab. 206.

2. In Connecticut, Delaware, Georgia, Massachusetts, New Jersey, New = York,=20 Ohio, Pennsylvania, Rhode Island, South Carolina, Virginia, and probably = in=20 other states, the real and personal estates of intestates are = distributed among=20 the heirs, without any reference or regard to the actual seisin of the = ancestor.=20 Reeve on Des. 377 to 379; 4 Mason's R. 467; 3 Day's R. 166; 2 Pet. R. = 59. In=20 Maryland, New Hampshire, North Carolina, and Vermont, the doctrine of = possessio=20 fratris, it seems, still exists. 2 Peters' Rep. 625; Reeve on Desc. 377; = 4 Kent,=20 Com. 384, 5.

POSSESSION, intern. law. By possession is meant a country = which is=20 held by no other title than mere conquest.

2. In this sense Possession differs from a dependency, which belongs=20 rightfully to the country which has dominion over it; and from colony, = which is=20 a country settled by citizens or subjects of the mother country. 3 Wash. = C. C.=20 R. 286.

POSSESSION, property. The detention or enjoyment of a thing = which a=20 man holds or exercises by himself or by another who keeps or exercises = it in his=20 name. By the possession of a thing, we always conceive the condition, in = which=20 not only one's own dealing with the thing is physically possible, but = every=20 other person's dealing with it is capable of being excluded. Thus, the = seaman=20 possesses his ship, but not the water in which it moves, although he = makes each=20 subserve his purpose.

2. In order to complete a possession two things are required. 1st. = That there=20 be an occupancy, apprehension, (q. v.) or taking. 2dly. That the taking = be with=20 an intent to possess (animus possidendi), hence persons who have no = legal wills,=20 as children and idiots, cannot possess or acquire possession. Poth. h. = It.;=20 Etienne, h. t. See Mer. R. 358; Abbott on Shipp. 9, et seq. But an = infant of=20 sufficient understanding may lawfully acquire the possession of a thing. =

3. Possession is natural or civil; natural, when a man detains a = thing=20 corporeal, as by occupying a house, cultivating grounds or retaining a = movable=20 in his custody; possession is civil, when a person ceases to reside in = the=20 house, or on the land which he occupied, or to detain the movable he = possessed,=20 but without intending to abandon the possession. See, as to possession = of lands,=20 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=20 the immediate occupancy of the party. 3 Dey. R. 34. Constructive, when a = man=20 claims to hold by virtue of some title, without having the actual = Occupancy; as,=20 when the owner of a lot of land, regularly laid out, is in possession of = any=20 part, he is considered constructively in possession of the whole. 11 = Vern. R.=20 129. What removal of property or loss of possession will be sufficient = to=20 constitute larceny, vide 2 Chit. Cr. Law, 919; 19 Jurist, 14; Etienne, = h. t.=20 Civ. Code of Louis. 3391, et seq.

5. Possession, in the civil law, is divided into natural and civil. = The same=20 division is adopted by the Civil Code of Louisiana.

6. Natural possession is that by which a man detains a thing = corporeal, as by=20 occupying a house, cultivating ground, or retaining a movable in his = possession.=20 Natural possession is also defined to be the corporeal detention of a = thing,=20 which we possess as belonging to us, without any title to that = possession, or=20 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=20 land which he occupied, or to detain the movable which he possessed, but = without=20 intending to abandon the possession. It is the detention of a thing, by = virtue=20 of a just title, and under the conviction of possessing as owner. Id. = art. 3392,=20 3394.

8. Possession applies properly only to corporeal things, movables and = immovables. The possession of incorporeal rights, such as servitudes and = other=20 rights of that nature, is only a quasi. possession, and is exercised by = a=20 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=20 for him; thus the proprietor of ahouse possesses it by his tenant or = farmer.=20

10. To acquire possession of a property, two things are requisite. 1. = The=20 intention of possessing as owner. 2. The corporeal possession of the = thing. Id.=20 art. 3399.

11. Possession is lost with or without the consent of the possessor. = It is=20 lost with his consent, 1. When he transfers this possession to another = with the=20 intention to divest himself of it. 2. When he does some act, which = manifests his=20 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.=20 A possessor of an estate loses the possession against his consent. 1. = When=20 another expels him from it, whether by force in driving him away, or by = usurping=20 possession during his absence, aud preventing him from reentering. 2. = When the=20 possessor of an estate allows it to be usurped, and held for a year, = without,=20 during that time, having done any act of possession, or interfered with = the=20 usurper's possession. Id. art. 3412.

12. As to the effects of the purchaser's taking possession, see Sugd. = Vend.=20 8, 9; 3 P. Wms. 193; 1 Ves. Jr. 226; 12 Ves. Jr. 27; 11 Ves. Jr. 464. = Vide,=20 generally, 5 Harr. & John. 230, 263; 6 Har. & John. 336; 1 Har. = &=20 John. 18; 1 Greenl. R. 109; 2 Har. & McH. 60, 254, 260; 3 Bibb, R. = 209 1=20 Har. & McH., 210; 4 Bibb, R. 412, 6 Cowen, R. 632; 9 Cowen, R. 241; = 5 Wheat.=20 R. 116, 124; Cowp. 217; Code Nap. art. 2228; Code of the Two Sicilies, = art.=20 2134; Bavarian Code, B. 2, c. 4, n. 5; Prus. Code, art. 579; Domat, Lois = Civ.=20 liv. 3, t, 7, s. 1; Vin. Ab. h. t.; Wolff, Inst. =A7200, and the note in = the=20 French translation; 2 Greenl. Ev. =A7614, 615; Co. Litt. 57 a; Cro. El. = 777; 5 Co.=20 13; 7 John. 1.

POSSESSOR. He who holds, detains or enjoys a thing, either by = himself=20 or his agent, which he claims as his own.

2. In general the possessor of personal chattels is presumed to be = the owner;=20 and in case of real estate he has a right to receive the profits, until = a title=20 adverse to his possession has been established, leaving him subject to = an action=20 for the mesne profits. (q. v.)

POSSESSORY ACTION, old Eng. law. A reall action in which the = plaintiff=20 called the demandant, sought to recover the possession of lands, = tenements, and=20 hereditaments. On account of the great nicety required in its = management, and=20 the introduction of more expeditious methods of trying titles by other = actions,=20 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=20 be maintained in the possession of an immovable property, or of a right = upon or=20 growing out of it, when he has been disturbed: or to be reinstated to = that=20 possession, when he has been divested or evicted. Code of Practice, art. = 6; 2 L.=20 R. 227, 454.

POSSIBILITY. An uncertain thing which may happen; Lilly's Reg. = h. t.;=20 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=20 of another; or remote, as that one man shall be married to a woman, and = then=20 that she shall die, and he be married to another. 1 Fonb. Eq. 212, n. e; = l6 Vin.=20 Ab. h. t., p. 460; 2 Co. 51 a.

3. Possibilities are also divided into, 1. A possibility coupled with = an=20 interest. This may, of course, be sold, assigned, transmitted or = devised; such a=20 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=20 heir apparent, during the life of his ancestor. It is evident that he = has no=20 right which he can assign, devise, or even, release.

5. - 3. A possibility' or mere contingent interest, as a devise to = Paul if he=20 survive Peter. Dane's Ab. c. 1, a 5, 2, and the cases there cited.

POST. After. When two or more alienations or descents have = taken place=20 between an original intruder ant or defendant in a writ of entry, the = writ is=20 said to be in the post, because it states that the tenant had not entry = unless=20 after the ouster of the original intruder. 3 Bl. Com. 182. See Entry, = limit of.=20

POST DATE. To date an instrument a time after that on which it = is=20 made. Vide Date.

POST DIEM. After the day; as a plea of payment post diem, = after the,=20 day when the money became due. Com. Dig. Pleader, 2 W 29.

POST DISEISIN, Engl. law. The name of a writ which, lies for = him who,=20 having recovered lands and tenements by force of a novel disseisin, is = again=20 disseised by a former disseisor. Jacob.

POST ENTRY, maritime law. When a merchant makes an entry on = the=20 importation of, goods, and at the time he is not able to calculate = exactly the=20 duties which he is liable to pay, gave rise to the practice of allowing = entries=20 to be made after the goods have been weighed, measured or gauged, to = make up the=20 deficiency of the original or prime entry; the entry thus allowed to be = made is=20 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=20 be made with reference to the suit then pending, and, for this reason, = are not=20 evidence in favor of the persons making them; while those made before an = action=20 has been commenced, in so me cases, as when a pedigree is to be proved, = may in=20 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.=20 2 Camp. 620; 2 B. & P. 316; 15 East, 416; 1 M. & S. 201; 15 Com. = R. 206.=20

POST MORTEM. After death; as, an examination post mortem, is = an=20 examination made of a dead body to ascertain the cause of death; an = inquisition=20 post mortem, is one made by the coroner.

POST NOTES. A species of bank notes payable at a distant = period, and=20 not on demand. 2 Watts & Serg. 468. A kind of bank notes intended to = be=20 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=20 designate the second son. See Puisne; Post-nati.

POST NUPTIAL. Something which takes place after marriage; as a = post=20 nuptial settlement, which is a conveyance made generally by the hushand = for the=20 benefit of the wife.

2. A post nuptial settlement is either with or without consideration. = The=20 former is valid even against creditors, when in other respects it in = untainted=20 with fraud. 4 Mason, 443; 2 Bailey 477. The latter, or when made without = consideration, if bona fide, and the hushand be not involved at the = time, and it=20 be not disproportionate to his means, taking his debts and situation = into=20 consideration, is valid. 4 Mason, 443.7 See 4 Dall. 304; Settlement; = Voluntary=20 conveyance.

POST OBIT, contract. An agreement, by which the obligor = borrows a=20 certain sum of money and promises to pay a larger sum, exceeding the = lawful rate=20 of interest, upon the death of a person, from whom he has some = expectation, if=20 the obligor be then living. 7 Mass. R. 119; 6 Madd. R. 111; 5 Ves. 57; = 19 Ves.=20 628.

2. Equity will, in general, relieve a party from these unequal = contracts, as=20 they are fraudulent on the ancestor. See 1 Story, Eq. 842; 2 P. Wms. = 182; 2 Sim.=20 R. 183, 192; 5 Sim. R. 524. But relief will be granted only on equitable = terms,=20 for he who seeks equity must do equity. 1 Fonb. B. 1, c. 2, 13, note, p; = 1=20 Story, Eq. 344. See Catching Bargain; Macedonian Decree.

POST OFFICE. A place where letters are received to be sent to = the=20 persons to whom they, are addressed.

2. The post office establishment of the United States, is of the = greatest=20 importance to the people and to the government. The constitution of the = United=20 States has invested congress with power to establish post offices and = post=20 roads.. Art. 1, s. 8, n. 7.

3. By virtue of this constitutional authority, congress passed = several laws=20 anterior to the third day of March, 1825, when an act, entitled "An act = to=20 reduce into one the several acts establishing and regulating the post = office=20 department," was passed. 3 Story, U. S. 1985. It is thereby enacted, 1. = That=20 there be established, the seat of the government of the United States, a = general=20 post office, under the direction of a postmaster general. The postmaster = general=20 shall appoint two assistants, and such clerks as may be necessary for = the=20 performance of the business of his office, and as are authorized by law; = and=20 shall procure, and cause to be kept, a seal for the said office, which = shall be=20 affixed to commissions of postmasters, and used to authenticate all = transcripts=20 and copies which may be required from the department. He shall establish = post=20 offices, and appoint postmasters, at all such places as shall appear to = him=20 expedieut, on the post roads that are, or may be, established by law. He = shall=20 give his assistants, the postmasters, and all other persons whom he = shall=20 employ, or who may be employed in any of the departments of the general = pos=20 office, instructions relative to their duty. He shall provide for the = carriage=20 of the mail on all post roads that are, or may be, established by law, = and as=20 often "he, having regard to the productiveness thereof, and other = circumstances,=20 shall think proper. He may direct the route or road, where there are = more than=20 one, between places designated by law for a post road, Which route shall = be=20 considered the post road. He shall obtain, from the postmasters, their = accounts=20 and vouchers for their receipts and expenditures, once in three months, = or=20 oftener, with the balances thereon arising, in favor of the general post = office.=20 He shall pay all expenses which may arise in conducting the post office, = and in=20 the conveyance of the mail, and all other necessary expenses arising on = the=20 collection of the revenue, and management of the general post office. He = shall=20 prosecute offences against the post office establishment. He shall, once = in=20 three months, render, to the secretary of the treasury, a quarterly = account of=20 all the receipts and expenditures in the said department, to be adjusted = and=20 settled as other public accounts. He shall, also, superintend the = business of=20 the department in all tho duties that are, or may be assigned to it: = Provided,=20 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,=20 until a successor shall be appointed, and arrive at the general post = office, to=20 perform the business.

4. - 2. That the postmaster general, and all other persons employed = in the=20 general post office, or in the care, custody, or conveyance of the mail, = shall,=20 previous to entering upon the duties assigned to them, or the execution = of their=20 trusts, and before they shall be entitled to receive any emolument = therefor,=20 respectively take and subscribe the following oath, or affirmation, = before some=20 magistrate, and cause a certificate thereof to be filed in the general = post=20 office: "I, A B, do swear or affirm, (as the case may be, that I will = faithfully=20 perform all the duties required of me, and abstain from everything = forbidden by=20 the laws in relation to the establishment of the post office and post = road s=20 within the United States." Every person who shall be, in any manner, = employed in=20 the care, custody, or conveyance, or mauagement of the mail, shall be = subject to=20 all pains, penalties, and forfeitures, for violating the injunctions, or = neglecting the duties, required of him by the laws relating to the = establishment=20 of the post office and post roads, whether such person shall have taken = the oath=20 or affirmation, above prescribed, or not.

5. - 3. That it shall be the duty of the postmaster general, upon the = appointment of any postmaster, to require, and take, of such postmaster, = bond,=20 with good and approved security, in such penalty as he may judge = sufficient,=20 conditioned for the faithful discharge of all the duties of such = postmaster,=20 required by law, or which may be required by any instruction, or general = rule,=20 for the government of the department: Provided, however, That, if = default shall=20 be made by the postmaster aforesaid, at any time, and the postmaster = general=20 shall fail to institute suit against such post-master, and said = sureties, for=20 two years from and after such default shall be made, then, and in that = case, the=20 said sureties shall not be held liable to the United States, nor shall = suit be=20 instituted against them.

6. - 4. That the postmaster general shall cause a mail to be carried = from the=20 nearest post office, on any established post road, to the court house of = any=20 county which is now, or may hereafter be established in any of the = states or=20 territories of the United States, and which is without a mail; and the = road on=20 which such mail shall be transported, shall become a post road, and so = continue,=20 until the transportation thereon shall cease. It shall for the = postmaster=20 general to enter into contracts, for a term not exceeding four years, = for=20 extending the line of posts, and to authorize the persons, so = contracting, as a=20 compensation for their expenses, to receive during the continuance of = such=20 contracts, at rates not exceeding those for like distances, established = by this=20 act, all the postage which shall arise on all letters, newspapers, = magazines,=20 pamphlets, and packets, conveyed by any such posts; and the roads = designated in=20 such contracts, shall, during the continuance thereof, be deemed and = considered=20 as post roads, within the provision of this act: and a duplicate of = every such=20 contract shall, within sixty days after the execution thereof, be lodged = in the=20 office of the comptroller of the treasury of the United States.

7. - 5. That the postmaster general be authorized to have the mail = carried in=20 any steamboat, or other vessel, which shall be used as a packet in, any = of the=20 waters of the United States, on such terms and conditions as shall be = considered=20 expedient: Provided, That he does not pay more than three cents for each = letter,=20 And more than one half cent for each newspaper, conveyed in such mail. =

8. - 8. That, whenever it shall be made appear, to the satisfaction = of the=20 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=20 than those lawfally used on turnpike, roads to collect their toll, and = not kept=20 in good repair, with proper bridges and ferries, where the same may be=20 necessary, it shall be the duty of the postmaster general to report the = same to=20 congress, with such information as can be obtained, to enable congress = to=20 establish some other road instead of it, in the same main direction. =

9. - 39. That it shall be the duty of the postmaster general to = report,=20 annually, to congress, every post road which shall not, after the second = year=20 from its establishment, have produced one-third of the expense of = carrying the=20 mail on the same.

10. The act "to change the organization of the post office = department, and to=20 provide more effectually for the settlement of the accounts thereof," = passed=20 July 2, 1836, 4 Shars. cont. of Story L. U. S. 2464, contains a variety = of=20 minute provisions for the settlement of the revenue of the post office=20 department.

11. By the act of the 3d of March, 1845, various provisions are made = to=20 protect the department from fraud and to prevent the abuse of franking. =

12. Finding roads in use throughout the country, congress has = established,=20 that is, selected such as suited the convenience of the government, and = which=20 the exigencies of the people required, to be post roads. It has seldom = exercised=20 the power of making new roads, but examples are not wanting of roads = having been=20 made under the express authority of congress. Story, Const. 1133. Vide = Dead=20 Letter; Jeopardy; Letter; Mail; Newspaper; Postage; Postmaster; = Postmaster=20 general.

POSTAGE. The money charged by law for carrying letters, = packets and=20 documents by mail. By act of congress of March 3, 1851, Minot's Statute = at=20 Large, U. S. 587, it is enacted as follows:

2. - 1. That from and after the thirtieth day of June, eighteen = hundred and=20 fifty-one, in lieu of the rates of postage now established by law, there = shall=20 be charged the following rates, to with or every single letter in = manuscript, or=20 paper of any kind, upon which information shall be asked for, or = communicated,=20 in writing, or, by marks or signs, conveyed in the mail for any distance = between=20 places within the United State's, not exceeding three thousand miles, = when the=20 postage upon such letter shall have been prepaid, three cents, and five = cents=20 when the postage thereon shall not have been prepaid; and for any = distance=20 exceeding three thousand miles, double those rates. For every such, = single=20 letter or paper when conveyed wholly or in part by sea, and to or from a = foreign=20 country, for any distance over twenty-five hundred miles, twenty cents, = and for=20 any distance under twenty-five hundred miles, ten cents, (excepting, = however,=20 all cases where such postages have been or shall be adjusted at = different rates,=20 by postal treaty or convention already concluded or hereafter to be = made;) and=20 for a double letter there shall be charged double the rates above = specified; and=20 for a treble letter, treble those rates; and for a quadruple letter, = quadruple=20 those rates; and every letter or parcel not exceeding half an ounce in = weight=20 shall be deemed a single letter, and every additional weight of half an = ounce,=20 or additional weight of less than half an ounce, shall be charged with = an=20 adclitional single postage. And all drop letters, or letters placed in = any post=20 office, not for transmission, but for delivery only, shall be charged = with=20 postage at the rate of one cent each; and all letters which shall = hereafter be=20 advertised as remaining over or uncalled for in any post office, shall = be=20 charged with one cent in addition to the regular postage, both to be = accounted=20 for as other postages are.

3. - 2. That all newspapers not exceeding three ounces in weight, = sent from=20 the office of publication to actual and bona fide subscribers, shall be = charged=20 with postage as follows, to wit: All newspapers published weekly only, = shall=20 circulate in the mail free of postage within the county where published, = and=20 that the postage on the regular numbers of a newspaper published weekly, = for any=20 distance not exceeding fifty miles out of the county where published, = shall be=20 five cents per quarter; for any distance exceeding fifty miles and not = exceeding=20 three hundred miles, ten cents per quarter; for any distance exceeding = three=20 hundred miles and not exceeding one thousand miles, fifteen cents per = quarter;=20 for any distance exceeding one thousand miles and not exceeding two = thousand=20 miles, twenty cents per quarter; for any distance exceeding two thousand = miles=20 and not exceeding four thousand miles, twenty-five cents per quarter; = for any=20 distance exceeding four thousand miles, thirty cents per quarter; and = all=20 newspapers published monthly, and sent to actual aud bona fide = subscribers,=20 shall be charged with one-fourth the foregoing rates; and on all such = newspapers=20 published semi-monthly shall be charged with one-half the foregoing = rates; and=20 papers published semi-weekly shall be charged double those rates; = triweekly,=20 treble those rates; and oftener than tri-weekly, five times, those = rates. And=20 there shall be charged upon every other newspaper, and each circular not = sealed,=20 handbill, engraving, pamphlet, periodical, magazine, book, and every = other=20 description of printed matter, which shall be unconnected with any = manuscript or=20 written matter, and which it may be lawful to transmit through the mail, = of no=20 greater weight than one ounce, for any distance not exceeding five = hundred=20 miles, one cent; and for each additional ounce or fraction of an ounce, = one=20 cent; for any distance exceeding five hundred miles and not exceeding = one=20 thousand five hundred miles, double those rates; for any distance, = exceeding one=20 thousand five hundred miles-and not exceeding two thousand five hundred = miles,=20 treble those rates; for any distance exceeding two thousand five hundred = miles=20 and not exceeding three thousand five hundred miles, four times those = rates; for=20 any distance exceeding three thousand five hundred miles, five times = those=20 rates. Subscribers to all periodicals shall be required to pay one = quarter's=20 postage in advance, and in all such cases the postage shall be one-half = the=20 foregoing rates. Bound books, and parcels of printed matter not weighing = over=20 thirty-two ounces, shall be deemed mailable matter under the provisions = of this=20 section. And the postage on all printed matter other than newspapers and = periodicals published at intervals not exceeding three months, and sent = from the=20 office of publication, to actual and bona fide subscribers, to be = prepaid; and=20 in ascertaining the weight of newspapers for the purpose of determining = the=20 amount of postage chargeable thereon, they shall be weighed when in a = dry state,=20 And whenever any printed matter on which the postage is required by this = section=20 to be prepaid, shall, through the inattention of postmasters or = otherwise, be=20 sent without prepayment, the same shall be charged with double the = amount of=20 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=20 which is exempted from the payment of postage by any existing law, And = the=20 postmaster general, by and with the advice and consent of the president = of the=20 United States, shall be, and he hereby is, authorized to reduce or = enlarge, from=20 time to time, the rates of postage upon all letters. and other mailable = matter=20 conveyed between the United States and any foreign country for the = purpose of=20 making better postal arrangements with other governments, or = counteracting any=20 adverse measures affecting our postal intercourse with foreign = countries, and=20 postmasters at the office of delivery are hereby authorized, and it = shall be=20 their duty, to remove the wrappers and envelopes from all printed matter = and=20 pamphlets not charged with letter postage, for the purpose of = ascertaining=20 whether there is upon or connected with any such printed matter, or in = such=20 package, any matter or thing which would authorize or require the charge = of a=20 higher rate of postage thereon. And all publishers of pamphlets, = periodicals,=20 magazines, and newspapers, which shall not exceed sixteen ounces in = weight,=20 shall be allowed. to interchange their publications reciprocally, free = of=20 postage: Provided, That such interchange shall be confined to a single = copy of=20 each publication: And provided, also, That said publishers may enclose = in their=20 publications the bills for subscriptions thereto, without any additional = charge=20 for postage; And provided, further, Thai in all cases where newspapers = shall not=20 contain over three hundred square inches, they may be transmitted = through the=20 mails by the publishers to bona fide subscribers, at one-fourth the = rates fixed=20 by this act.

5. By the act of March 3, 1845, providing for the transportation of = the mail=20 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,=20 packages, newspapers, and pamphlets, or other printed matter, between = the ports=20 of the United States and the ports of foreign governments enumerated = herein,=20 transported in the United States mail under the provisions of this act, = shall be=20 as follows: Upon all letters and packages not exceeding one-half ounce = in=20 weight, between any of the ports of the United States aud the ports of = England=20 or France, or any other foreign port not less than three thousand miles = distant=20 twenty-four cents, with the inland postage of the United States added = when sent=20 through the United States mail to or from the post office at a port of = the=20 United States; upon letters and packets over one-half an ounce in = weight, and=20 not exceeding one ounce, forty-eight cents; and for every additional = half ounce=20 or fraction of an ounce, fifteen cents; upon all letters and packets = not,=20 exceeding one-half ounce, gent through the United States mail between = the ports=20 of the United States and any of the West India islands, or islands in = the Gulf=20 of Mexico, ten cents; and twenty cents upon letters and packets not = exceeding=20 one ounce; and five cents for every additional half ounce or fraction of = an=20 ounce; upon each newspaper, pamphlet, and price current, sent in the = mail=20 between the United States and any of the ports and places above = enumerated,=20 three cents, with inland United States postage added when the same is=20 transported to or from said port of the United States in the United = States mail.=20

POSTAGE STAMPS. The act of congress, approved March 3, 1847, = section=20 11, and the act of congress of March 3, 1841, sections 3, 4, provide = that, to=20 facilitate the transportation of letters in the mail, the postmaster = general be=20 authorized to prepare postage, stamps, which, when attached to any = letter or=20 packet, shall be evidence of the payment of the postage, chargeable on = such=20 letter. The same sections declare that any person who shall falsely or=20 fraudulently make, utter, or, forge any postage stamp, with the intent = to=20 defraud the post office department, shall be deemed guilty of felony, = and be=20 punished by a fine not exceeding five hundred dollars, or by = imprisonment not=20 exceeding five years, or by both such fine and imprisonment. And if any = person=20 shall use or attempt to use, in pre-payment of postage, any postage = stamp which=20 shall have been used before for like purposes, such person shall be = subject, to=20 a penalty of fifty dollars for every such offence, to be recovered in = the name=20 of the United States in any court of competent jurisdiction.

POSTEA, practice. Afterwards. The endorsement on the nisi = prius record=20 purporting to be the return of the judge before whom a cause is tried, = of, what=20 has been done in respect of such record. It states the day of trial, = before what=20 judge, by name, the cause is tried, and also who is or was an associate = of such=20 judge; it also states the appearance of the parties by their respective=20 attorneys, or their defaults; and the summoning and choice of the jury, = whether=20 those who were originally summoned, or those who were tales, or taken = from the=20 standers by; it then states the finding of the jury upon oath, and, = according to=20 the description of the action, and the assessment of the damages with = the=20 occasion thereof, together with the costs.

2. These are the usual matters of fact contained in the postea, but = it varies=20 with the description of the action. See Lee's Dict. Postea; 2 Lill. P. = R. 337;=20 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=20 afterwards be controverted, the postea is delivered by the proper = officer to the=20 attorney of the successful party, to sign his judgment; but it not = unfrequently=20 happens that after a verdict has been given, there is just cause to = question its=20 validity, in such case the postea remains in the custody of the court. = Eunom.=20 Dial. 2, 33, p. 116.

POSTERIORES. This term was used by the Romans to denote the = descendant=20 in a direct line beyond the sixth degree. It is still used in making=20 genealogical tables.

POSTERIORITY, rights. Being or, coming after. It is a word of=20 comparison, the correlative of which is priority; as, when a man holds = lands=20 from two landlords, he holds from his ancient landlord by priority and = from the=20 other by posteriority. 2 Inst. 392.

2. These terms, priority and posteriority, are also used in cases of = liens=20 the first are prior liens, and are to be paid in the first place; the = last are=20 posterior liens, and are not entitled to payment until the former have = been=20 satisfied.

POSTERITY, descents. All the descendants of a person in a = direct line.=20

POSTHUMOUS CHILD. after the death of its father; or, when the=20 Caesarian operation is performed, after that of the mother.

2. Posthumous children are entitled to take by descent as if they had = been=20 born at the time of their deceased ancestor. When a father has made a = will=20 without providing for a posthumous child, such a will is in some states, = as in=20 Pennsylvania, revoked pro tanto by implication. 4 Kent, Com. 506; Dig. = 28, 5,=20 92; Ferriere, Com. h. t.; Domat, Lois Civiles, part 2 ' liv. 2, t. 1, s. = 1:=20 Merl. Rep. h. t.; 2 Bouv. Inst. n. 2158.

POSTILS, postillae. Marginal notes made in a book or writing = for=20 reference to other parts of the same, or some other book or writing. =

POSTLIMINIUM. That right in virtue of which persons and things = taken=20 by the enemy are restored to their former state, when coming again under = the=20 power of the nation to which they belong. Vat. Liv. 3, c. 14, s. 204; = Chit. Law=20 of Nat. 93 to, 104; Lee on Captures, ch. 5; Mart. Law of Nat. 305; 2 = Wooddes. p.=20 441, s. 34; 1 Rob. Rep. 134; 3 Rob. Rep. 236; Id. 97 2 Burr. 683; 10 = Mod. 79; 6=20 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=20 essentially to mitigate the, calamities of war. When, therefore, = property taken=20 by the enemy is either recaptured or rescued from him, by the fellow = subjects or=20 allies of the original owner, it does not become the property of the = recaptor or=20 rescuer, as if it had been a new prize, but it is restored to the = original owner=20 by right of postliminy, upon certain terms.

POSTMAN, Eng. law. A barrister in the court of exchequer, who = has=20 precedence in: motions.

POSTMASTER, or DEPUTY POSTMASTER. An officer of the United = States=20 appointed by the postmaster general to hold his office. during the, = plaasure of=20 the former. Before entering on the duties of his office, he is required = to give=20 bond with surety to be approved by the postmaster general. Act of 3d = March,=20 1825, s. 3. 12. Every postmaster is required to keep an office in the = place for=20 which he may be appointed; and it is his duty to receive and forward by = mail,=20 without delay, all letters, papers, and packets as directed; to receive = the=20 mails and deliver, at all reasonable hours, all letters, papers and = packets to=20 the persons entitled thereto.

3. In lieu of commissions allowed deputy postmasters by the 14th = section of=20 the act of 3d March, 1845,.the postmaster general is authorized by the = act of=20 March 1, 1847, s. 1, to allow, on the proceeds of their respective = offices, a=20 commission not exceeding the following rates on the amount received in = any one=20 year, or a due proportion thereof for less-than a year: On a sum not = exceeding=20 one hundred dollars, forty per cent; on a sum over the first hundred and = not=20 exceeding four hundred dollars, thirty-three and one-third per cent; on = a sum=20 over and above the first four hundred dollars and not exceeding = twenty-four=20 hundred dollars, thirty per cent.; on a sum over twenty-four hundred = dollars,=20 twelve and one-half per cent.; on all sums arising from the postage on=20 newspapers, magazines, and pamphlets, fifty per cent.; on the amount of = postages=20 on letters or packets received for distribution, seven per cent.: = Provided, That=20 all allowances, commissions, or other emoluments, shall be subject to = the=20 provisions of the forty-first section of the act which this is intended = to=20 amend; and that the annual compensation therein limited shall be = computed for=20 the fiscal year commencing on the first of July and ending the thirtieth = of June=20 each year, and that for any period less than a year the restrictions = contained=20 in said section shall be held to apply in a due proportion for such = fractional=20 period: And, provided further, That the compensation to any,, deputy = postmaster=20 under the foregoing provisions to be computed upon the receipt at his = office of=20 a larger sum shall in no case fall short of the amount to which he would = be=20 entitled under a smaller sum received at his office.

4. By act of congress approved March 3, 1851, 6, it is enacted, That = to any=20 postmaster whose commissions may be reduced below the amount allowed at = his=20 office for the year ending the thirtieth day of June, eighteen hundred = and=20 fifty-one, and whose labors may be increased, the postmaster general = shall be=20 authorized, in his discretion, to allow such additional commissions as = be may=20 deem just and proper Provided, That the whole amount of commissions = allowed such=20 postmaster during any fiscal year, shall not exceed by more than twenty = per=20 centum the amount of commissions at such office for the year ending the=20 thirtieth day of June, eighteen hundred and fifty-one.

5. Although not subject to all the, responsibilities of a common = carrier, yet=20 a postmaster is liable for all losses and injuries occasioned by his own = default=20 in office. 3 Wils. Rep. 443; Cowp. 754; 5 Burr. 2709; 1 Bell's Com. 468; = 2 Kent.=20 Com. 474; Story on Bailm. 463.

6. Whether a postmaster is liable for the acts of his clerks or = servants=20 seems not to be settled. 1 Bell's Com. 468, 9. In Pennsylvania it has = been=20 decided that he is not responsible for their secret delinquencies, = though=20 perhaps he is answerable for want of attention to the official conduct = of his=20 subordinates. 8 Watts. R. 453. Vide Frank; Post Office.

POSTMASTER GENERAL. The chief officer of the post office = department of=20 the United States. Various duties are imposed upon this officer by the = acts of=20 congress of March 3, 1825, and July 2, 1836, which will be found under = the=20 articles Mail; Post Office and Postage.

2. The act of February 20, 1819, 3 Story's L. U. S. 1720, gives the=20 postmaster general a salary of four thousand dollars per annum and that = of March=20 2, 1827, 3 Story's L. U. S. 2076, declares there shall be paid, = annually, to the=20 postmaster general two thousand dollars, in addition to his present = salary.

POST NATI. Born after. This term is applied to persons who = came to=20 reside in tho United States after the declaration of independence. They = are=20 generally considered aliens, unless they become naturalized, or are = otherwise so=20 declared, by law. In Massachusetts, by statutory provision, and in = Connecticut,=20 by decision, a person born abroad, if he went there to reside before the = treaty=20 of peace of the 3d of September, 1783, is considered a citizen. 2 Pick. = R. 394 5=20 Day, R. 169; 2 Kent, Com. 51, 2.

POSTULATIO, Rom. civ. law. The name given to the first act in = a=20 criminal proceeding. A person who wished to accuse another of a crime, = appeared=20 before the praetor and asked his authority for that purpose, designating = the=20 person intended. This act was called postulatio. The postulant = (calumniam=20 jurabat) made oath that he was not influenced by a spirit of calumny, = but acted=20 in good faith, with a view to the public interest. The praetor received = this=20 declaration, at, first made verbally, but afterwards in writing, and = called a=20 libel. The postulatio was posted lip in the forum, to give public notice = of the=20 names of the accuser and the accused. A second accuser sometimes = appeared and=20 went through the same formalities.

2. Other persons were allowed to appear and join the postulant or = principal=20 accuser. These were said postulare subscriptionem and were denominated=20 subscriptores. Cic. in Caecil Divin. 15. But commonly such persons acted = concurrently with the postulant, and inscribed, their names at the time = he first=20 appeared. Only one accuser, however, was allowed to act, and if the = first=20 inscribed did not desist in favor of the second, the right was = determined, after=20 discussion, by judges appointed for the purpose. Cic. in Verr. I. 6. The = preliminary proceeding was called divinatio, and is well explained, in = the=20 oration of Cicero, entitled Divinatio. Bee Aulus Gellius, Att. Noct. = lib. II.=20 cap. 4.

3. The accuser having been determined in this manner, he appeared, = before the=20 praetor, and formally charged the accused by name, specifying the crime. = This=20 was called nominis et criminis, delatio. The magistrate reduced it to = writing,=20 which was called inscriptio, and the accuser and his adjuncts, if any, = signed=20 it, subscribebant. This proceeding corresponds to the indictment of the = common=20 law.

4. If the accused appeared, the accuser formally charged him with the = crime.=20 If the accused confessed it, or stood mute, he was adjudged to pay the = penalty.=20 If he denied it, the inscriptio contained his answer, and he was then = (in reatu)=20 indicted, (as we should say) and was called reus, and a day was fixed,=20 ordinarily after an interval of at least ten days, according to the = nature of=20 the case, for the appearance of the parties. In the case of Verres, = Cicero=20 obtained one hundred and ten days to prepare his proofs, although he=20 accomplished it in fifty days, and renounced, as he might do, the = advantage of=20 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=20 preator. If the accuser did not appear, the' case was erased from the = roll. If=20 the accused made default he was condemned. If both parties appeared, a = jury was=20 drawn by the praetor or judex questionis. The jury were called jurati = homines,=20 and the drawing of them sortitio, and they were taken from a general = list made=20 out for the year. Either party had a right to object to a certain extent = to the=20 persons drawn, and then there was a second drawing called subsortitio, = to=20 complete the number.

6. In some tribunals (quaestiones) the jury were (editi) produced in = equal=20 number by the accuser and the accused, and sometimes by the accuser = alone, who=20 were objected to or challenged in different ways, according to the = nature of the=20 case. The number of the jury also varied according to the. tribunal, = (quaestio)=20 they were sworn before the trial began. Hence they were called jurati. =

7. The accusers ana often the subscriptores were heard, and = afterwards the=20 accused, either by himself or by his advocates, of whom he commonly had = several.=20 The witnesses, who swore by Jupiter, gave their testimony after the = discussions=20 or during the progress of the pleadings of the accuser. In some cases it = was=20 necessary to plead the cause on the third day following the first = hearing, which=20 was called comperendinatio.

8. After the pleadings were concluded the praetor or the judex = quastionis=20 distributed tablets to the jury, upon which each wrote secretly, either = the=20 letter A (absolvo) or the letter C, (condemno) or N. L. (non liquet.) = These=20 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=20 if the majority were for a conviction. If the tablets marked N. L. were = so many=20 as to prevent an absolute majority for a conviction or acquittal, the = cause was=20 put off for more ample information, ampliatio, which the preator = declared by the=20 word amplies. Such in brief was the course of proceedings before the = quaestiones=20 perpeduae.

9. The forms observed in the comitia centiniata and comitia tributa = were=20 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=20 the proceedings on an indictment at common law.

POT-DE-VIN, French law. A sum of money frequently paid, at the = moment=20 of entering into a contract, be=3Dyond the price agreed upon.

2. It differs from arrha, (q. v.) in this, that it is no part of the = price of=20 the thing sold, and, that the person who has received it, cannot by = returning=20 double the amount, or the other party by losing what he has paid, = rescind the=20 contract. 18 Toull. n. 52.

POTENTATE. One who has a great power over, an extended = country; a=20 sovereign.

2. By the naturalization laws, an alien is required, before he can be = naturalized, to renounce all allegiance aud fidelity to any foreign = prince,=20 potentate, state, or sovereign whatever.

POTESTAS, civil law. A Latin word which signifies power; = authority;=20 domination; empire. It has several meaning. 1. It signifies imperium, or = the=20 jurisdiction of magistrates. 2. The power of the father over his = children,=20 patriapotestas. 3. The authority of masters over their slaves, which = makes it=20 nearly synonymous with dominium. See Inst. 1, 9, et 12; Dig. 2, 1, 13, = 1; Id.=20 14, 1; Id. 14, 4, 1, 4.

POUND, weight. There are two kinds of weights, namely, the = troy, and=20 the avoirdupois. The pound avoirdupois is greater than the troy pound, = in the=20 proportion of seven thousand to five thousand seven hundred and sixty. = The troy=20 pound contains twelve ounces, that of avoirdupois sixteen ounces.

POUND, Eng. law. A place enclosed to keep strayed animals in. = 5 Pick.=20 514; 4 Pick. 258; 9 Pick. 14.

POUND, money. The sum of twenty shillings. Previous to the=20 establishment of the federal currency,, the different states made use of = the=20 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=20 value of a sovereign. (q. v.) In calculating the rates of duties, the = pound=20 sterling shall be considered and taken as of the value of four dollars = and=20 eighty cents. Apt of March 3, 1833.

3. The pound sterling of Ireland is to be computed, in calculating = said=20 duties, at four dollars and ten cents. Id.

4. The pound of the British provinces Nova Scotia, New Brunswick,=20 Newfoundland, and Canada, is to be so computed at four dollars. Act of = May, 22,=20 1846.

POUNDAGE, practice. The amount allowed to the sheriff, or = other=20 officer, for commissions on, the money made by virtue of an execution. = This=20 allowance varies in different states, and to different officers.

POURPARLER, French law. The conversations and negotiations = which have=20 taken place between the parties in order to make an agreement. These = form no=20 part of the agreement. Pard. Dr. Com. 142.

2. The general rule in the common law is the same, parol proof = cannot,=20 therefore, be given to contradict, alter, add to, or diminish a written=20 instrument, except in some particular cases. 1 Dall. 426; Dall. 340; 8 = Serg.=20 & Rawle, 609; 7 Serg. Rawle, 114.

POURSUIVANT. A follower, a pursuer. In the ancient English = law, it=20 signified an officer who attended upon the king in his wars, at the = council=20 table, exchequer, in his court, &e., to be sent as a messenger. A=20 poursuivant was, therefore, a messenger of the king.

POWER. This is either inherent or derivative. The former is = the right,=20 ability, or faculty of doing something, without receiving that right, = ability,=20 or faculty from another. The people have the power to establish a form = of=20 govemment, or to change one already established. A father has the legal = power to=20 chastise his son; a master, his apprentice.

2. Derivative power, which is usually known, by the technical name of = power,=20 is an authority by which one person enables another to do an act for = him. Powers=20 of this kind were well known to the common law, and were divided into = two sorts:=20 naked powers or bare authorities, and powers coupled with an interest. = There is=20 a material difference between them. In the case of the former, if it be = exceeded=20 in the act done, it is entirely void; in the latter it is good for so = much as is=20 within the power, and void for the rest only.

3. Powers derived from, the doctrine of uses may be defined to be an=20 authority, enabling a person, through the medium of the statute of uses, = to=20 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=20 some act in relation to lands, or the creation of estates therein, or of = charges=20 thereon, which the owner granting or reserving such power might himself = lawfully=20 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=20 executed, the uses originally declared cease, and new uses immediately = arise to=20 the persons named in the appointment, to which uses the statute = transfers the=20 legal estate and possession.

6. Powers being found to be much more convenient than conditions, = were=20 generally introduced into family settlements. Although several of these = powers=20 are not usually called powers of revocation, such as powers of = jointuring,=20 leasing, and charging settled estates with the payment of money, yet all = these=20 are powers of revocation, for they operate as revocations, pro tanto, of = the=20 preceding estates. Powers of revocation and appointment may be reserved = either=20 to-the original owners of the land or to strangers: hence the general = division=20 of powers into those which relate to the land, and those which are = collateral to=20 it.

7. Powers relating to the land are those given to some person having = an=20 interest in the land over which they are to be exercised. These again = are=20 subdivided into powers appendant and in gross.

8. A power appendant is where a person has an estate in land, with a = power of=20 revocation and appointment, the execution of which falls within the = compass of=20 his estate; as, where a tenant for life has a power of making leases in=20 possession.

9. A power in gross is where a person has an estate in the land, with = a power=20 of appointment, the execution of which falls outof the compass of his = estate,=20 but, notwithstanding, is annexed in privity to it, and takes effect in = the=20 appointee, out of an interest vested in the appointer; for instance, = where a=20 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=20 a term of years to commence after his death, these are called powers in = gross,=20 because the estate of the person to whom they are given, will not be = affected by=20 the execution of them.

10. Powers collateral, are those which are given to mere strangers, = who have=20 no interest in the laud: powers of sale and exchange given to trustees = in a=20 marriage settlement are of this kind. Vide, generally, Powell on Powers, = assim;=20 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=20 Id. 166, 200; 1 Vern. by Raithby, 406; 3 Stark. Ev. 1199; 4 Kent, Com. = 309; 2=20 Lilly's Ab. 339; Whart. Dig. h. t. See 1 Story, Eq. Jur. 169, as to the=20 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=20 reference to the ability of the donee to suspend, extinguish or merge = the power.=20 The general rule is that a power shall not be exercised in derogation of = a prior=20 grant by the appointer. But this whole division of powers has been = condemned' as=20 too artificial and arbitrary.

12. Powell divides powers into general and particular. powers. = General powers=20 are those to be exercised in favor of any person whom the appointer = chooses.=20 Particular powers are those which are to be exercised in favor of = specific=20 objects. 4 Kent, Com. 311, Vide, Bouv. Inst. Index, h. t.; Mediate = powers;=20 Primary powers.

POWER OF ATTORNEY. Vide Letter of attorney, and 1 Mood. Or. = Cas. 57,=20 58.

POYNING'S LAW, Engl. law. The name usually given to an act = which was=20 passed by a parliament holden in Ireland in the tenth of Henry the = Seventh; it=20 enacts that all statutes made in the realm of England before that time = should be=20 in force and put in use in the realm of Ireland. Irish Stat. 10 H. VII. = c. 22;=20 Co. Litt. 141 b; Harg. n. 3.

PRACTICE. The form, manner and order of conducting and = carrying on=20 suits or prosecutions in the courts through their various stages, = according, to=20 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=20 does; as, A B has a good practice.

3. The books on practice are very numerous; among the most popular = are those=20 Of Tidd, Chiity, Archbold, Sellon, Graham, Dunlap, Caines, Troubat and = Haly,=20 Blake, Impey.

4. A settled, uniform, and loll, continued practice, without = objection is=20 evideuce of what the law is, and such practice is based on principles = which are=20 founded in justice and convenience. Buck, 279; 2 Russ. R. 19, 570; 2 = Jac. It.=20 232; 5 T. R. 380; 1 Y. & J. 167, 168; 2 Crompt. & M. 55; Ram on = Judgm.=20 ch. 7.

PRAEDA BELLICA. Lat. Booty; property seized in war. Vide = Booty; Prize.=20

PRAECIPE or PRECIPE, practice. The name of the written = instructions=20 given by an attorney or plaintiff to the clerk or prothonotary of a; = court,=20 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=20 all sorts, hay, wood, fruits, herbs, and the like.

PRAEDIUM DOMINANS, civil law. The name given to an estate to = which a=20 servitude is due; it is called the ruling estate.

PRAEDIUM RUSTICUM, civil law. By this is understood all = heritages=20 whicb are not destined for the use of man's habitation; such, for = example, as=20 lands, meadows, orchards, gardens, woods, even though they should be = within the=20 boundaries of a city.

PRAEDIUM SERVIENS, Civil law. The name of an estate which = suffers or=20 yields a service to another estate.

PRAEDIUM URBANUM, civil law. By this term is understood = buildings and=20 edifices intended for the habitation and use of man, whether they be = built in=20 cities or whether they be constructed in the country.

PRAEFECTUS VIGILUM, Roman civ. law. The chief officer of the = night=20 watch. His jurisdiction extended to certain offences affecting the = public peace;=20 and even to larcenies. But he could inflict only slight punishments. =

PRAEMUNIRE. In older to prevent the pope from assuming the = supremacy=20 in granting ecclesiastical livings, a number of statutes were made in = England=20 during the reigns of Edward I., and his successors, punishing certain = acts of=20 submission to the papal authority, therein mentioned. In the writ for = the=20 execution of these statutes, the words praemunire facias, being used, to = command=20 a citation of the party, gave not only to the writ, but to the offence = itself,=20 of maintaining the papal power, the name of praemunire. Co. Lit. 129; = Jacob's L.=20 D. h. t.

PRAETOR, Roman civil law. A municipal officer of Rome, so = called=20 because, (praeiret populo,) he went before or took precedence of the = people. The=20 consuls were at first called praetors. Liv. Hist. III. 55. He was a sort = of=20 minister of justice, invested with certain legislative powers, = especially in=20 regard to the forms or formalities of legal proceedings. Ordinarily, be = aid not=20 decide causes as a judge, but prepared the grounds of decision for the = judge and=20 sent to, him the questions to be decided between the parties. The judge = was=20 always chosen by the parties, either directly, or by rejecting, under = certain=20 rules and limitations, the persons proposes to them by the praetor. = Hence the=20 saying of Cicero, (pro Cluentis, 43,) that no one could be judged except = by a=20 judge of his own choice. There were several kinds of officers called = proctors.=20 See Vicat, Vocab.

2. Before entering on his functions he published an edict announcing = the=20 system adopted by him for the application and interpretation of the laws = during=20 his magistracy. His authority extended over all jurisdictions, and was = summarily=20 expressed by the word do, dico, addico, i, e. do I give the action, dico = I=20 declare the law, I promulgate the edict, addico I invest the judge with = the=20 right of judging. There were certain cases which he was bound to decide = himself,=20 assisted by a council chosen by himself perhaps the Decemvirs. But the = greater=20 part of causes brought before him, be sent either to a judge, an = arbitrator, or=20 to recuperators, (recuperatores,) or to the centumvirs, as before = stated. Under=20 the empire the powers of the praetor passed by degrees to the praefect = of the=20 praetorium, or the praefect of the city; so that this magistrate, who at = first=20 ranked with the consuls, at last dwindled into a director or manager of = the=20 public spectacles or games.

3. Till lately, there were officers in certain cities of Germany = denominated=20 praetors Vide 1 Kent, Com. 528.

PRAGMATIC SANCTION, French law. This expression is used to = designate=20 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=20 questions of law, when consulted by a corporation or the citizens of a = province,=20 or of a, municipality, was called a pragmatic sanction. Lecons El. du = Dr. Civ.=20 Rom. 53. This differed from a rescript. (q. v.)

PRAYER, chanc. pleadings. That part of a bill which asks for = relief.=20

2. The skill of the solicitor is to be exercised in framing this part = of the=20 bill. An accurate specification of the matters to be decreed in = complicated=20 cases, requires great discernment and experience; Coop. Eq. Pl. 13; it = is varied=20 as the case is made out, concluding always with a prayer of general = relief, at=20 the discretion of the court. Mitf. Pl. 45.

PRAYER OF PROCESS, chanc. plead. That part of a bill which = prays that=20 the defendant be compelled to appear and answer the bill, and abide the=20 determination of the court on the subject, is called prayer of process. = This=20 prayer must contain the name's of all Persons who are intended to be = made=20 parties. Coop. Eq. Pl. 16; Story, Eq. Pl. 44.

PRAYER FOR RELIEF, chan. pleading. This is the name of that = part of=20 the bill, which, as the phrase imports, prays for relief. This prayer is = either=20 general or special but the general course is for the plaintiff to make a = special=20 prayer for particular relief to which he thinks himself entitled, and = then to=20 conclude with a prayer of general relief at the discretion of the court. = Story,=20 Eq. Pl. 40; 4 Bouv. Inst. n. 4174-6.

PREAMBLE. A preface, an introduction or explanation of what is = to=20 follow: that clause at the head of acts of congress or other = legislatures which=20 explains the reasons why the act is made. Preambles are also frequently = put in=20 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=20 makers as to the mischiefs which are to be remedied, and the objects = which are=20 to be accomplished by the provisions of the statutes. It cannot amount, = by=20 implication, to enlarge what is expressly given. 1 Story on Const. B 3, = c. 6.=20 How far a preamble is to be considered evidence of the facts it recites, = see 4=20 M. & S. 532; 1 Phil. Ev. 239; 2 Russ. on Cr. 720; and see, = generally, Ersk.=20 L. of Scotl. 1, 1, 18; Toull. liv. 3, n. 318; 2 Supp. to Ves. jr. 239; 4 = L. R.=20 55; Barr. on the Stat. 353, 370.

PRECARIOUS RIGHT. The right which the owner of a thing = transfers to=20 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=20 vested for that time, and cannot be revoked until after its expiration. = Wolff,=20 Inst. 833.

PRECARIUM. The name of a contract among civilians, by which = the owner=20 of a thing at the request of another person, gives him a thing to use as = long as=20 the owner shall please. Poth. h. t. n. 87. See Yelv. 172; Cro. Jac. 236; = 9=20 Cowen, 687; Roll. R. 128; Bac. Ab. Bailment, c; Ersk. Prin. B. 3, t. 1, = n. 9;=20 Wolff, Ins. Nat. 333.

2. A tenancy at will is a right of this kind.

PRECATORY WORDS. Expressions in a will praying or requesting = that a=20 thing shall be done.

2. Although recommendatory words used by a testator, of themselves, = seem to=20 leave the devisee to act as he may deem proper, giving him a discretion, = as when=20 a testator gives an estate to a devisee, and adds that he hopes, = recommends, has=20 a confidence, wish or desire that the devisee shall do certain things = for the=20 benefit of another person; yet courts of equity have construed such = precatory=20 expressions as creating a trust. 18 Ves. 41; 8 Ves. 380; Bac. Ab. = Legacies, B,=20 Bouv. ed.

3. But this construction will not prevail when either the objects to = be=20 benefited are imperfectly described, or the amount of property to which = the=20 trust should attach, is not sufficiently defined . 1 Bro. C. C. 142; 1 = Sim. 542,=20 556. See 2 Story, Eq. Jur. 1070; Lewin on Trusts, 77; 4 Bouv. Inst. n. = 3953.=20

PRECEDENCE. The right of being first placed in a certain = order, the=20 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=20 precedence; hence in their treaties in one copy one is named first, and = the=20 other in the other. In some cases of officers when one must of necessity = act as=20 the chief, the oldest in commission will have precedence; as when the = president=20 of a court is not present, the associate who has the oldest commission = will have=20 a precedence; or if their. commissions bear the same date, then the = oldest man.=20

4. In. the, army and navy there is an order of precedence which = regulates the=20 officers in their command.

PRECEDENTS. the decision of courts of justice; when exactly in = point=20 with a case before the court, they are generally held to have a binding=20 authority, as well to keep the scale of justice even and steady, as = because the=20 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;=20 Hob. 270; must have been made upon argument, and be the solemn decision = of the=20 court; 4 Co. 94; and in order to give them binding effect, there must be = a=20 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=20 rules, than to follow any one particular precedent, which may be founded = on=20 reason, unknown to us." Cas. Temp. Talb. 26. Blackstone, 1 Com. 70, = says, that a=20 former decision is in general to be followed, unless "manifestly absurd = or=20 unjust,", and, in the latter case, ii is declared, when overruled, not = that the=20 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=20 decided upon a certain principle, and ought not to be binding when = contrary to=20 such principle. If a precedent is to be followed because it is a = precedent, even=20 when decided against an established rule of law, there can be no = possible=20 correction of abuses, because the fact of, their existence renders them = above=20 the law. It is always safe to rely upon principles. See Principle; = Rewon. de 16=20 Vin. Ab. 499; Wesk. on Inst. h. t.: 2 Swanst. 163; 2 Jac. & W. 31; 3 = Ves.=20 527; 2 Atk. 559; 2 P. Wms. 258; 2 Bro. C. C. 86; 1 Ves. jr. 11; and 2 = Evans=20 Poth. 377, where the author argues against the policy of making = precedents=20 binding when contrary to reason. See also 1 Kent, Comm.475-77; Liv.Syst. = 104-5;=20 Gresl. Ev. 300; 16 Johns. R. 402; 20 Johns. R. 722; Cro. Jac. 527; 33 H. = VII.=20 41; Jones, Bailment, 46; and the articles Reason and Stare decisis.

PRECEPT. A writ directed to the sheriff or other officer, = commanding=20 him to do something. The term is derived from the operative praecipimus, = we=20 command.

PRECINCT. The district for which a high or petty constable is=20 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=20 his own precincts; after night the constable is required to make himself = known,=20 and it is, indeed, proper he should do so at all times. Ibid. n. 265, p. = 93.=20

PRECIPUT, French law. An object which is ascertained by law or = the=20 agreement of the parties, and which is first to be taken out of property = held in=20 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=20 entitled, praecipium jus, which is the origin of the word preciput. = Dict. de=20 Jur. h. t.; Poth. h. t. By preciput is also understood the right to sue = out the=20 preciput.

PRECLUDI NON, pleading. A technical allegation contained in a=20 replication which denies or confesses and avoids the plea. It is usually = in the=20 following form; "And the said A B, as to the plea of the said C D, by = him=20 secondly above pleaded, says, that he the said A B, by reason of any = thing by=20 the said C D, in that plea alleged, ought not to be barred from having = and=20 maintaining his aforesaid action thereof against the said C D, because = he says=20 that," &c. 2 Wils. 42; 1 Chit. Pl. 573.

PRECOGNITION, Scotch law. The examination of witnesses who = were=20 present at the commission of a criminal act, upon the special = circumstances=20 attending it, in order to know whether there is ground for a trial, and = to serve=20 for direction to the prosecutor. But the persons examined may insist on = having=20 their declaration cancelled before thev give testimony at the trial. = Ersk.=20 Princ. B. 4, t. 4, n. 49.

PRECONTRACT. An engagement entered into by a person, which = renders him=20 unable to enter into another; as a promise or covenant of marriage to be = had=20 afterwards. When made per verba de presenti, it is in fact a marriage, = and in=20 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=20 such, and whose rights have been vested in their successor; the word = ancestor is=20 more usually applicable to common persons. The predecessor in a = corporation=20 stands in the same relation to the successor, that the ancestor does to = the=20 heir.

3. The term predecessor is also used to designate one who has filled = an=20 office or station before the present incumbent.

PRE-EMPTION, intern. law. The right of preemption is the right = of a=20 nation to detain the merchandise of strangers passing through her = territories or=20 seas, in order to afford to her subjects the preference of purchase. 1 = Chit.=20 Com. Law, 103; 1 Bl. Com. 287.

2. This right is sometimes regulated by treaty. In that which was = made=20 between the United States and Great Britain, bearing date the 10th day = of=20 November, 1794, ratified in 1795, it was agreed, art. 18, after = mentioning that=20 the usual munitions of war, and also naval materials should be = confiscated as=20 contraband, that "whereas the difficulty of agreeing on precise cases in = which=20 alone provisions and other articles not generally contraband may be = regarded as=20 such, renders it expedient to provide against the inconveniences and=20 misunderstandings which might thence arise. It is further agreed that = whenever=20 any such articles so being contraband according to the existing laws of = nations,=20 shall for that reason be seized, the same shall not be confiscated, but = the=20 owners thereof shall be speedily and completely indemnified; an the = captors, or=20 in their default-the government under whose authority they act, shall = pay to the=20 masters or owners of such vessel the full value of all articles, with a=20 reasonable mercantile profit thereon, together with the freight, and = also the=20 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=20 lands, to purchase them in preference to others, is called the = preemption right.=20 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=20 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=20 an insolvent debtor, the whole or a part of their claim, to the = exclusion of the=20 rest. By preference is also meant the right which a creditor has = acquired over=20 others to be paid first out of the assets of his debtor, as, when a = creditor has=20 obtained a judgment against his debtor which binds the latter's land, he = has a=20 preference.

2. Voluntary preferences are forbidden by the insolvent laws of some = of the=20 states, and are void, when made in a general assignment for the benefit = of=20 creditors. Vide Insolvent; Priority.

PREGNANCY, med. jurisp. This is defined by medical writer; to = be the=20 state of a female who has within her ovary or womb, a fecundated germ = which=20 gradually becomes developed in the latter receptaale. Dunglison's Med. = Diet. h.=20 t.

2. The subject may be considered with reference to the signs of = pregnancy;=20 its duration; and the laws relating to it.

3. - 1. The fact that women sometimes conceal their state of = pregnancy in=20 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=20 desire to deprive the legal successor of his just claims, to gratify = their=20 avarice by extorting money, and to avoid or delay execution, pregnancy = is=20 prtended, renders it necessary that an inquiry should take place to = ascertain=20 whether a woman has or has not been pregnant.

4. There are certain signs which usually indicate this state; these = have been=20 divided into those which affect the system generally, and those which = affect the=20 uterus.

5. - 1. The changes observed in the system from conception and = pregnancy, are=20 principally the following; namely, increased irritability of temper, = melancholy,=20 a languid cast of countenance, nausea, heart-burn, loathing of food, = vomiting in=20 the morning, an increased salivary discharge, feverish neat, with = emaciation and=20 costiveness, occasionally depravity of appetite, a congestion in the = head, which=20 gives rise to spots on the face, to headache, and erratic pains in the = face and=20 teeth. The pressure of increasing pregnancy, occasions protrusion of the = umbilicus, and, sometimes, varicose tumors or anasarcous swellings of = the lower=20 extremities. The breasts also enlarge, an areola, or brown circle is = observed=20 around the nipples, and a secretion of lymph, composed of milk and = water, takes=20 place. It should be remembered that these do not occur in every = pregnancy, but=20 many of them in most cases.

6. - 2. The changes which affect the uterus, are, a suppression and = cessation=20 of the menses; an augmentation in size of the womb, which becomes = perceptible=20 between the eighth and tenth weeks; as time progresses, the enlargement=20 continues about the middle of pregnancy, the woman feels the motion of = the=20 child, and this is called quickening. (q. v.) The vagina is also subject = to=20 alteration, as its glands throw out more mucus, and apparently prepare = the parts=20 for the passage of the foetus. Ryan's Med. Jur. 112, 113, 1 Beck's Med. = Jur.=20 157, 158; 2 Dunglison's Human Physiology, 361. These are the general = signs of=20 pregnancy; it will be proper to consider them more minutely, though = briefly, in=20 detail.

7. - 1. The expansion and enlargement of the abdomen. This sign is = not=20 visible during the early months of pregnancy, and by art in the = disposition of=20 the dress and the use of stays, it may be concealed for a much longer = period.=20 The corpulency of the woman or the peculiarity of her form, may also = contribute=20 to produce the same effect. In common cases, where there is no such = obstacle,=20 this sign is generally manifest at the end of the fourth month, and = continues=20 till delivery. But the enlargement may originate from disease; from = suppression=20 or retention of the menses; tympanites; dropsy; or schirrosity of the = liver and=20 spleen. Patient and assiduous investigation and professional skill are = requisite=20 to pronounce as to this sign, and all these may fail. Fodere, tome i. p. = 443.=20 Cyclop. of Practical Medicnae, h. t. Cooper's Lect. vol. ii. p. 163. =

8. - 2. Change in the state of the breasts. They are said to grow = larger and=20 more firm; but this enlargement occurs in suppressed menses, and = sometimes at=20 the period of the cessation of the menses; and sometimes they do not = enlarge=20 till after delivery. The dark appearance of the areola is no safe = criterion; and=20 the milky fluid may occur without pregnancy.

9. - 3. The suppression of the menses. Although this usually follows=20 conception, yet in some cases menstruation is carried on till within a = few weeks=20 of delivery. When the suppression takes place, it is not always the = effect of=20 impregnation; it may, and frequently does arise, from, disease. Some = medical=20 authors, however, deem the suppression to be a never failing consequence = of=20 conception.

10. - 4. The loss of appet ite, nausea, vomiting, &c. Although = attendant=20 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=20 of pregnancy this is wanting, but afterwards it can be ascertained. In = cases of=20 concealed pregnancy it cannot be ascertained from the declarations of = the=20 mother, and the examiner must discover it by other means. When the = fcetus is=20 alive, the sudden application of the hand, immediately after it has been = dipped=20 in cold water, over the regions of the uterus, will generally produce a = motion=20 of the foetus; but this is not an infallible test, the foetus may be = dead, or=20 there may be twins; in the first case, then, there will be no motion and = in the=20 latter, the motion is not felt sometimes until a late period. Vide = Quickening.=20

12. - 6. Alteration in the state of the uterus. This is ascertained = by what=20 is technically called the touch. This is an examination, made with the = hand of=20 the examiner, of the uterus.

13. - 7. By the application of auscultation to the impregnated = uterus, it is=20 said certainty can be obtained. The indications of the presence of a = living=20 foetus in the womb, as derived from auscultation, are two: - 1. The = action of=20 the foetal heart This is marked by double pulsations; that of the foetus = generally exceeds in frequency the maternal pulse. These pulsations may = be=20 perceived at the fifth, or between the fifth and sixth months. Their = situation=20 varies with that of the child. 2. The other auscultatory sign to denote = the=20 presence of the foetus has been variously denominated the placental = bellows=20 sound, the placental sound, and the utero placental souffflet. It is = generally=20 agreed that its seat is in the enlarged vessels of the portion of the = uterus=20 which is immediately connected with the placenta. According to Laennec, = it is an=20 arterial pulsation perfectly isochronous with the pulse of the mother, = and=20 accompanied by a rushing noise, resembling the blast of a pair of a = bellows. It=20 commonly begins to be beard with the aid of the stethoscope, (an = instrument=20 invented by Professor Laennec of Paris, for examining the chest) at the = end of=20 the fourth month of pregnancy. In the case of twins, Laennec detected = the=20 pulsation of two foetal hearts before delivery, by means of this = instrument.=20

14. - 8. Another sign of pregnancy has been discovered, which is said = by M.=20 Jaquemin never to fail. It is the peculiar dark color which the mucous = merabrane=20 of the vagina acquires during this state. It was only after an = examination of=20 four thousand five hundred women that M. Jacquemin came to the = conclusion which=20 be formed of the certainty of this sign. Parent Duchatellet, De la = Prostitution=20 dans la ville de Paris, c, 3, 5.

15. It is, always difficult though perhaps not impossible to = ascertain the=20 presence of the foetus, and on the other band, many of the signs which = would=20 indicate such presence, have been known to fail. 1 Beck's Med. Jur. ch. = Chit.=20 Med. Jur. b. t.; Ryan's Med. Jur. 112, 113; Allison's Princ. of the Cr., = Law of=20 Scotl. ch. 3, p. 153; 1 Briand, Med. Leg. c. 3.

16.- 2. The duration of human pregnancy is not certain, and probably = is not=20 the same in every woman. It may perbaps be safely stated that forty = weeks is the=20 ordinary duration, though much discussion has taken place among = medico-legal=20 writers on this subject, and opinions fluctuate largely. 1 Beck's Med. = Jur. 862.=20 This is occasioned perhaps by the difficulty of ascertaining the time = from which=20 this period begins to run. Chit. Med. Jur. 409; Dewees, Midwifery, 125; = 1 Paris=20 & Fonbl. 218, 230, 245; 2 Dunglison's Human Physiology, 362; Rvan's = Med.=20 Jur. 121; 1 Fodere, M4d. Leg. 407-416.

17. - 3. The laws relating to pregnancy are to be considered, first, = in=20 reference to the fact of pregnancy; and, secondly, inrelation to its = duration.=20

18. - 1. As to the fad of pregnancy. There are two cases where the = fact=20 whether a woman is or has been pregnant is of importance; when it is = supposed=20 she pretends pregnancy, and when she is charged with concealing it.

19. - 1st. Pretended pregnancy may arise from two causes: the one = when a=20 widow feigns herself with child, in order to produce a supposititious = heir to=20 the estate. In this case in England the heir presumptive may have a writ = de=20 ventre inspiciendo, to examine whether she be with child or not; and if = she be,=20 to keep her under proper restraint until delivered; but if, upon = examination,=20 the widow be found not pregnant, the presumptive heir shall be admitted = to the=20 inheritance, though liable to lose it again on the birth of a child = within forty=20 weeks from the death of the hushand. 1 Bl. Com. 456; Cro. Eliz. 566; 4 = Bro. C.=20 C. 90; 2 P. Wms. 591; Cox's C. C. 297. In the civil law there was a = similar=20 practice. Dig. 25, 4.

20. The second cause of pretended pregnancy occurs when a woman has = been=20 sentenced to death, for the commission of a crime. At common law, in = case this=20 plea be made before execution, the court must direct a jury of twelve = matrons,=20 or discreet women, to ascertain the fact, and if they bring in their = verdict=20 quick with child, execution shall be staid generally till the next = session of=20 the court, and so from session to session till either she be delivered, = or=20 proves by the lapse of time, not to have been with child at all. 4 Bl. = Com. 394,=20 395; 1 Bay, 487. It is proper to remark that a verdict of the matrons = that the=20 woman is pregnant is not sufficient, she must be found to be quick with = child.=20 (q. v.)

21. Whether under the English law a woman would be hanged who could = be proved=20 to be privement enceinte, beyond all doubt, is not certain; but in this = country,=20 it is presumed if it could be made to appear, indubitably: that the = woman was=20 pregnant, though not quick with child, the execution would be respited = until=20 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=20 pleaded pregnancy. Twelve married women were impanneled on the jury; = after an=20 hour's examination, they returned a verdict that she was not quick with = child.=20 She was ordered for execution. Fortunately three of the principal = surgeons in=20 the place, fearing some error, waited upon the convict and examined her; = they=20 found her not only pregnant, but quick with child. The matter was = represented to=20 the judge, who respited the execution, and on the 11th day of July she = was=20 safely delivered of a living child. London Medical Gazette, vol. xii. p. = 24,=20 585. 22. In New York it is provided by legislative enactment, (2 Rev. = Stat.=20 658,) that "if a female convict, sentenced to the punishment of death, = be=20 pregnant, the sheriff shall summon a jury of six physicians, and shall = give=20 notice to the district attorney, who shall have power to subpoena = witnesses. If,=20 on such inquisition, it shall appear that the female is quick with = child, the=20 sheriff shall suspend the execution, and transmit the inquisition to the = governor. Whenever the governor shall be satisfied that she is no longer = quick=20 with child, he shall issue Iiis warrant for execution, or commute it, by = imprisonment for life in the state prison."

23. By the laws of. Franco, "if a woman condemned to death declares = herself=20 to be pregnant, and it is verified that she is pregnant, she shall not = suffer=20 her punishment till after her delivery. Code Penal, art. 27.

24. - 2d. Concealed pregnancy seldom takes place except for the = criminal=20 purpose of destroying the life of the foetus in utero, or of the child=20 immediately after its birth. The extreme facility of extinguishing the = infant=20 life, at the time, or shortly after birth,, and the experienced = difficulty of=20 proving this unnatural crime, has induced the passage of laws, in = perhaps all=20 the states, as well as in England and other countries, calculated to = facilitate=20 the proof, land also to punish the very act of concealment of pregnancy = and=20 death of the child, when, if born alive, it would have been a bastard. = The=20 English statute of 21 Jac. 1, c. 27, required that any mother of such = child who=20 had endeavored to conceal its birth, should prove, by one witness at = least, that=20 the child was actually born dead; and for want of such proof it arrived = at the=20 forced conclusion that the mother murdered it. But it was considered a = blot upon=20 even the English code, and it was therefore repealed by 43 Geo. III. c. = 58, s.=20 3. An act of assembly of Pennsylvania, of the 31st May, 1781, made the=20 concealment of the death of a bastard child conclusive evidence to = convict the=20 mother of murder; which was repealed by the act of 5th of April, 1790, = s. 6,=20 which declared that the constrained presumption that the child whose = death is=20 concealed, was therefore murdered by the mother, shall not be sufficient = to=20 convict the party indicted, without probable presumptive proof is given = that the=20 child was born alive. The law was further modified by the act of 22d of = April,=20 1794, s. 18, which declares that the concealment of the death of any = such child=20 shall not be conclusive evidence to convict the party indicted of the = murder of=20 her child, unless the circumstances attending it be such as shall = satisfy the=20 mind of the jury, that she did wilfully and maliciously troy take away = the life=20 of such a child. The last mentioned act, section 17, punishes the = concealment of=20 the death of a bastard child by fine and imprisonment. See, for the law = of=20 Connecticut on the subject, 2 Swift's Digest, 296. See Alison's = Principles of=20 the Criminal Law of Scotland, ch. 3.

26. - 2. As to the duration of pregnancy. Lord Coke lays down the = peremptory=20 rule that forty weeks is the longest time allowed by law for gestation. = Co.=20 Litt. 123. There does not, however, appear to be any time fixed by the = law as to=20 the duration of pregnancy. Note by Hargr. & Butler, to 1 Inst. 123, = b: 1=20 Rolle's Ab. 356, 1. 10; Cro. Jac. 541; Palm. 9.

27. The civil code of Louisiana provides that the child capable of = living,=20 which is born before the one hundred and eightieth day after the = marriage, is=20 not presumed to be the child of the hushand; every child born alive more = than=20 six months after conception, is presumed to be capable of living. Art. = 205. The=20 same rule applies with respect to the child born three hundred days = after the=20 dissolution of the marriage, or after sentence of separation e and = board. Art.=20 206. The Code Civil of France contains the following provision. The = child=20 conceived during the marriage, has the hushand for its father. = Nevertheless the=20 hushand may disavow the child, if he can prove that during the time that = has=20 elapsed between the three hundredth and the one hundred and eightieth = before its=20 birth he was prevented either by absence, or in consequence of some = accident, or=20 on account of some physical impossibility, from cohabiting with his = wife. Art.=20 312. A child born before the one hundred and eightieth day after the = marriage=20 cannot be disavowed by the hushand in the following cases: - l. When he = had=20 knowledge of the pregnancy before the marriage; 2. When he has assisted = in=20 writing the act of birth, [a certificate stating the birth and sex of = the child,=20 the time when born, &c. required by law to be filed with a proper = officer=20 and recorded,] and when that act has been signed by him, or when it = contains his=20 declaration that he cannot sign;

3. When the child is not declared capable of living. Art. 314. And = the=20 legitimacy of a child born three hundred days after the dissolution of = the=20 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=20 affirmative pregnant, or negative pregnant. See Affirmative pregnant; = Negative=20 pregnant.

PREJUDICE. To decide beforehand; to lean in favor of one side = of a=20 cause for some reason or other than its justice.

2. A judge ought to be without prejudice, and he cannot therefore sit = in a=20 case where he has any interest, or when a near relation is a partt, or = where he=20 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=20 man should never prejudice another. Dig. 60, 17, 74.

PRELATE. The name of an ecclesiastical officer. There are two = orders=20 of prelates; the first is composed of bishops, and the second, of = abbots,=20 generals of orders, deans, &c.;

PRELEVEMENT, French law. The portion which a partner is = entitled to=20 take out of the assets of a firm before any sion shall be made of the = remainder=20 of the assets, between the partners.

2. The partner who is entitled to a prelevement is not a creditor of = the=20 partnership; on the contrary he is a part owner for if the assets should = be=20 deficient, a creditor has a preference over the partner; on the other = hand,=20 should the assets yield any profit, the partner is entitled to his = portion of=20 it, whereas the creditor is entitled to no part of it, but he has a = right to=20 charge interest, when he is in other respects entitled to it.

PREHENSION. The lawful taking of a thing with an intent to, = assert a=20 right in it.

PRELIMINARY. Something which precedes, as preliminaries of = peace,=20 which are the first sketch of a treaty, and contain the principal = articles on=20 which both parties are desirous of concluding, and which are to serve as = the=20 basis of the treaty.

PREMEDITATION. A design formed to commit a crime or to do some = other=20 thing before it is done.

2. Premeditation differs essentially from will, which constitutes the = crime,=20 because it supposes besides an actual will, a deliberation and a = continued=20 persistance which indicate more perversity. The preparation of arms or = other=20 instruments required for the execution of the crime, are indications of = a=20 premeditation, but are not absolute proof of it, as these preparations = may have=20 been intended for other purposes, and then suddenly changed to the = performance=20 of the criminal act. Murder by poisoning must of necessity be done with=20 premeditation. See Aforethought; Murder.

PREMISES. that which is put before. The word has several=20 significations; sometimes it means the statements which have been before = made;=20 as, I act upon these premises; in this sense, this word may comprise a = variety=20 of subjects, having no connexion among themselves; 1 East, R. 456; it = signifies=20 a formal part of a deed; and it is made to designate an estate.

PREMISES, estates. Lands and tenements are usually, called = premises,=20 when particularly spoken of; as, the premises will be sold without = reserve. 1=20 East, R. 453.

PREMISES, conveyancing. That part in the beginning of a deed, = in which=20 are set forth the names of the parties, with their titles ana additions, = and in=20 which are recited such deeds, agreements, or matters of fact, as are = necessary=20 to explain the reasons upon which the contract then entered into is = founded; and=20 it is here also the consideration on which it is made, is set down, and = the=20 certainty of the thing granted. 2 Bl. Com. 298. The technical meaning of = the=20 premises in a deed, is every thing which precedes the habendum. 8 Mass. = R. 174;=20 6 Conn. R. 289. Vide Deed.

PREMISES, equity pleading. That part of a bill usually = denominated the=20 stating part of the bill. It contains a narrative of the facts and = circumstances=20 of the plaintiff's case, and the wrongs of which he complains, and the = names of=20 the persons by whom done, and against whom he seeks redress. Coop. Eq. = Pl..9;=20 Bart. Suit in equity, 27; Mitf. Eq. Pl. by Jeremy, 43; Story, Eq. Pl. = 27; 4=20 Bouv, Inst. n. 4158.

PREMIUM, contracts. The consideration paid by the insured to = the=20 insurer for making an insurance. It is so called because it is paid = primo, or=20 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=20 underwritten; for insurances are frequently effected by brokers, and = open=20 accounts are kept between them and the underwriters, in which they make=20 themselves debtors for all premiums;, and sometimes notes or bills are = given for=20 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=20 to the nature of the case. Thus, they call it interest when it is = stipulated to=20 be paid by the month or at other stated periods. It is a premium, when a = gross=20 sum is to be paid at the end of a voyage, and here the risk is the = principal=20 object which they have in view. When the sum is a percentage on the = money lent,=20 they denominate it exchange, considering it in the light of money lent = in one=20 place to be returned in another, with a difference in amount between the = sum=20 borrowed and that which is paid, arising from the difference of time and = place.=20 When they intend to combine these various shades into one general = denomination,=20 they make use of the term maritime profit, to convey their meaning. Hall = on Mar.=20 Loans, 56, n. Vide Park, Ills. h. t. Poth. h. t.; 3 Kent, Com. 285; 15 = East, R.=20 309, 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=20 a woman with whom he has illicit intercourse a certain sum of money. = When the=20 contract is made as the payment of past cohabitation, as between the = parties, it=20 is good, and will be enforced against the obligor, his heirs, executors = and=20 administrators, but it cannot be paid, on a deficiency of assets, until = all cred=20 itors are paid, though it has a preference over the heir, next of kin, = or=20 devisee. If the contract be for future cohabitation, it is void. Chit. = Contr.=20 215; 1 Story, Eq. Jur. 296; 5 Ves. 286; 2 P. Wms. 432; 1 Black. R. 517; = 3 Burr.=20 1568; 1 Fonbl. Eq, B. 1, a. 4, 4, and notes s and y; 1 Ball & Beat. = 360; 7=20 Ves. 470; 11 Ves. 535; Rob. Fraud. Conv. 428; Cas. Temp. Talb. 153; and = the=20 cases there cited; 6 Ham. R. 21; 5 Cowen, R. 253; Harper, R. 201; 3 = Mont. R. 35;=20 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=20 taking a thing before it is offered,; hence the phrase of law, it lies = in=20 render, but not in prender. Vide A prendre; and Gale and Whatley on = Easements,=20 1.

PROENOMEN. The first or Christian name of a person; Benjamin = is the=20 proenomen of Benjamin Franklin. See Cas. temp. Hard. 286; 1 Tayl. 148. =

PREPENSE. The same as aforethought. (q. v.) Vide 2 Chit. Cr. = Law,=20 *784.

PREROGATIVE, civil law. The privilege, preeminence, or = advantage which=20 one person has over another; thus a person vested with an office, is = entitled to=20 all the rights, privileges, prerogatives, &c. which belong to it. =

PREROGATIVE, English law. The royal prerogative is an = arbitrary power=20 vested in the executive to do good and not evil. Rutherf. Inst. 279; Co. = Litt.=20 90; Chit. on Prerog.; Bac. Ab. h. t.

PREROGATIVE COURT, eccles. law. The name of a court in England = in=20 which all testaments are proved and administrations granted, when the = deceased=20 has left bona notabilia in the province in some other diocese than that = in which=20 he died. 4 Inst. 335.

2. The testamentary courts of the two archbishops, in their = respective=20 provinces, are styled prerogative courts, from the prerogative of each=20 archbishop to grant probates and administrations, where there are bona,=20 notabilia; but still these are only inferior and subordinate = jurisdictions; and=20 the style of these courts has no connexion with the royal prerogative.=20 Derivatively, these courts are the king's ecclesiastical courts; but=20 immediately, they are only the courts of the ecclesiastical ordinary. = The=20 ordinary, and not the crown, appoints the judges of these courts; they = are=20 subject to the control of the king's courts of chancery and common law, = in case=20 they exceed their jurisdiction; and they are subject in some instances = to the=20 command of these courts, if they decline to exercise their jurisdiction, = when by=20 law they ought to exercise it. Per Sir John Nicholl, In the Goods of = George=20 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=20 uninterrupted possession or use during the time required by law. The = possession=20 must have been possessio longa, continua, et pacifica, nec sit ligitima=20 interruptio, long, continued, peaceable, and without lawful = interruption. Domat,=20 Loix Civ. liv. 3, t. 29, s. 1; Bract. 52, 222, 226; Co. Litt. 113, b; = Pour=20 pouvoir prescire, says the Code Civil, 1. 3, t. 20, art. 22, 29, il faut = une=20 possession continue et non interrompue, paisible, publique, et a titre = de=20 proprietaire. See Knapp's R. 79.

2. The law presumes a grant before the time of legal memory when the = party=20 claiming by prescription, or those from whom he holds, have had adverse = or=20 uninterrupted possession of the property or rights claimed by = prescription. This=20 presumption may be a mere fiction, the commencement of the user being = tor-tious;=20 no prescription can, however, be sustained, which is not consistent with = such a=20 presumption.

3. Twenty years uninterrupted user of a way is prima facie evidence = of a=20 prescrptive right. 1 Saund. 323, a; 10 East, 476; 2 Br. & Bing. 403; = Cowp.=20 215; 2 Wils. 53. The subject of prescription are the several kinds of=20 incorporeal rights. Vide, generally, 2 Chit. Bl. 35, n. 24; Amer. = Jurist, No.=20 37, p. 96; 17 Vin. Ab. 256; 7 com. Dig. 93; Rutherf. Inst. 63; Co. Litt. = 113; 2=20 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=20 of acquiring property, or of discharging debts, by the effect of time, = and under=20 the conditions regulated by law. For the law relating to prescription in = that=20 state, see Code, art. 8420 to 3521. For the difference between the = meaning of=20 the term prescription as understood by the common law, and the same term = in the=20 civil law, see 1 Bro. Civ. Law, 246.

5. The prescription which has the effect to liberate a creditor, is a = mere=20 bar which the debtor may oppose to the creditor, who has neglected to = exercise=20 his rights, or procured them to be acknowledged during the time = prescribed by=20 law. The debtor acquires this right without any act on his part, it = resalts=20 entirely from the negligence of the creditor. The prescription does not=20 extinguish the debt, it merely places a bar in the hands of the debtor, = which he=20 may use or not at his choice against the creditor. The debtor may = therefore=20 abandon this defence, which has been acquired by mere lapse of time, = either by=20 paying the debt, or acknowledging it. If he pay it, he cannot recover = back the=20 money so paid, and if he acknowledge it, he may be constrained to pay = it. Poth.=20 Intr. au titre xiv. des Prescriptions, Bect. 2. Vide Bouv. Inst. Theo. = pars=20 prima, c. 1, art. 1, 4, s. 3; Limitations.

PRESENCE. The existence of a person in a particular place. =

2. In many contracts and judicial proceedings it is necessary that = the=20 parties should be present in order to reader them valid; for example, a = party to=20 a deed when it is executed by himself, must personally acknowledge it, = when such=20 acknowledgment is required by law, to give it its full force aud effect, = and his=20 presence is indispensable, unless, indeed, another person represent him = as his=20 attoruey, having authority from him for that purpose.

3. In the criminal law, presence is actual or constructive. When a = larceny is=20 committed in a house by two men, united in the same design, and one of = them goes=20 into the house, arid commits the crime, while the other is on the = outside=20 watching to prevent a surprise, the former is actually, an the latter=20 constructively, present.

4. It is a rule in the civil law, that he who is incapable of giving = his=20 consent to an act, is not to be considered present, although he be = actually in=20 the place; a lunatic, or a man sleeping, would not therefore be = considered=20 present. Dig. 41, 2, 1, 3. And so, if insensible; 1 Dougl. 241; 4 Bro. = P. R. 71;=20 3 Russ. 441; or if the act were done secretly so that he knew nothing of = it. 1=20 P. Wms. 740.

5. The English statute of fraud, 5, directs that all devises and = bequests of=20 any lands or tenements shall be attested or subscribed in the presence = of said=20 devisor. Under this statute it has been decided that an actual presence = is not=20 indispensable, but that where there was a constructive presence it was=20 sufficient; as, where the testatrix executed the will in her carriage = stand- ing=20 in the street before the office of her solicitor, the witness retired = into the=20 office to attest it, and it being proved that the carriage was = accidentally put=20 back, so that she was in a situation to see the witness sign the will = through=20 the window of the office. Bro. Ch. C. 98; see 2 Curt. R. 320; 2 Salk. = 688; 3=20 Russ. R. 441; 1 Maule & Selw. 294; 2 Car.& P. 491 2 Curt. R. = 331. Vide=20 Constructive.

PRESENT. A gift, or wore properly the thing given. It is = provided by=20 the constitution of the United States, art. 1, s. 9, n, 7, that "no = person=20 holding any office of profit or trust under them, [the United States] = shall,=20 without the consent of congress, accept of any present, emolument, or = office, or=20 title of any kind whatever, from any king, prince, or foreign state." =

PRESENTS. This word signifies the writing then actually made = and=20 spoken of; as, these presents; know all men by these presents, to all to = whom=20 these presents shall come.

PRESENTATION, eccl. law. The act of a patron offering his = clerk to the=20 bishop of the diocese to be instituted in a church or benefice.

PRESENTEE, eccles. law., A clerk who has been presented by his = patron=20 to a bishop in order to be instituted in a church.

PRESENTMENT, crim. law, practice. The written notice taken by = a grand=20 jury of any offence, from their own knowledge or observation, without = any bill=20 of indictment laid before them at the suit of the government; 4 Bl. Com. = 301;=20 upon such presentment, when 'proper, the officer emloyed to prosecute,=20 afterwards frames a till of indictment, which is then sent to the grand = jury,=20 and they find it to be a true bill. In an extended sense presentments = include=20 not only what is properly so called, but also inquisitions of office, = and=20 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,=20 that the former is found by a grand jury authorized to inquire of = offences=20 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.=20 Vide, generally, Com. Dig. Indictment, B Bac. Ab. Indictment, A 1 Chit. = Cr. Law,=20 163; 7 East, R. 387 1 Meigs. 112; 11 Humph. 12.

3. The writing which contains the accusation so presented by a grand = jury, is=20 also called a presentment. Vide 1 Brock. C. C. R. 156; Grand Jury.

PRESENTMENT, contracts. The production of a bill of exchange = or=20 promissory note to the party on whom the former is drawn, for his = acceptance, or=20 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=20 responsible to him, to present it in due time for acceptance, and to = give=20 notice, if it be dishonored, to all tho parties he intends to hold = liable. And=20 when a bill or note becomes payable, it must be presented for payment. =

3. The principal circumstances concerning presentment, are the person = to=20 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=20 a note, or the drawee of a bill for acceptance, or to the acceptor, for = payment;=20 but a presentment made at a particular place, when pavable there, is in = general=20 sufficient. A personal demand on the drawee or acceptor is not = necessary; a=20 demand at his usual place of residence of his wife or other agent is = sufficient.=20 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=20 presentment, as we have seen, may be made there; but when the acceptance = is=20 general, it must be presented at the house or place of business of the = acceptor.=20 3 Kent, Com. 64, 65.

6. - 3. In treating of the time for presentment, it must be = considered with=20 reference, 1st. To a presentment for acceptance. 2d. To one for payment. = 1st.=20 When the bill is payable at sight, or after sight, the presentment must = be made=20 in reasonable time; and what this reasonable time is depends upon the=20 circumstances of each case. 7 Taunt. 397; 1 Dall. 255; 2 Dall. 192; = Ibid. 232; 4=20 Dall. 165; Ibid. 129; 1 Yeates, 531; 7 Serg. & Rawle, 324; 1 Yeates = 147. 2d.=20 The presentment of a note or bill for payment ought to be made on the = day it=20 becomes due, and notice of non-payment given, otherwise the holder will = lose the=20 security of the drawer and endorsers of a bill and the endorsers of a = promissory=20 note, and in case the note or bill be payable at a particular place and = the=20 money lodged there for its payment, the holder would probably have no = recourse=20 against the maker or acceptor, if he did not present them on the day, = and the=20 money should be lost. 5 Barn. & Ald. 244. Vide 5 Com. Dig. 134; 2 = John. Cas.=20 75; 3 John. R. 230; 2 Caines' Rep. 343; 18 John. R. 230; 2 John. R. 146, = 168,=20 176; 2 Wheat. 373; Chit. on Bills, Index, h. t.; Smith on Mer. Law, 138; = Byles=20 on Bills, 102.

7. The excuses for not making a presentment are general or applicable = to all=20 persons, who are endorsers; or they are special and applicable to the=20 particular' endorser only.

8. - 1. Among the former are, 1. Inevitable accident or overwhelming=20 calamity; Story on Bills, 308; 3 Wend. 488; 2 Smith's R. 224. 2. The = prevalence=20 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=20 breaking out of war between the country of the maker and that of the = holder. 4.=20 The occupation of the country where the note is payable or where the = parties=20 live, by a public enemy, which suspends commercial operations and = intercourse. 8=20 Cranch, 155 15 John. 57; 16 John. 438 7 Pet. 586 2 Brock. 20; 2 Smith's = R. 224.=20 51. The obstruction of the ordinary negotiations of trade by the vi's = maj or. 6.=20 Positive interdictions and public regulations of the state which suspend = commerce and intercourse. 7. The utter impracticability of finding the = maker, or=20 ascertaining his place of residence. Story on Pr. N. 205, 236, 238, 241, = 264.=20

9. - 2. Among the latter or special excuses for not making a = presentment may=20 be enumerated the following: 1. The receiving the note by the holder = from the=20 payee, or other antecedent party, too late to make a due presentment; = this will=20 be an excuse as to such party. 16 East, 248; 7 Mass. 483; Story, P. N. = 201, 265;=20 11 Wheat. 431 2 Wheat. 373. 2. The note being an accommodation note of = the maker=20 for the benefit of the endorser. Story on Bills, 370; see 2 Brock. 20; 7 = Harr.=20 & J. 381; 7 Mass. 452; 1 Wash. C. C. R. 461; 2 Wash. C. C. R. 514; 1 = Rayw.=20 271; 4 Mason, 113; 1 Har. & G. 468; 1 Caines, 157; 1 Stew. 175; 5 = Pick. 88;=20 21 Pick. 327. 3. A special agreement by which the endorser waives the=20 presentment. 8 Greenl. 213; 11 Wheat. 629; Story on Bills, 371, 373; 6 = Wheat.=20 572. 4. The receiving security or money by an endorser to secure himself = from=20 loss, or to pay the note at maturity. In this case, when the indemnity = or money=20 is a full security for the amount of the note or bill, no presentment is = requisite. Story on Bills, 374; Story on P. N. 281; 4 Watts, 328.; 9 = Gill &=20 John. 47; 7 Wend. 165; 2 Greenl. 207; 5 Mass. l70; 5 Conn. 175. 5. The = receiving=20 the note by the holder from the endorser, as a collateral security for = another=20 debt. Story on Pr. Notes, 284; Story on Bills, 372; 2 How. S. C. R. 427, = 457.=20

10. A want of presentment may be waived by the party to be affected, = after a=20 full knowledge of the fact. 8 S. & R. 438; see 6 Wend. 658; 3 Bibb, = 102; 5=20 John. 385; 4 Mass. 347; 7 Mass. 452; Wash. C. C. R. 506; Bac. Ab. = Merchant,=20 &c. M. Vide, generally, 1 Hare & Wall. Sel. Dec. 214, 224. See = Notice of=20 dishonor.

PRESERVATION. keeping safe from harm; avoiding injury. This = term=20 always presupposes a real or existing danger.

2. A jettison, which is always for the preservation of the remainder = of the=20 cargo, must therefore be made only when there is a real danger existing. = See=20 Average; Jettison.

PRESIDENT. An officer of a company who is to direct the manner = in=20 which business is to be transacted. From the decision of the president = there is=20 an appeal to the body over which he presides.

PRESIDENT OF THE UNITED STATES OF AMERICA. This is the title = of the=20 executive officer of this country.

2. The constitution directs that the executive power shall be vested = in a=20 president of the United States of America. Art. 2, s. 1.

3. This subject will be examined by considering, 1. His = qualifications. 2.=20 His election. 3. The duration of his office. 4. His compensation. 5. His = powers.=20

4. - 1. No person except a natural born a citizen, or a citizen of = the United=20 States at the time of the adoption of this constitution, shall be = eligible to=20 the office of president neither shall any person be eligible to that = office who=20 shall not have attained the age of thirty-five years, and been fourteen = years a=20 resident within the United States. Art. 2, s. 1, n. 5. In case of the = removal of=20 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=20 the vice-president; and the congress may by law provide for the removal, = death,=20 resignation, or inability both of the president and vice-president, = declaring=20 what officer shall then act as president and such officer shall act = accordingly,=20 until the disability be removed, or a president shall be elected. Art. = 2, s. 1,=20 n. 6.

5. - 2. He is chosen by electors of president. (q. v.) See Const. U. = S. art.=20 2, s. 1, n. 2, 3, and 4; 1 Kent, Com. 273 Story on the Constit. 1447, et = seq.=20 After his election and before he enters on the execution of his office, = he shall=20 take the following oath or affirmation: "I do solemnly swear (or affirm) = that I=20 will faithfully execute the office of president of the United States, = and will,=20 to the best of my ability, preserve, protect and defend the constitution = of the=20 United States." Article 2, s. 1, n. 8 and 9.

6. - 3. He holds his office for the term of four years; art. 2, s. 1, = n. 1;=20 he is reeligible for successive terms, but no one has ventured, contrary = to=20 public opinion, to be a candidate for a third term.

7. - 4. The president shall, at stated times, receive for his = services, a=20 compensation which shall neither be increased nor diminished during the = period=20 for which he shall have been elected; and he shall not receive, within = that=20 period, any other emolument from the United States, or any of them. Art. = 2,=20 sect. 1, n. 7. The act of the 24th September, 1789, ch. 19, fixed the = salary of=20 the president at twenty-five thousand dollars. This is his salary now. =

8. - 5. The powers of the president are to be exercised by him alone, = or by=20 him with the concurrence of the senate.

9. - 1. The constitution has vested in him alone, the following = powers: be is=20 commander-in-chief of the army and navy of the United States, and of the = militia=20 of the several states, when called into the actual service of the United = States;=20 he may require the opinion, in writing, of the principal officers of = each of the=20 executive departments, upon any subject relating to the duties of their=20 respective offices; and he shall have the power to grant reprieves and = pardons=20 for offences against the United States, except in cases of impeachluent. = Art. 2,=20 s. 2, n. 2. He may appoint all officers of the United States, whose = appointments=20 are not otherwise provided for in the constitution, and which shall be=20 established by law, when congress shall vest the appointment of such = officers in=20 the president alone. Art. 2, s. 2, n. 2. He shall have power to fill up = all=20 vacancies that may happen during the recess of the senate, by granting=20 commissions, which shall expire at the end of their next session. Art. = 2, sect.=20 2, n. 3. He shall from time to time give congress information of the = state of=20 the Union, and recommend to their consideration such measures as he = shall judge=20 necessary and expedient; he may, on extraordinary occasions, convene = both=20 houses, or either of them, and in case of disagreement between them with = respect=20 to the time of adjournment, he may adjourn them to such time as he shall = think=20 proper he shall receive ambassadors and other public ministers; he shall = take=20 care that the laws be faithfully executed, and shall commission all = officers of=20 the United States.

10. - 2. His power, with the concurrence of the senate, is as = follows: to=20 make treaties, provided two-thirds of the senators present concur; = nominate, and=20 by and with the advice and consent of the senate, shall appoint = ambassadors,=20 other public ministers and consuls, judges of the supreme court, and all = other=20 officers of the United States whose appointments are not provided for in = the=20 constitution, and which have been established by law; but the congress = may by=20 law vest the appointment of such inferior officers, as they shall think = proper,=20 in the president alone, in the courts of law, or in the heads of = departments.=20 Art. 2, s. 2, n. 2. Vide 1 Kent, Com. Lect. 13; Story on the Const. B. = 3, ch.=20 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=20 is free.

2. All men have a right to print and publish whatever they may deem = proper,=20 unless by doing so they infringe the rights of another, as in the case = of=20 copyrights, (q. v.) when they may be enjoined. For any injury they may = commit=20 against the public or individuals they may be punished, either by = indictment, or=20 by a civil action at the suit of the party injured, when the injury has = been=20 committed against a private individual. Vide Const. of the U. S. Amendm. = art. 1,=20 and Liberty of the Press.

PRESUMPTION, evidence. An inference as to the existence of one = fact,=20 from the existence of some other fact, founded on a previous experience = of their=20 connexion. 3 Stark. Ev. 1234; 1 Phil. Ev. 116; Gilb. Ev. 142; Poth. Tr. = des. Ob.=20 part. 4, c. 3, s. 2, n. 840. Or it, is an opinion, which circumstances, = give=20 rise to, relative to a matter of fact, which they are supposed to = attend.=20 Menthuel sur les Conventions, liv. 1, tit. 5.

2. To constitute such a presumption, a previous experience of the = connexion=20 between the known and inferred facts is essential, of such a nature that = as soon=20 as the existence of the one is established, admitted or assumed, an = inference as=20 to the existence of the other arises, independently of any reasoning = upon the=20 subject. It follows that an inference may be certain or not certain, but = merely,=20 probable, and therefore capable of being rebutted by contrary proof. =

3. In general a presumption is more or less strong according as the = fact=20 presumed is a necessary, usual or infrequent consequence of the fact or = facts=20 seen, known, or proven. When the fact inferred is the necessary = consequence of=20 the fact or facts known, the presumption amounts to a proof when it is = the=20 usual, but not invariable consequence, the presumption is weak; but when = it is=20 sometimes, although rarely,the consequence of the fact or facts known, = the=20 presumption is of no weight. Menthuel sur les Conventions, tit. 5. See = Domat,=20 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=20 technical or artificial, operation and effect, beyond their mere = natural.=20 tendency to produce belief, and operate uniformly, without applying the = process=20 of reasoning on which they are founded, to the circumstances of the = particular=20 case. For instance, at the expiration of twenty years, without payment = of=20 interest on a bond, or other acknowledgment of its existence, = satisfaction is to=20 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=20 evidently an artificial and arbitrary distinction. 4 Greenl. 270; 10 = John. R.=20 338; 9 Cowen, R. 653; 2 M'Cord, R. 439; 4 Burr. 1963; Lofft, 320; 1 T. = R. 271; 6=20 East, R. 215; 1 Campb. R. 29. An example of another nature is given = under this=20 head by the civilians. If a mother and her infant at the breast perish = in the=20 same conflagration, the law presumes that the mother survived, and that = the=20 infant perished first, on account of its weakness, and on this ground = the=20 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=20 itself, or presumptions of mere law; secondly, such as are to be made by = a jury,=20 or presumptions of law and fact.

7. - 1st. Presumptions of mere law, are either absolute and = conclusive; as,=20 for instance, the presumption of law that a bond or other specialty was = executed=20 upon a good consideration, cannot be rebutted by evidence, so long as = the=20 instrument is not impeached for fraud; 4 Burr. 2225; or they are not = absolute,=20 and may be rebutted evidence; for example, the law presumes that a bill = of=20 exchange was accepted on a good consideration, but that presumption may = be=20 rebutted by proof to the contrary.

8. - 2d. Presumptions of law and fact are such artificial = presumptions as are=20 recognized aud warranted by the law as the pro er inferences to be made = by=20 juries under particular circumstances; for instance, au unqualified = refusal to=20 deliver up the goods on demand made by the owner, does not fall within = any=20 definition of a conversion, but inasmuch as the detention is attended = with all=20 the evils of a conversion to the owner, the law makes it, in its effects = and=20 consequences, equivalent to a conversion, by directing or advising the = jury to=20 infer a conversion from the facts of demand and refusal.

9. - 2. Natural presumptions depend upon their own form and efficacy = in=20 generating belief or conviction on the mind, as derived from these = connexions=20 which are pointed out by experience; they are wholly independent of any=20 artificial connexions and relations, and differ from mere presumptions = of law in=20 this essential respect, that those depend, or rather are a branch of the = particular system of jurisprudence to which they belong; but mere = natural=20 presumptions are derived wholly by means of the common experience of = mankind,=20 from the course of nature and the ordinary habits of society. Vide, = generally,=20 Stark. Ev. h. t.; 1 Phil. Ev. 116; Civ. Code of Lo. 2263 to 2267; 17 = Vin. Ab.=20 567; 12 Id. 124; 1 Supp. to Ves. jr. 37, 188, 489; 2 Id. 51, 223, 442; = Bac. Ab.=20 Evidence, H; Arch. Civ. Pl. 384; Toull. Dr. Civ. Fr. liv. 3, t. 3, o. 4, = s. 3;=20 Poth. Tr. des Obl. part 4, c. 3, s. 2; Matt. on Pres.; Gresl. Eq. Ev. = pt. 3, c.=20 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,=20 would under the present circumstances of things be his heir, but whose = right of=20 inheritance may be defeated by the contingency of some nearer heir being = born;=20 as a brother, who is the presumptive heir, may be defeated by the birth = of a=20 child to the ancestor. 2 Bl. Com. 208.

PRET A USAGE. Loan for use. This phrase is used in the French = law=20 instead of commodatum. (q. v.)

PRETENTION, French law. The claim made to a thing which a = party=20 believes himself entitled to demand, but which is not admitted or = adjudged to be=20 his.

2. The words rights, actions and pretensions, are usually joined, not = that=20 they are synonymous, for right is something positive and certain, action = is what=20 is demanded, while pretention is sometimes not even accompanied by a = demand.=20

PRETERITION, civil law. The omission by a testator of some one = of his=20 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=20 presumed to have been made with design; the preterition of sons by any = other=20 testator was considered as a wrong and avoided the will, except the will = of a=20 soldier in service, which was not subject to so much form.

PRETEXT. The reasons assigned to justify an act, which have = only the=20 appearance of truth, and which are without foundation; or which if true = are not=20 the true reasons for such act. Vattel, liv. 3, c. 3, 32.

PRETIUM AFFECTIONIS. An imaginary value put upon a thing by = the fancy=20 of the owner in his affection for it, or for the person from whom he = obtained=20 it. Bell's Dict. h. t.

2. When an injury has been done to an article, it has been questioned = whether=20 in estimating the damage there is any just ground in any case, for = admitting the=20 pretium affectionis? It seems that when the injury has been done = accidentally by=20 culpable negligence, such an estimation of damages would be unjust, but = when the=20 mischief has been intentional, it ought to be so admitted. Kames on Eq. = 74, 75.=20

PREVARICATION. Praevaricatio, civil law. The acting with=20 unfaithfulness and want of probity. The term is applied principally to = the act=20 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=20 judge.

2. In Pennsylvania it has been ruled that a justice of the peace = cannot take=20 cognizance of a cause which has been previously decided by another = justice. 2=20 Dall. 77; Id. 114.

PRICE, contracts. The consideration in money given for the = purchase of=20 a thing.

2. There are three requisites to the quality of a price iii order to = make a=20 sale.

3. - 1. It must be serious, and such as may be demanded: if, = therefore, a=20 person were to sell me an article, and by the agreement, reduced to = writing, he=20 were to release me from the payment, the transaction would no longer be = a sale,=20 but a gift, Poth. Vente, n. 18.

4. - 2. The second quality of a price is, that the price be certain = and=20 determinate; but what may be rendered certain is considered as certain = if,=20 therefore, I sell a thing at a price to be fixed by a third person, this = is=20 sufficiently certain, provided the third person make a valuation and fix = the=20 price. Poth. Vente, n. 23, 24.

5. - 3. The third quality of a price is, that it consists in money, = to be=20 paid down, or at a future time, for if it be of any thing else, it will = no=20 longer be a price, nor the contract a sale, but exchange or barter. = Poth. Vente,=20 n. 30; 16 Toull. n. 147.

6. The true price of a thing is that for which things of a like = nature and=20 quality are usually sold in the place where situated, if real property; = or in=20 the place where exposed to sale, if personal. Poth. Contr. de Vente, n. = 243. The=20 first price or cost of a thing does not always afford a sure criterion = of its=20 value. It may have been bought very dear or very cheap. Marsh. Ins. 620, = et=20 seq.; Ayliffe's Pand. 447; Merlin, Repert. h. t.; 4 Pick. 179; 8 Pick. = 252; 16=20 Pick. 227.

7. In a declaration in trover it is usual, when the chattel found is = a living=20 one, to lay it as of such a price when dead, of such a value. 8 Wentw. = Pl. 372,=20 n; 2 Lilly's Ab. 629. Vide Bouv. Inst. Index, h. t.; Adjustment; = Inadequacy of=20 price; Pretium offectionis.

PRICE CURRENT. The price for which goods, usually sell in the = market.=20 A printed newspaper containing a list of such prices is also called a = price=20 current.

PRIMA FACIE. The first blush; the first view or appearance of = the=20 business; as, the holder of a bill of exchange, indorsed in blank, is = prima=20 facie its owner.

2. Prima facie evidence of a fact, is in law sufficient to establish = the=20 fact, unless rebutted. 6 Pet. R. 622, 632; 14 Pet. R. 334. See, = generally, 7 J.=20 J. Marsh, 425; 3 N. H. Rep. 484; 3 Stew. & Port. 267; 5 Rand. 701; 1 = Pick.=20 332; 1 South. 77; 1 Yeates, 347; Gilp. 147; 2 N. & McCord, 320; 1 = Miss. 334;=20 11 Conn. 95; 2 Root, 286; 16 John. 66, 136; 1 Bailey, 174: 2 A. K. = Marsh. 244.=20 For example, when buildings are fired by sparks emitted from a = locomotive engine=20 passing along the road, it is prima facie evidence of negligence on the = part of=20 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=20 Chit. Pr. 181.

PRIMAGE, merc. law. A duty payable to the master and mariner = of a ship=20 or vessel; to the master for the use of his cables and ropes to = discharge the=20 goods of the merchant; to the mariners for lading and unlading in any = port or=20 haven. Merch. Dict. h. t.; Abb. on Ship. 270.

2. This payment appears to be of very ancient date, and to be = variously=20 regulated in different voyages and trades. It is sometimes called the = master's=20 hat money. 3 Chit. Com. Law, 431.

PRIMARY. That which is first or principal; as primary = evidence, or=20 that evidence which is to be admitted in the first instance, as = distinguished=20 from secondary evidence, which is allowed only when primary evidence = cannot be=20 had.

2. A primary obligation is one which is the principal object of the = contract;=20 for example, the primary obligation of the seller is to deliver the = thing sold,=20 and to transfer the title to it. It is distinguished from the accessory = or=20 secondary obligation to pay damages for not doing so. 1 Bouv. Inst. n. = 702.

PRIMARY EVIDFNCE. The best evidence of which the case in its = nature is=20 susceptible. 3 Bouv. Inst. n. 3053. Vide Evidence. PRIMARY POWERS. The = principal=20 authority given by a principal to his agent; it differs from mediate = powers. (q.=20 v.) Story, Ag. 58.

PRIMATE, eccles. law.. An archbishop who has jurisdiction over = one or=20 several other metropolitans.

PRIMER ELECTION. A term used to signify first choice.

2. In England, when coparcenary lands are divided, unless it is = otherwise=20 agreed, the eldest sister has the first choice of the purparts; this = part is=20 called the enitia pars. (q. v.) Sometimes the oldest sister makes the = partition,=20 and in that case, to prevent partiality, she takes the last choice. Hob. = 107;=20 Litt. 243, 244, 245; Bac. Ab. Coparceners, C.

PRIMER SEISIN, Eng. law. The right which the king had, when = any of his=20 tenants died seised of a knight's fee, to receive of the heir, provided = he were=20 of fall age, one whole year's profits of the lands, if they were in = immediate=20 possession; and half a year's profits, if the lands were in reversion, = expectant=20 on an estate for life. 2 Bl. Com. 66.

PRIMOGENITURE. The state of being first born the eldest. 2. = Formerly=20 primogeniture gave a title in cases of descent to the oldest son in = preference=20 to the other children; this unjust distinction has been geuerally = abolished in=20 the United States.

PRIMOGENITUS. The first born. 1 Ves. 290 and see 3 M. & S. = 25; 8=20 Taunt. 468; 3 Vern. 660.

PRIMUM DECRETUM. In the courts of admiralty, this name is = given to a=20 provisional decree. Bac. Ab. The Court of Admiralty, E.

PRINCE. In a general sense, a sovereign the ruler of a nation = or=20 state. The son of a king or emperor, or the issue of a royal family; as, = princes=20 of the blood. The chief of any body of men.

2. By a clause inserted in policies of insurance, the insurer is = liable for=20 all losses occasioned by "arrest or detainment of all kings, princes, = and=20 people, of what nation, condition, or quality soever." 1 Bouv. Inst. n. = 1218.=20

PRINCIPAL. This word has several meanings. It is used in = opposition to=20 accessary, to show the degree of crime committed by two persons; thus, = we say,=20 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=20 the following rule: "the incident shall pass by the grant of the = principal, but=20 not the principal by the grant of the incident. Accessorium non ducit, = sed=20 sequitur suum principale." Co. Litt. 152, a.

3. It is used in opposition to agent, and in this sense it signifies = that the=20 principal is the prime mover.

4. It is used in opposition to interest; as, the principal being = secured tho=20 interest will follow.

5. It is lased also in opposition to surety; thus, we say the = principal is=20 answerable before the surety.

6. Principal is used also to denote the more important; as, the = principal=20 person.

7. In the English law, the chief person in some of the inns of = chancery is=20 called principal of the house. Principal is also used to designate the = best of=20 many things as, the best bed, the best table, and the like.

PRINCIPAL, contracts. One who, being competent to contract, = and who is=20 sui juris, employs another to do any act for his own benefit, or on his = own=20 account.

2. As a general rule, it may be said, that every person, sui juris, = is=20 capable of being a principal, for in all cases where a man has power as = owner,=20 or in his own right to do anything, he may do it by another. 16 John. = 86; 9 Co.=20 75; Com. Dig. Attorney, C 1; Heinec. ad Pand. P. 1, lib. 3, tit. 424. =

3. Married women, and persons who are deprived of understanding, as = idiots,=20 lunatics, and others, not sui juris, are wholly incapable of entering = into any=20 contract, and, consequently, cannot appoint an agent. Infants and = married women=20 are generally, incapable but, under special circumstances, they may make = such=20 appointments. For instance, an infant may make an attorney, when it is = for his=20 benefit; but lie cannot enter into any contract which is to Iiis = prejudice. Com.=20 Dig. Enfant, C 2; Perk. 13; 9 Co. 75; 3 Burr. 1804. A married woman = cannot, in=20 general, appoint an agent or attorney, and when it is requisite that one = should=20 be appointed, the hushand generally appoints for both. Perhaps for her = separate=20 property she may, with her hushand, appoint an agent or attorney; Cro. = Car.=20 165,; 2 Leon. 200; 2 Buls. R. 13; but this seems to be doubted. Cro. = Jac. 617;=20 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=20 which he must perform. These will be briefly considered: 1. The rights = to which=20 principals are entitled arise from obligations due to them by their = agents, or=20 by third persons.

5. - 1st. The rights against their agents, are, 1. To call them to an = account=20 at all times, in relation to the business of their agency. 2. When the = agent=20 violates his obligations to his principal, either by exceeding his = authority, or=20 by positive misconduct, or by mere negligence or omissions in the = discharge of=20 the functions of his agency, or in any other manner, and any loss or = damage=20 falls on his principal, the latter will be entitled to full indemnity. = Paley on=20 Ag. by Lloyd, 7, 71, 74, and note 2 12 Pick. 328; 1 B. & Adolph. = 415; 1=20 Liverm. Ag. 398. 3. The principal has a right to supersede his agent, = where each=20 may maintain a suit against a third person, by suing in his own name; = and he=20 may, by his own intervention, intercept, suspend, or extinguish the = right of the=20 agent under the contract. Paley Ag. by Lloyd, 362; 7 Taunt. 237, 243; 1 = M. &=20 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=20 made by the agent with a third person in the name of his principal, the = latter=20 may enforce it by action. But to this rule there are some exceptions = 1st. When=20 the instrument is under seal, and it has been exclusively made between = the agent=20 and the third person; as, for example, a charter party or bottomry bond = iii this=20 case the principal cannot sue on it. See 1 Paine, Cir. R. 252; 3 W. C. = C. R.=20 560; 1 M. &. S. 573; Abbott, Ship, pt. 3, c. 1, s. 2. 2d. When an = exclusive=20 credit is given to and by the agent, and therefore the principal cannot = be=20 considered in any manner a party to the contract, although he may have=20 authorized