P1:
PACE. A measure of length containing two feet and a half; the
geometrical pace is five feet long. The common pace is the length
of a step; the geometrical is the length of two steps, or the
whole space passed over by the same foot from one step to
another.
PACIFICATION. The act of making peace between two countries
which have teen at war; the restoration of public tranquillity.
TO PACK. To deceive by false appearance; to counterfeit; to
delude; as packing a jury. (q. v.) Bac. Ab. Juries, M; 12 Conn.
R. 262.
PACT, civil law. An agreement made by two or more persons on
the same subject in order to form some engagement, or to dissolve
or modify, one already made, conventio est duorum in idem
placitum consensus de re solvenda, id. est facienda vel
praestanda. Dig. 2, 14; Clef des Lois Rom. h. t.; Ayl. Pand.
558; Merl, Rep. Pacte, h. t.
PACTIONS, International law. When contracts between nations are
to be performed by a single act, and their execution is at an end
at once, they are not called treaties, but agreements,
conventions or pactions. 1 Bouv. Inst. n. 100.
PACTUM CONSTITUTAE PECUNIAE, civil law. An agreement by which a
person appointed to his creditor, a certain day, or a certain
time, at which he pro-mised to pay; or it maybe defined, simply.
an agreement by which a person promises a creditor to pay him.
2. When a person by this pact promises his own creditor to pay
him, there arises a new obligation which does not destroy the
former by which he was already bound, but which is accessory to
it; and by this multiplicity of obligations the right of the
creditor is strengthened. Poth. Ob. Pt. 2, c. 6, s. 9.
3. There is a striking conformity between the pactum
constitutae pecuniae, as above defined, and our indebitatus
assumpsit. The pactum constitutae pecuniae was a promise to pay a
subsisting debt whether natural or civil; made in such a manner
as not to extinguish the preceding debt, and introduced by the
praetor to obviate some formal difficulties. The action of
indebitalus assumpsit was brought upon a promise for the payment
of a debt, it was not subject to the wager of law and other
technical difficulties of the regular action of debt; but by
such promise, the right to the action of debt was not
extinguished nor varied. 4 Rep. 91 to 95; see 1 H. Bl. 550 to
655; Doug. 6, 7; 3 Wood. 168, 169, n. c; 1 Vin. Abr. 270;
Bro. Abr. Action sur le case, pl. 7, 69, 72; Fitzh. N. B. 94, A,
n. a, 145 G; 1 New Rep. 295; Bl. Rep. 850; 1 Chit. Pl. 89;
Toull. Dr. Civ. Fr. liv. 3, t. 3, c. 4, u. 388, 396.
PACTUM DE NON PETANDO, civil law. An agreement made, between a
creditor and his debtor that the former will not demand, from the
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latter the debt due. By this agreement the debtor is freed from
his obligation. This is not unlike the covenant not to sue, (q.
v.) of the common law. Wolff, Dr. de la Nat. §755.
PACTUM DE QUOTA LITIS. An agreement by which a creditor of a
sum difficult to recover, promises a portion, for example,
one-third, to the person who will undertake to recover it. In
general, attorneys will abstain from, making such a contract, yet
it is not unlawful.
PAGODA, comm. law. A denomination of money in Bengal. In the
computation of ad valorem duties, it is valued at one dollar and
ninety-four cent's. Act of March 2, 1799, s. 61, 1 Story's L. U.
S. 626. Vide Foreign Coins.
PAIS, or PAYS. A French word signifying country. In law, matter
in pais is matter of fact in opposition to matter of record: a
trial per pais, is a trial by the country, that is, by a jury.
PALFRIDUS, A palfrey; a horse to travel on. 1 Tho. Co. Litt.
471; F. N. B. 93.
PANDECTS, civil law. The name of an abridgment or compilation
of the civil law, made by order of the emperor Justinian, and to
which he gave the force of law. It is also known by the name of
Digest. (q. v.)
PANEL, practice. A schedule or roll containing the names of
jurors, summoned by virtue of a writ of venire facias, and
annexed to the writ. It is returned into the court whence the
venire issued. Co. Litt. 158, b.
PANNEL, Scotch law. A person, accused of a crime; one
indicted.
PAPER-BOOK, practice. A book or paper containing an abstract of
all the facts and pleadings necessary, to the full understanding
of a case.
2. Courts of error and other courts, on arguments, require that
the judges shall each be furnished with such a paper-book in the
court of king's bench, in England, the transcript containing the
whole of the proceedings, filed or delivered between the parties,
when the issue joined, in an issue in fact, is called the
paper-book. Steph. on Pl. 95; 3 Bl. Com. 317; 3 Chit. Pr. 521;
2 Str. 1131, 1266; 1 Chit. R. 277 2 Wils, R. 243; Tidd, Px.
727.
PAPER DAYS, Eng. law. Days on which special arguments are to
take place. Tuesdays and Fridays in term time are paper days
appointed by the court. Lee's Dict. of Pr. h. t.; Arch. Pr. 101.
PAPER MONEY. By paper money is understood the engagements to
pay money which are issued by governments and banks, and which
pass as money. Pardes. Dr. Com. n. 9. Bank notes are generally
considered as cash, and win answer, all the purposes of currency;
but paper money is not a legal tender if objected to. See Bank
note, Specie, Tender.
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PAR, comm. law. Equal. It is used to denote a state of equality
or equal value. Bills of exchange, stocks, and the like, are at
par when they sell for their nominal value; above par, or below
par, when they sell for more or less.
PARAGE. Equality of name or blood, but more especially of land
in the partition of an inheritance among co-heirs, hence comes
disparage and disparagement. Co. Litt. 166.
PARAGIUM. A Latin term which signifies equality. It is derived
from the adjective par, equal, and made a substantive by the
addition of agium; 1 Tho. Co. Litt. 681.
2. In the ecclesiastical law, by paragium is understood the
portion which a woman gets on her marriage. Ayl. Par. 336.
PARAMOUNT. That which is superior.
2. It is usually applied to the highest lord of the fee, of
lands, tenements, or hereditaments. F. N. B. 135. Where A lets
lands to B, and he underlets them to C, in this case A is the
paramount, and B is the mesne landlord. Vide Mesne, and 2 Bl.
Com. 91; 1 Tho. Co. Litt. 484, n. 79; Id. 485, n. 81.
PARAPHERNALIA. The name given to all such things as a woman has
a right to retain as her own property, after her hushand's death;
they consist generally of her clothing, jewels, and ornaments
suitable to her condition, which she used personally during his
life.
2. These, when not extravagant, she has a right to retain even
against creditors; and, although in his lifetime the hushand
might have given them away, he cannot bequeath such ornaments and
jewels by his will. 2 Bl. Com. 430; 2 Supp. to Ves. jr. 376; 5
Com. Dig. 230; 2 Com. Dig. 212; 11 Vin. Ab. 176; 4 Bouv. Inst.
n. 8996-7.
PARATITLA, civil law. An abbreviated explanation of some titles
or books of the Code or Digest.
PARATUM HABEO. A return made by the sheriff to a capias ad
respondendum, which signified that he had the defendant ready to
bring into court. This was a fiction where the defendant was at
large. Afterwards be was required by statute to take bail from
the defendant, and he returned cepi corpus and bail bond. But
still he might be ruled to bring in the body. 7 Penn. St. Rep.
535.
PARAVAIL. Tenant paravail is the lowest tenant of the fee, or
he who is the immediate tenant to one who holds of another. He is
called tenant paravail, because it is presumed he has the avails
or profits of the land. F. N. B. 135; 2 Inst, 296.
PARCEL, estates. Apart of the estate. 1 Com. Dig. Abatement, H
511 p. 133; 5 Com. Dig. Grant, E 10, p. 545. To parcel is to
divide an estate. Bac, Ab. Conditions, 0.
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PARCENARY. The state or condition of holding title to lands
jointly by parceners, before the common inheritance has been
divided. Litt. sec. 56. Vide 2 Bl. Com. 187; Coparcenary;
Estate In coparcenary.
PARCENERS, Engl. law. The daughters of a man or woman seised of
lands and tenements in fee simple or fee tail, on whom, after the
death of such ancestor, such lands and tenements descend, and
they enter. Litt. s. 243; Co. Litt. 164 2 Bouv. Inst. n. 1871-2.
Vide Coparceners.
PARCO FRACITO, Engl. law. The name of a writ against one who
violently breaks a pound, and takes from thence beasts which, for
some trespass done, or some other just cause, were lawfully
impounded.
PARDON, crim. law, pleading. A pardon is an act of grace,
proceeding from the power entrusted with the execution of the
laws, which exempts the individual on whom it is bestowed, from
the punishment the law inflicts for a crime he has committed. 7
Pet. S. C. Rep. 160.
2. Every pardon granted to the guilty is in derogation of the
law; if the pardon be equitable, the law is, bad; for where
legislation and the administration of the law are perfect,
pardons must be a violation of the law, But as human actions are
necessarily imperfect, the pardoning power must be vested
somewhere in order to prevent injustice, when it is ascertained
that an error has been committed.
3. The subject will be considered with regard, 1. To the kinds
of pardons. 2. By whom they are to be granted. 3. For what
offences. 4. How to be taken advantage of 5. Their effect.
4. - §1, Pardons are general or special. 1. The former are
express, when an act ofthe legislature is passed expressly
directing that offences of a certain class; shall be pardoned,
as in the case of an act of amnesty. See Amnesty. A general
pardon is implied by the repeal of a penal statute, because,
unless otherwise provided by law, an offence against such statute
while it was in force cannot be punished, and the offender goes
free. 2 Overt. 423. 2. Special pardons are those which are
granted by the pardoning power for particular cases.
5. Pardons are also divided into absolute and conditional. The
former are those which free the criminal without any condition
whatever; the. fatter are those to which a condition is annexed,
which must be performed before the pardon can have any effect.
Bac. Ab. Pardon, E; 2 Caines, R. 57; 1 Bailey, 283; 2 Bailey
516. But see 4 Call, R. 85.
6. - §2. The constitution of the United States gives to the,
president in general terms, "the power to grant reprieves and
pardons for offences against the United States." The same power
is given generally to the governors of the several states to
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grant pardons for crimes committed against their respective
states, but in some of them the consent of the legislature or one
of its branches is required.
7. - §3. Except in the case of impeachment, for which a pardon
cannot be granted, the pardoning power may grant a pardon of all
offences against the government, and for any sentence or
judgment. But such a pardon does not operate to discharge the
interest which third persons may have acquired in the judgment;
as, where a penalty was incurred in violation of the embargo
laws, and the custom house officers became entitled to one-half
of the penalty, the pardon did not discharge that. 4 Wash. C. C
R. 64. See 2 Bay, 565; 2 Whart. 440; 7 J. J. Marsh. 131.
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8. - §4. When the pardon is general, either by an act of
amnesty, or by the repeal of a penal law, it is not necessary to
plead it, because the court is bound, ex officio, to take notice
of it. And the criminal cannot even waive such pardon, because by
his admittance, no one can give the court power to punish him,
when it judicially appears there is no law to do it. But when the
pardon is special, to avail the criminal it must judicially
appear that it has been accepted, and for this reason it must be
specially pleaded. 7 Pet. R. 150, 162.
9. - §5. The effect of a pardon is to protect from punishment
the criminal for the offence pardoned, but for no other. 1
Porter, 475. It seems that the pardon of an assault and battery,
which afterwards becomes murder by the death of the person
beaten, would not operate as a pardon of the murder. 12 Pick.
496. In general, the effect of a full pardon is to restore the
convict to all his rights. But to this there are some exceptions:
1st. When the criminal has been guilty of perjury, a pardon will
not qualify him to be a witness at any time afterwards. 2d. When
one was convicted of an offence by which he became civilly dead,
a pardon did not affect or annul the second marriage of his wife,
nor the sale of his property by persons appointed to administer
on his estate, nor divest his heirs of the interest acquired in
his estate in consequence of his civil death. 10 Johns. R. 232,
483.
10. - §6. All contracts, made for the buying or procuring a
pardon for a convict, are void. And such contracts will be
declared null by a court of equity, on the ground that they are
opposed to public policy. 4 Bouv. Inst. n. 3857. Vide, generally,
Bac. Ab. h. t.; Com. Dig. h. t.; Nels. Ab. h. t.; Vin. Ab. h.
t.; 13 Petersd. Ab. h. t.; Dane's Ab. h. t.; 3 lust. 233 to
240; Hawk. b. 2, c. 37; 1 Chit. Cr. L. 762 to 778; 2 Russ. on
Cr. 595 Arch. Cr. Pl. 92; Stark. Cr. Pl. 368, 380.
PARENTAGE. Kindred. Vide 2 Bouv. Inst. n. 1955; Branch; Line.
PARENTS. The lawful father and mother of the party spoken of. 1
Murph. R. 336; 11 S. & R. 93.
2. The term parent differs from that of ancestor, the latter
embracing not only the father and mother, but every per ascending
line. It differs also from predecessor, which is applied to
corporators. Wood's Inst. 68; 7 Ves. 522; 1 Murph. 336; 6
Binn. 255. See Father; Mother.
3. By the civil law grandfathers and grandmothers, and other
ascendants, were, in certain cases, considered parents. Dict. de
Jurisp. Parente. Vide 1 Ashm. R. 55; 2 Kent, Com. 159; 5 East,
R. 223; Bouv. Inst. Index, h. t.
PARES. A man's equals; his peers. (q. v.) 3 Bl. Com. 349.
PARES CURIE, feudal law, Those vassals who were bound to attend
the lord's court were so called. Ersk. Inst. B. 2, tit. 3, s. 17.
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PARI DELICTO crim. law. In a similar offence or crime; equal in
guilt. A person who is in pari delicto with another, differs from
a particeps criminis in this, that the former always includes the
latter but the latter does not always include the former. 8 East,
381, 2.
PARI MATERIA. Of the same matter; on the same subject; as,
laws pari materia must be construed with reference to each other.
Bac. Ab. Stat. I. 3.
PARI PASSU. By the same gradation.
PARISH. A district of country of different extents. In the
ecclesiastical law it signified the territory committed to the
charge of a parson, vicar, or other minister. Ayl. Parerg. 404;
2 Bl. Com. 112. In Louisiana, the state is divided into parishes.
PARIUM JUDICIUM. The trial by jury , or by a man's peers, or
equals, is so called.
PARK, Eng. law. An enclosed chase (q.v.) extending only over a
man's own grounds. The term park signifies an enclosure. 2 Bl.
Com. 38.
PARLIAMENT. This word, derived from the French parlement, in
the English law, is used to designate the legislative branch of
the government of Great Britain, composed of the house of lords,
and the house of commons.
2. It is an error to regard the king of Great Britain as
forming a part of parliament. The connexion between the king and
the Iords spiritual, the lords temporal, and the commons, which,
when assembled in parliament, form the, three states of the
realm, is the same as that which subsists between the king and
those states - the people at large - out of parliament; Colton's
Records, 710; the king not being, in either case, a member,
branch, or coestate, but standing solely in the relation of
sovereign or head. Rot. Par. vol. iii,. 623 a.; 2 Mann. & Gr.
457 n.
PAROL. More properly parole. A French word, which means
literally, word or speech. It is used to distinguish contracts
which are made verbally or in writing not under seal, which are
called, parol. contracts, from those which are under seal which
bear the name of deeds or specialties (q. v.) 1 Chit. Contr. 1;
7 Term. R. 3 0 351, n.; 3 Johns. Cas. 60; 1 Chit. Pl. 88. It is
proper to remark that when a contract is made under seal, and
afterwards it is modified verbally, it becomes wholly a parol
contract. 2 Watts, 451; 9 Pick. 298; 13 Wend. 71.
2. Pleadings are frequently denominated the parol. In some
instances the term parol is used to denote the entire pleadings
in a cause as when in an action brought against an infant heir,
on an obligation of his ancestors, he prays that the parol may
demur, i. e., the pleadings may be stayed, till he shall attain
full age. 3 Bl. Com. 300; 4 East, 485 1 Hoffm. R. 178. See a
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form of a plea in abatement, praying that the parol may demur, in
1 Wentw. Pl. 43; and 2 Chit. Pl. 520. But a devisee cannot pray
the parol to demur. 4 East, 485.
3. Parol evidence is evidence verbally delivered by a witness.
As to the cases when such evidence will be received or rejected,
vide Stark, Ev. pt. 4, p. 995 to 1055; 1 Phil. Ev. 466, c. 10,
s. 1; Sugd. Vend. 97.
PAROL LEASES. An agreement made verbally, not in writing,
between the parties, by which one of them leases to the other a
certain estate.
2. By the English statute of frauds of 29 Car. III, c. 3, s. 1,
2, and 3, it is declared, that "all leases, estates, or terms of
years, or any uncertain interest in lands, created by livery
only, or by parol, And not put in writing, and signed by the
party, should have the force and effect of leases or estates at
will only, except leases not exceeding the term of three years,
whereupon the rent reserved during the term shall amount to two
third parts of the full improved value of the thing demised."
"And that no lease or estate, either of freehold or term of
years, should be assigned, granted, or surrendered, unless in
writing." The principles of this statute have been adopted with
some modifications, in nearly all the states of the Union. 4
Kent, Com. 95; 1 Hill. Ab. 130
PAROLE, international law. The agreement of persons who have
been taken by an enemy that they will not again take up arms
against those who captured them, either for a limited time, or
during the continuance of the war. Vattel, liv. 3, c. 8, §151.
PARRICIDE, civil law. One who murders his father; it is
applied, by extension, to one who murders his mother, his
brother, his sister, or his children. The crime committed by such
person is also called parricide. Merl. Rep. mot Parricide; Dig.
48, 9, 1, 1. 3, 1. 4.
2. This offence is defined almost in the same words in the
penal code of China. Penal Laws of China, B. 1, s. 2, §4.
3. The criminal was punished by being scourged, and afterwards
sewed in a sort of sack, with a dog, a cock, a viper, and an ape,
and then thrown into the sea, or into a river; or if there were
no water, he was thrown in this manner to wild beasts. Dig. 48,
9, 9; C. 9, 17, 1, 1. 4, 18, 6; Bro. Civ; . Law, 423; Wood's
Civ. Law, B. 3, c. 10, s. 9.
4. By the laws of France parricide is the crime of him who
murders his father or mother, whether they, be the legitimate,
natural or adopted parents of the individual, or the murder of
any other legitimate ascendant. Code Penal, art. 297. This crime
is there punished by the criminal's being taken to the place of
execution without any other garment than his shirt, barefooted,
and with his head covered with a black veil. He is then exposed
on the scaffold while an officer of the court reads his sentence
to the spectators; his right hand is then cut off, and he is
immediately put to death. Id. art. 13.
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5. The common law does not define this crime, and makes no
difference between its punishment, and the punishment of murder.
1 Hale's P. C. 380; Prin. Penal Law, c. 18, §8, p. 243; Dalloz,
Dict. mot Homicide.
PARSON, eccles. law. One who has full possession of all the
rights of a parochial church.
2. He is so called because by his person the church, which is
an invisible body, is represented: in England he is himself a
body corporate it order to protect and defend the church (which
he personates) by a the minority, if required to bring Story on
Partn. §489. 1 Bouv. Inst. n. 1217. 398; 5 Com. Dig. 346.
PARTICEPS FRAUDIS. fraud. Both parties be in pari delicto is
not allowed to allege his own turpitude in such cases, when
defendant at law, or prevented from alleging it, when plaintiff
in equity, whenever the refusal to execute the contract at law,
or the refusal to relieve against it in equity, would give effect
to the original purpose, and encourage the parties engaged, in
such transactions. 4 Rand. R. 372; 1 Black. R. 363; 2 Freem.
101.
PARTICULAR AVERAGE. This term, partipular average, has been
condemned as not being exact. See Average. It denotes, in
general, every kind of expense or damage, short of total loss
which regards a particular concern, and which is to be borne by
the proprietor of that concern alone. Between the insurer and
insured, the term includes losses of this description, as far as
the underwriter is liable. Particular average must not be
understood as a total loss of a part; for these two kinds of
losses are perfectly distinct from each other. A total loss of a
part may be recovered, where a particular average would not be
recoverable. See Stev. on Av. 77.
PARTICULAR AVFRMENT, pleading. Vide Avermzent.
PARTICULAR CUSTOM. A particular custom is one which only
affects the inhabitants of some particular district. To be good,
a particular custom must possess these requisites: 1. It must
have been used so long that the memory of man runneth not to the
contrary. 2. It must have been continued. 3. It must have been
peaceable. 4. It must be reasonable. 5. It must be certain. 6. It
must be consistent with itself. 7. lt must be consistent with
other customs. 1 Bl. Com. 74, 79.
PARTICULAR ESTATE. An estate which is carved out of a larger
and which precedes a remainder; as, an estate for years to A,
remainder to B for life; or, an estate, for life to A, remainder
to' B in tail: this precedent estate is called the particular
estate. 2 Bl. Com. 165; 4 Kent, Com. 226; 16 Vin. Abr. 216; 4
Com. Dig. 32; 5 Com. Dig. 346.
PARTTICULAR, LIEN, contracts. A right which a person has to
retain property in respect of money or labor expended on such
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particular property. For example, when a tailor has made garments
out of cloth delivered to him for the purpose, he is not bound to
part with the clothes until his employer, has paid him for his
services; nor a ship carpenter with a ship which he has
repaired; nor can an engraver be compelled to deliver the seal
which he has engraved for another, until his compensation has
been paid. 2 Roll. Ab. 92; 3 M. & S. 167; 14 Pick. 332; 3
Bouv. Inst. n. 2514. Vide Lien.
PARTICULARS, practice. The items of which the accounts of one
of the parties is composed, and which are frequently furnished to
the opposite party in a bill of particulars. (q. v.)
PARTIES, contracts. Those persons who engage themselves to do,
or not to do the matters and things contained in an agreement.
2. All persons generally can be parties to contracts, unless
they labor under some disability.
3. Consent being essential to all valid contracts, it follows
that persons who want, first, understanding; or secondly,
freedom to exercise their will, cannot be parties to contracts.
Thirdly, persons who in consequence of their situation are
incapable to enter into some particular contract. These will be
separately considered.
4. - §1. Those persons who want understanding, are idiots and
lunatics; drunkards and infants,
5. - 1. The contracts of idiots and lunatics, are riot binding;
as they are unable from mental infirmity, to form any accurate
judgment of their actions; and consequently, cannot give a
serious and sufficient consideration to any engagement. And
although it was formerly a rule that the party could not stultify
himself; 39 H. VI. 42; Newl. on Contr. 19 1 Fonb. Eq. 46, 7;
yet this rule has been so relaxed, that the defendant may now set
up this defence. 3 Camp. 128; 2 Atk. 412; 1 Fonb. Eq. n. d.;
and see Highm. on Lun. 111, 112; Long on Sales, 14; 3 Day's
Rep. 90 Chit. on Contr. 29, 257, 8; 2 Str. 1104.
6. - 2. A person in a state of complete intoxication has no
agreeing mind; Bull. N. P. 172; 3 Campb. 33; Sugd. Vend. 154
Stark. Rep. 126; and his contracts are therefore void,
particularly if he has been made intoxicated by the other party.
1 Hen. & Munf. 69; 1 South. Rep. 361; 2 Hayw. 394; see Louis.
Code, art. 1781; 1 Clarke's R. 408.
7. - 3. In general the contract of an infant, however fair and
conducive to his interest it may be, is not binding on him,
unless the supply of necessaries to him be the object of the
agreement; Newl. Contr. 2; 1 Eq. Cas. Ab. 286; l Atk. 489; 3
Atk. 613; or unless he confirm the agreement after he shall be
of full age. Bac. Abr. Infancy; I 3. But he may take advantage
of contracts made with him, although the consideration were
merely the infant's promise, as in an action on mutual promises
to marry. Bull. N. P. 155; 2 Str. 907; 1 Marsh. (Ken.) Rep. 76;
2 M. & S. 205. See Stark. Ev. pt. iv. page 724; 1 Nott & McCord,
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197; 6 Cranch, 226; Com. Dig. Infant; Bac. Abr. Infancy and
Age; 9 Vin. Ab. 393, 4; Fonbl. Eq. b. 1 c. 2; §4, note b; 3
Burr. 1794; 1 Mod. 25; Stra. 937; Louis. Code, article 1778.
8. - §2. Persons who have understanding, who, in law, have not
freedom to exercise their will, are married women; and persons
under duress.
9. - 1. A married woman has, in general, no power or capacity
to contract during the coverture. Com. Dig. Baron & Feme, W;
Pleader, 2 A 1. She has in legal contemplation no separate
existence, her hushand and herself being in law but one person.
Litt. section 28; see Chitty on Cont. 39, 40. But a contract
made with a married woman, and for her benefit, where she is the
meritorious cause of action, as in the instance of an express
promise to the wife, in consideration of her personal labor, as
that she would cure a wound; Cro. Jac. 77; 2 Sid. 128; 2 Wils.
424; or of a bond or promissory note, payable on the face
thereof to her, or to herself and hushand, may be enforced by the
hushand and wife, though made during the coverture. 2 M. & S.
396, n. b.; 2 Bl. Rep. 1236; 1 H. Black. 108. A married woman
has no original power or Authority by virtue of the marital tie,
to bind her bushand by any of her contracts. The liability of a
bushand on his wife's engagements rests on the idea that they
were formed by his authority; and if his assent do not appear by
express evidence or by proof of circumstances from which it may
reasonably, be inferred, he is not liable. 1 Mod. 125; 3 B. & C.
631; see Chitty on Cont. 39 to 50.
10. - 2. Contracts may be avoided on account of duress. See
that word, and also Poth. Obl. P. 1, c. 1, s. 1, art. 3, §2.
11. - §3. Trustees, executors, administrators, guardians, and
all other, persons who make a contract for and on behalf of
others, cannot become, parties to such contract on their own.
account; nor are they allowed in any case to purchase the trust
estate for themselves. 1 Vern. 465; 2 Atk. 59; 10 Ves. 3; 9
Ves. 234; 12 Ves. 372, 3 Mer. Rep. 200; 6 Ves. 627; 8 Bro. P.
C. 42 10 Ves. 381; 5 Ves. 707; 13 Ves. 156; 1 Pet. C. C. R.
373; 3 Binn. 54; 2 Whart. 53; 7 Watts, 387; 13 S. & R, 210;
5 Watts, 304; 2 Bro. C. C. 400; White's L. C. in Eq. *104-117;
9 Paige, 238, 241, 650, 663; 1 Sandf. R. 251, 256; 3 Sandf. R.
61; 2 John. Ch. R. 252; 4 How. S. C. 503; 2 Whart. 53, 63; l5
Pick. 24, 31. As to the transactions between attorneys and others
in relation to client's property, see 2 Ves. jr. 201; 1 Madd.
Ch. 114; 15 Ves. 42; 1 Ves. 379; 2 Ves. 259. The contracts of
alien enemies may in, general be avoided, except when made under
the license of the government, either express or implied. 1 Kent,
Com. 104. See 15 John. 6; Dougl. 641. As to the persons who make
contracts in equity, see Newl. Cont. c. 1, pp. l to 33.
PARTIES TO ACTIONS. Those persons who institute actions for the
recovery of their rights, and those persons against whom they are
instituted, are the parties to the actions; the former are
called plaintiffs, and the latter, defendants. The term parties
is understood to include all persons who are directly interested
in the subject-matter in issue, who have right to make defence,
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control the proceeding, or appeal from the judgment. Persons not
having these rights are regarded as strangers to the cause. 20
How. St. Tr. 538, n.; Greenl. Ev. §523
2. It is of the utmost importance in bringing actions to have
proper parties, for however just and meritorious the claim may
be, if a mistake has been made in making wrong persons, either
plaintiffs or defendants, or including too many or too few
persons as parties, the plaintiff may in general be defeated.
3. Actions are naturally divided into those which arise upon
contracts, and those which do not, but accrue to the plaintiff in
consequence of some wrong or injury committed by the defendant.
This article will therefore be divided into two parts, under
which will be briefly considered, first, the parties to actions
arising upon contracts; and, secondly, the parties to actions
arising upon injuries or wrongs, unconnected with contracts,
committed b the defendant.
4. - Part I. Of parties to actions arising on contracts. These
are the plaintiffs and the defendants.
5. - Sect. 1. Of the plaintiffs. These will be considered as
follows:
§1. Between the original contracting parties. An action. on a
contract, whether express or implied, or whether it be by parol,
or under seal, or of record, must be brought in the name of the
party in whom the legal interest is vested. 1 East, R. 497; and
see Yelv. 25, n. l; 13 Mass. Rep. 105; 1 Pet. C. C. R. 109; 1
Lev. 235; 3 Bos. & Pull. 147; 1 Ii. Bl. 84; 5 Serg. & Rawle,
27; Hamm. on Par. 32; 2 Bailey's R. 55; 16 S. & R. 237,; 10
Mass. 287; 15 Mass. 286 10 Mass. 230; 2 Root, R. 119.
6.- §2. Of the number of plaintiffs who must join. When a
contract is made with several, if their legal interests were
joint, they must all, if living, join in the action for the
breach of the contract. 1 Saund. 153, note 1; 8 Serg. & Rawle,
308; 10 Serg. & Rawle, 257; 10 East, 418; 8 T. R. 140; Arch.
Civ. Pl. 58; Yelv. 177, note 1. But dormant partners need not
join their copartners. 8 S. & R. 85; 7 Verm. 123; 2 Verm. 65;
6 Pick. 352; 4 Wend. 628; 8 Wend. 666; 3 Cowen, 84; 2 Harr. &
Gill, 159. When a contract is made and a bond is given to a firm
by a particular name, as A B and Son, the suit must be brought by
the actual partners, the two sons of A B, t-he latter having been
dead several years at the time of making the contract. 2 Campb.
548. When a person who has no interest in the contract is joined
with those who have, it is fatal. 19 John. 213 2 Penn. 817; 2
Greenl. 117.
7. - §3. When the interest of the contract has been assigned.
Some contracts are assignable at law; when these are assigned,
the assignee may maintain an action in his own name. Of this kind
are promissory notes, bills of exchange, bail-bonds,
replevin-bonds; Hamm. on Part. 108; and covenants running with
the land pass with the tenure, though not made with assigns. 5
Co. 24; Cro. Eliz., 552; 3 Mod. 338; 1 Sid. 157; Hamm, Part.
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116; Bac. Abr.; Covenant, E 5. When a contract not is signable
at law has been assigned, and a recoverly on such contract is
sought, the action must be in the name of the assignor for the
use of the assignee.
8. - §4. When one or more of several obligees, &c., is dead.
When one or more of several obligees, covenantees, partners or
others, haviug a joint interest in the contract; not running
with the land, dies, the action must be brought in the name of
the survivor, and that fact averred in the declaration. 1 Dall.
65, 248; 1 East, R. 497; 2 John. Cas. 374; 4 Dalt. 354; Arch.
Civ. Pl. 54, 5; Addis. on Contr. 285; 1 Chan. Rep. 31; Yelv.
177.
9. - §5. In the case o executors and administrators. When a
personal contract, or a covenant not running with the land, has
been made with one person only, and he is dead, the action for
the breach of it must be brought in the name of the executor or
administrator in whom the legal interest in the contract is
vested; 2 H. Bl. 310; 3 T. R. 393; and all the executors or
administrators must join. 2 Saund. 213; Went.95; 1 Lev.161; 2
Nott & McCord, 70; Hamm. on Part. 272.
10. - §6. In the case of bankruptcy or insolvency. In the case
of the bankruptcy or insolvency of a person who is beneficially
interested in the performance; of a contract made before the act
of bankruptcy or before, the assignment under the insolvent laws,
the action should be brought in the name of his assignees. 1
Chit. Pl. 14; 2 Dall. 276; 3 Yeates, 520; 7 S. & R. 182; 5 S.
& R. 394; 9 S, & R. 434. See 3 Salk. 61; 3 T. R. 779; Id. 433;
Hamm. on Part. 167; Com. Dig. Abatement, E 17.
11. - §7. In case of marriage. This part of the subject will be
considered with reference to tbose cases. 1st. When the hushand
and wife, must join. 2d. When the hushand must sue alone. 3d.
When the wife must sue alone. 4th. When they may join or not at
their election. 5th. Who is to sue in the case of the death of
the hushand or wife. 6th. When a woman marries, lis pendens.
12. - 1. To recover the chose in action of the wife, the
hushand must, in general, join, when the cause of action would
survive. 3 T. R. 348; 1 M. & S. 180; Com. Dig. Baron & Feme, V;
Bac. Ab. Baron & Feme, K; 1 Yeates' R. 551; 1 P. A. Browne's R.
263; 1 Chit. Pl. 17.
13. - 2. In general the wife cannot join in any action upon a
contract. made during coverture, as for work and labor, money
lent, or goods sold by her during that time, 2 Bl. Rep. 1239;
and see 1 Salk. 114; 2 Wils. 424.; 9 East, 412; 1 Str. 612; 1
M. & S. 180; 4 T. R. 516; 3 Lev. 103; Carth. 462; Ld. Raym.
368; Cro, Eliz. 61; Com. Dig. Baron & Feme, W.
14. - 3. When the hushand is civiliter mortuus, see 4 T. Rep.
361; 2 Bos. & Pull. 165; 4 Esp. R. 27; 1 Selw. N. P. 286;
Cro. Eliz. 1519; 9 East, R. 472; Bac. Ab. Baron & Feme, M.;
or, as has been decided in England, when he is an alien and has
left the country, or has never been in it, the wife may, on her
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own separate contracts, sue alone. 2 Esp. R. 544; 1 Bos. & Pull.
357; 2 Bos. & Pull. 226; 1 N. R. 80; 11 East, R. 301; 3 Camp.
R. 123; 5 T. R. 679. But the rights of such hushand being only
suspended, the disability may be removed, in one case, by a
pardon, and, in the other, by the hushand's return, and then: he
must be joined. Broom on Part. s. 114.
15. - 4. When a party being indebted to a wife dum sola, after
the marriage gives a bond to the hushand and wife in
consideration of such debt, they may join, or the hushand may sue
alone on such contract. 1 M. & B. 180; 4 IT. R. 616 1 Chit. Pl.
20.
16. - 5. Upon the death of the wife, if the hushand survive, he
may sue for, anything he became entitled to during the coverture;
as for rent accrued to the wife during the coverture. 1 Rolle's
Ab. 352, pl. 5; Com. Dig. Baron & Feme, Z; Co. Litt. 351, a, n.
1. But the hushand cannot sue in his own right for the choses in
action of the wife, belonging to her before coverture. Hamm. on
Part. 210 to 215.
17. When the wife survives the hushand, she may sue on all
contracts entered into with her before coverture, which remain
unsatisfied; and she may recoverall arrears of rent of her real
estate, which became due during the coverture, or their joint
demise. 2 Taunt. 181; 1 Roll's Ab. 350 d.
18. - 6. When a suit is instituted by a single woman, or by her
and others, and she afterwards marries, lis pendens, the suit
abates. 1 Chit. Pl. 437; 14 Mass. R. 295; Brayt. R. 21.
19. - §8. When the plaintiff, is a foreign government, it must
have been recognized by the government of this country to entitle
it to bring an action. 3 Wheat. R. 324; Story, Eq. Pl. §55. See
4 Cranch, 272; 9 Ves. 347; 10 Ves. 354; 11 Ves. 283; Harr.
Dig. 2276.
20. - Sect. 2. Of the defendants. These will be considered in
the following order: §1. Between the original parties. The
action upon an express contract, must in general be brought
against the party who made it. 8 East, R. 12. On implied
contracts against the person subject to the legal liability.
Ramm. Part. 48; 2 Hen. Bl. 563. Vide 6 Mass. R. 253; 8 Mass.
Rep. 198; 11 Mass. R. 335; 6 Binn. R. 234; 1 Chit. Pl. 24.
21. - §2. Of the number of defendants. For the breach of a
joint contract made by several parties, they should all be made
defendants; 1 Saund: 153, note 1; Id. 291 b, n. 4; even
though one be a bankrupt or insolvent. 2 M. & S. 23. Even an
infant must be joined, unless the contract as to him be entirely
void. 3 Taunt. 307; 5 John R. 160. Vide 5 John. R. 280; 11
John. R. 101; 5 Mass. R. 270; 1 Pick. 500. When a joint
contractor is dead, the suit should be brought against the
survivor, 1 Saund. 291, note 2. The misjoinder of defendants in
an action ex contractu, by joining one who is not a contractor,
is fatal. 3 Conn. 194; Pet. C. C. 16; 2 J. J. Marsh. 88; 1
Breese, 128; 2 Rand. 446; 10 Pick. 281.
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22. - 3. In case of a change of credit, and of covenants
running with the land, &c. In general in the case of a mere
personal contract, the action for the breach of it, cannot be
brought against the person to whom the contracting party has
assigned his interest, and the original party can alone be sued;
for example, if two partners dissolve their partnership, and one
of them covenant with the other that he will pay all the debts, a
creditor may nevertheless sue both. Upon a covenant running with
land, which must concern real property, or the estate therein; 3
Wils. 29; 2 H. Bl. 133; 10 East, R. 130; the assignee of the
lessee is liable to an' action for a breach of the covenant after
the assignment of the estate to him, and while the estate remaim
in him, although he have - not take possession. Bac. Ab.
Covenant, E 34; 3 Is. 25; 2 Saund. 304, n. 12; Woodf. L. & T.
113; 7 T. R. 312; Bull. N. P. 159; 3 Salk. 4; 1 Dall. R.
210,; 1 Fonbl. Eq. 359, note y; Hamm. N. P. 136.
23. - §4. When one of several obligers, &c. is dead. When the
parties were bound by a joint contract, and one of them dies, his
executor or administrator is at law discharged from liability,
and the survivor alone can be sued. Bac. Ab. Obligation, D 4;
Vin. Ab. Obligation, P 20; Carth. 105; 2 Burr. 1196. And when
the deceased was a mere surety, his executors are not liable even
in equity. Vide 1 Binn. R. 123.
24. - §5. In the case of executors an administrators. When the
contracting party is dead, his executor or administrator, or, in
case of a joint contract, the executor or administrator of the
survivor, is the party to be made defen-dant. Ham. on Part. 156.
On a joint contract, the executors of the deceased contractor,
the other surviving, are discharged at law, and no action can be
supported against them; 6 Serg. & R. 262; 2 Whart. R. 344; 2
Browne, Rep. 31; and, if the deceased joint contractor was a
mere surety, his representatives are not liable either at, law or
in equity. 2 Serg. & R. 262; 2 Whart. 344; P. A. Browne's R.
31. All the executors must be sued jointly; when administration
is taken on the debtor's estate, all his administrators must be
joined, and if one be a married woman, her hushand must also be a
party. Cro. Jac. 519.
25. - §6. In the case of bankruptcy or insolvency. A discharged
bankrupt cannot be sued. A discharge under the insolvent laws
does not protect the property of the insolvent, and he may in
general be sued on his contracts, though he is not liable to be
arrested for a debt which was due and not contingent at the date.
of his discharge. Dougl. 93; 8 East, R. 311; 1 Saund. 241, n.
5; Ingrah. on Insol. 377.
26. - §7. In case of marriage. This head will be divided by
considering, 1. When the bushand and wife must be joined. 2. When
the hushand must be sued, alone. 3. When the wife must be sued
alone. 4. When the hushand and wife may be joined or not at the
election of the plaintiff. 5. Who is to be sued in case of the
death of the hushand or wife. 6. Of actions commenced against the
wife dum sola, which are pending at her marriage.
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27. - 1. When a feme sole who has entered into a contract
marries, the hushand and wife must in general be jointly sued. 7
T. R. 348; All. 72; 1 Keb. 281; 2 T. R. 480; 3 Mod. 186; 1
Taunt. 217; 7 Taunt. 432; 1 Moore, 126; aid, s6e 8 Johns. R.
2d ed. 115.; 15 Johns. R. 403, 483; 17 Johns. Rep, 16't;- 7
Mass. R. 291 - Com. Dig. Pleader, 2 A 2-; 1 Bingh. R. 60. But if
the hushand be away, or live separate from his wife, she may, on
a contract of which she is the meritorious cause, bring an action
in the Paine of her hushand, on indemnitying the latter for
costs. 4 B. & A. 419; 2 C. & M. 388 Addis. on Contr. 342. And,
on such contract, she may sue as a feme sole when her hushand is
civiliter inortu'us. Addis. on Contr. 342 1 Salk. 116; 1 Lord
Raym. 147; 2 M. & W. 65; Moore, 851.
28. - 2. When the wife cannot be considered either in person,
or property as creating the cause of action, as in the case of a
mere personal contract made during the coverture, the hushand
must be sued alone. Com. Dig. Pleader, 2 A 2; 8 T. R. 545; 2 B.
& P. 105; Palm. 312; 1 Taunt. 217; 4 Price, 48; 16 Johns. R.
281.
29. - 3. The wife can in general be sued alone, in the same
cases where she can sue alone, the cases being reversed.
30. - 4. When the hushand, in consequence of some new
consideration, undertakes to pay a debt of the wife dum sola, he
may be sued alone, or the hushand and wife. may be made joint
defendants. All. 73; 7 T. R. 349; vide other cases in Com. Dig.
Baron & Feme, Y; 1 Rolle's Ab. 348, pl. 45, 50; Bac. Ab. Baron
& Feme, L.
31. - 5. Upon the death of the wife, her executor, when she has
appointed one under a power, or her administrator, is alone
responsible for a debt or duty she contracted dum sola. The
hushand, as such, is not liable. Com. Dig. Baron & Feme, 2 C; 3
Mod. 186; Rep. Temp. Talb. 173; 3 P. Wms. 410. When the wife
survives, she may be sued for her contracts made before
coverture. 7 T. R. 350; 1 Camp. R. 189.
32. - 6. When a single woman, being sued, marries Iis pendens,
the plaintiff may proceed to judgment, as if she were a feme
sole. 2 Rolle's R. 53; 2 Str, 811.
33. Part 2. Of parties to actions in form ex delicto. These are
plaintiffs and defendants.
34. - Sect. 1. Of plaintiffs. These will be separately,
considered as follows:
35. - §1. With reference to the interest. Of the plaintiff. The
action for a tort must, in general, be brought in the name of the
party whose legal right has been affected, 8 T. R. 330; vide 7
T. R. 47; 1 East, R. 244; 2 Saund. 47 d; Hamm. on Part. 35, 6;
6 Johns. R. 195;.10 Mass. R. 125 10 Serg. & Rawle, 357.
36. - §2. With reference to the number of plaintiffs. It is a
general rule that when an injury is done to the property of two
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or more joint owners, they must join in the action; and even
when the property is several, yet when the wrong has caused a
joint damage, the parties must join in the action. 1 Saund. 291,
g. When suits are brought by tenants in common, against strangers
for the recovery of the land, inasmuch as they have several
titles, they cannot agreeably to the rules of the common law,
join, but must bring separate actions; and this seems to be the
rule in Missouri. 1 Misso. R. 746. This rule has been changed in
some of the states. In Connecticut, when the plaintiff claims on
the title of all the tenants, he recovers for their benefit, and
his possession will be theirs. 1 Swift's Dig. 103. In
Massachusetts, Mass. Rev. St. 611, and Rhode Island, R. I. Laws,
208, all the tenants or any two may join or any one may sue
alone. In Tennessee they usually join. 2 Yerg. R. 228.
37. When personal reputation is the object affected, two or
more cannot join as plaintiffs in the action, although the mode
of expression in which the slander was couched comprehended them
all; as when a man addressing himself to three, said, you have
murdered Peter. Dyer, 191, pl. 112; Cro. Car. 510; Goulds. pl.
6, p. 78. The reason of this is obvious, no one has any interest
in the character of the others, the damages are, therefore,
several to each.
38. - §3. In general, rights or causes of action arising ex
delicto are not assignable.
39. - §4. When one of several parties who had an interest is
dead. In such case the action must be instituted by the survivor.
1 Show. 188; S. C. Carth. 170.
40. - §5. When the party injured is dead. The executors or
administrators cannot in general recover damages for a tort, when
the, action must be ex delicto, and the plea to it is not guilty.
Vide the article Actio personalis moritur cum persona, where the
subject is more fully examined.
41. - §6. In case of insolvency. The statutes generally
authorize the trustee or assignee of an insolvent to institute a
suit in his own name for the recovery of the rights and property
of the insolvent. 6 Binn. 189; 8 Serg. & Rawle, 124. But for
torts to the person of the insolvent, as for slander, the trustee
or assignee cannot sue. W. Jones' Rep. 215.
42.- §7. When the tort has been committed, against a woman dum
sola who afterwards married. A distinction is made between those
injuries committed before and those which take place during
coverture. For injuries to the person, personal or real property
of the wife, committed before coverture, when the cause of action
would survive to the wife, she must join in the action. 3 T. R.
627; Rolle's Ab. 347; Com. Dig. Baron & Feme, V. For an injury
to the person of the wife during coverture, by battery, or to her
character, by slander, or for any other such injury, the wife
must be joined with her hushand in the suit; when the injury is
such that the hushand receives a separate damage or loss, as if
in consequence of the battery, he has been deprived of her
society or been put to expense, he may bring a separate action,
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in his own name; and for slander of the wife, when words are not
actionable of themselves, and the hushand has received some
special damages, the hushand must sue alone. 1 Lev. 140; 1 Salk.
119; 3 Mod. 120.
43. - Sect. 2. Of the defendants. §1. Between the orginal
parties. All natural persons are liable to be sued for their
tortious acts, unconnected with or in disaffirmance of a
contract; an infant is, therefore, equally liable with an adult
for slander, assaults aud batteries, and the like; but the
plaintiff cannot bring an action ex delicto which arose out of a
contract, and by that means charge an infant for a breach of a
contract. The form is of no consequence; the only question is
whether the action arose out of contract or otherwise. A
plaintiff who hired a horse to an infant, and the infant by hard,
improper and injudicious driving, killed the horse,, cannot
maintain an action ex delicto to recover damages for a breach of
this contract. 8 Rawle's R. 351; 6 Watts' R. 9; 8 T. R. 385;
Hamm. N. P. 267. But see contra, 6 Cranch,226; 15 Mass. 359; 4
McCord, 387. Vide Infant.
44. - §2. As to the number of defendants. There are torts
which, when committed by several, may authorize a joint action
against all the parties; but when in legal contemplation several
cannot concur in the act complained of, separate actions must be
brought against each; the cases of several persons joining in
the publication of a libel, a malicious prosecution, or an
assault and battery, are cases of the first kind verbal slander
is of the second. 6 John. R: 32. In general, When the parties
have committed a tort which might be committed by several, they
may be jointly sued, or the plaintiff may sue one or more of them
and not sue the others, at his election. Bac Ab. Action Qui Tam,
D; Roll. Ab. 707; 3 East, R. 62.
45. - §3. When the interest has been assigned. A liability for
a tort cannot well be assignee; but an estate may be assigned on
which was erected a nuisance, and the assignee will be liable for
continuing it, after having possession of the estate. Com. Dig.
Case, Nuisauce, B; Bac. Ab. Actions, B; 2 Salk. 460; 1 B. & P.
409.
46.- 4. When the wrongdoer is dead. In this case the remedy for
wrongs ex delicto, and unconnected with contract, cannot in
general be maintained. Vide Actio personalis moritur cum persona.
47. - §5. In case of insolvency. Insolvency does not discharge
the right of action of the plaintiff in any case; it merely
liberates the defendant from arrest when he has received the
benefit of, and been discharged under, the insolvent laws; an
insolvent may therefore be sued for his torts committed before
his discharge.
48. - §6. In case of marriage. Marriage does not affect or
change the liabilities of the hushand and he is alone to be sued
for his torts committed either before or during the coverture.
But it is otherwise with the wife; after her marriage she has no
personal property to pay the damages which may be recovered, and
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she cannot even appoint an attorney to defend her. For her torts
committed by her before the marriage, the action must be against
the hushand and wife jointly. Bac. Ab. Baron and Feme, L; 5
Binn. 43. They must also be sued jointly for the torts of the
wife during the coverture, as for slander, assault and battery,
&c. Bac. Ab. Baron and Feme, L. See, generally, as, to parties to
actions,, 3 United States Dig. Pleading, I, and Promissory Note,
XVI.; Bouv. Inst. Index, h. t.
PARTIES TO A SUIT IN EQUITY. The person who seeks a remedy in
chancery by suit, commonly called a plaintiff, and the person
against whom the remedy is sought, usually denominated the
defendant, are the parties to a suit in equity.
2. It is of the utmost importance, that there should be proper
parties; and therefore no rules connected with the science of
equity pleading, are so necessary to be attentively considered
and observed, as those which relate to the persons who are to be
made parties. to a suit, for when a mistake in this respect is
discovered at the hearing of the cause, it may sometimes be
attended with defeat, and will, at least, be followed by delay
and expense. 3 John. Ch. R. 555; 1 Hopk. Ch. R. 566; 10 Wheat.
R. 152.
3. A brief sketch will be here given by considering, 1. Who may
be plain-tiffs. 2. who may be made defendants. 3. The number of
the parties.
4. - §1. Of the plaintiff. Under this head will be considered
who may sue in equity: and,
5. - 1. The government, or as the style is in England, the
crown) may sue in a court of equity, not only in suits strictly
on behalf of the government, for its own peculiar rights and
interest, but also on behalf of the rights and interest of those,
who partake of its prerogatives, or claim its peculiar
protection. Mitf. Eq. Plead. by Jeremy, 4, 21-24; Coop. Eq. 21,
101. Such suits are usually brought by the attorney general.
6.- 2. As a general rule all persons, whether natural or
artificial, as corporations, may sue in equity; the exceptions
are persons who are not sui juris, as a person not of full age, a
feme covert, an idiot, or lunatic.
7. The incapacities to sue are either absolute, or partial.
8. The absolute, disable the party to sue during their
continuance; the partial, disable the party to sue by himself
alone, without the aid of another. In the United States, the
principal ab solute incapacity, is alienage. The alien, to be
disabled to sue in equity, must be an alien enemy, for an alien
friend may sue in chancery. Mitf. Equity, PI, 129; Coop. Equity
Pl. 27. But still the subject matter of the suit may. disable an
alien to sue. Coop. Eq. Pl. 25; Co. Lit. 129 b. An alien
sovereign or an alien corporation may maintain a suit in equity
in this country. 2 Bligh's Rep. 1, N. S.; 1 Dow. Rep.. 179, N.
S.; 1 Sim. R. 94; 2 Gall. R. 105; 8 Wheat. Rep. 464; 4 John.
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Ch. Rep. 370. In case if a foreign sovereign, he must have been
recognized by the government of this country before he can sue.
Story's Eq. pl. §55; 3 Wheat. Rep. 324; Cop. Eq. Pl. 119
9. Partial incapacity to sue exists in the case of infants, of
married women, of idiots and lunatics, or other persons who are
incapable, or are by law specially disabled to sue in their own
names; as for example, in Pennsylvania, and some other states,
habitual drunkards, who are under guardianship. 10.-1. An infant
cannot, by himself, exhibit a bill, not only on account of his
want of discretion, but because of his inability to bind himself
for costs. Mitf. Eq. Pl. 25. And when an infant sues, he must sue
by his next friend. Coop, Eq. 27; 1 Sm. Chan. Pl. 54. But as the
next friend may sometimes bring a bill. from improper motives,
the court will, upon a proper application, direct the master to
make inquiry on this subject, and if there be reason to believe
it be not brought for the benefit of the infant, the proceedings
will be stayed. 3 P. Wms. 140; Mitf. Eq. Pl. 27; Coop. Eq. Pl.
28.
11. - 2. A feme covert must, generally, join with her hushand;
but when he has abjured the realm, been transported for felony,
or when he is civilly dead, she may sue as a feme sole. And when
she has a separate claim, she may even sue her hushand, with the
assistance of a next friend of her own selection. Story's Eq. Pl.
§61; Story's Eq. Jur. §1368; Fonbl. Eq. b. 1, c. 2, §6, note p.
And the hushand may himself sue the wife.
12. - 3. Idiots and lunatics are generally under the
guardianship of persons who are authorized to bring a suit in the
idiot's name, by their guardian or committee.
13. - §2. Of the defendant. 1. In general, those persons who
may sue in equity, may be sued. Persons sui juris may defend
themselves, but those under an absolute or partial inability, can
make defence only in a particular manner. A bill may be exhibited
against all bodies politic or corporate, against all persons not
laboring under any diability, and all persons subject to such
incapacity, as infants, married women, and lunatics, or habitual
drankards.
14. - 2. The government or the state, like the king in England,
cannot be sued. Story, Eq. Pl. §69.
15. - 3. Bodies politic or corporate, like persons sui juris,
defend a suit by themselves.
16. - 4. Infants institute a suit, as has been seen, by next
friend, but they must defend a suit by guardian appointed by the
court, who is usually the nearest relation, not concerned in
interest, in the matter in question. Mitf. Eq. Pl. 103; Coop.
Eq. Pl. 20, 109; 9 Ves. 357; 10 Ves. 159; 11 Ves. 563; 1
Madd. R. 290; Vide Guardian, n. 6.
17. - 5. Idiots and lunatics defend by their committees, who,
in ordinary circumstances, are appointed guardians ad litem, for
that purpose, as a matter of course. Mitf. Eq. Pl. 103; Coop.
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Eq. Pl. 30, 32; Story's Eq. Pl. SS70; Shelf on Lun. 425.; and
vide 2 John. Ch. R. 242, where, Chancellor Kent held, that the
idiot need not be made a party as defendant to a bill for the
payment of his debts, but his committee only. When the idiot or
lunatic has no committee, or the latter has an interest adverse
to that of the lunatic or idiot, a guardian ad litem will be
appointed Mitf. Eq. Pl. 103;; Story's Eq. Pl. §70.
18. - 6. In general, a married woman, when she is sued, must be
joined with her hushand, and their answer must also be joint. But
there axe exceptions to this rule in both its requirements.
19. - 1. A married woman may be made a defendant, and answer as
a feme sole, in some instances, as when her hushand is plaintiff
in the suit, and sues her as defendant, and from the like
necessity, when the hushand is an exile or has abjured the realm,
or has been transported under a criminal sentence, or is an alien
enemy. She may be sued and answer as a feme sole. Mitf. Eq. Pl.
104, 105; Coop. Eq. Pl. 30.
20. - 2. When her hushand is joined, or ought to be joined, she
cannot make a separate defence, without a special order of court.
The following are instances where such orders will made. When a
married woman claims as defendant in opposition to her hushand,
or lives separate from him, or disapproves of the defence he
wishes her to make, she may obtain an order of court for liberty
to answer, and defend the suit separately. And when the hushand
is abroad, the plaintiff may obtain, an order that she shall
answer separately; and, if a woman obstinately refuses to join a
defence with her hushand, the latter may obtain an order to
compel her to make a separate answer. Mitf. Eq: Pl.: 104;
Coop. Eq. Pl. 30; Story's Eq 71.
21. - 3. As to the number of parties. It is a general rule that
every person who is at all interested in the subject-matter of
the suit, must be made a party. It is, the constant aim of a
court of equity, to do complete justice by deciding upon and
settling the rights of all persons interested in the subject of
the suit, to make the performance of the order of the court
perfectly safe to those who are compelled to obey it, and, to
prevent future litigation. For this purpose, all persons
materially interested in the subject ought to be parties to the
suit, plaintiffs or defendants, however numerous they may be, so
that a complete decree may be made binding on those parties.
Mitford's Eq. Pl. 144; 1 John. Ch. R. 349; 9 John. R. 442; 2
Paige's C. R. 278; 2 Bibb, 184; 3 Cowen's R. 637; 4 Cowen's R.
682 9 Cowen's R. 321; 2 Eq. Cas. Ab. 179; 3 Swans. R. 139. When
a great number of individuals are interested as in the instance
of creditors seeking an account of the estate of their deceased
debtor for payment of their demands, a few suing on behalf of the
rest may substantiate the suit, and the other creditors may come
in under the decree. 2 Ves. 312, 313. In such case the bill
should expressly show that it is fifed as well on the behalf of
other members as those who are really made the complainants; and
the parties must not assume a corporate, name, for if they assume
the style of a corporation, the bill cannot be sustained. 6 Ves.
jr. 773; Coop. Eq. Pl. 40; 1 John. Ch. R. 349; 13 Ves. jr. 397
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16 Ves. jr. 321; 2 Ves. sen. 312 S. & S. 18; Id. 184. In some
cases, however, when all the persons interested are, not made
parties, yet, if there be such privily between the plaintiffs and
defendants, that a complete decree may be made, the want of
parties is not a cause of demurrer. Mitf. El q. Pl. 145. Vide
Calvert on Parties to Suits in Equity; Edwards on Parties to
Bills in Chancery; Bouv Inst. Index, h. t.
PARTITION, conveyancing. A deed of partition is, one by which
lands held in joint tenancy, coparcenary, or in common, are
divided into distinct portions, and allotted to the several
parties, who take them in severalty.
2. In the old deeds of partition, it was merely agreed that one
should enjoy a particular part, and the other, another part, in
severalty; but it is now the practice for the parties mutually
to convey and assure to each other the different estates which
they are to take in severalty, under the partition. Cruise Dig.
t. 32, c. 6, s. 15.
PARTITION, ?states. The division which is made between several
persons, of lands, tenements, or hereditaments, or of goods and
chattels which belong to them as co-heirs or co-proprietors. The
term is more technically applied to the division of real estate
made between coparceners, tenants in common or joint tenants.
2. The act of partition ascertanas and fixes what each of the
co-proprietors is entitled to have in severalty
3. Partition is either voluntary, or involuntary, by
compulsion. Voluntary partition is made by the owners of the
estate, and by a conveyance or release of that part to each other
which is to be held by him in severalty.
4. Compulsory partition is made by virtue of special laws
providing that remedy. "It is presumed," says Chancellor Kent, 4
Com. 360, "that the English statutes of 31 and 32 Henry VIII.
have been generally reenacted and adopted in this country, and
probably, with increased facilities for partition." In some
states the courts of law have jurisdiction; the courts of equity
have for a long time exercised jurisdiction in awarding
partition. 1 Johns. Ch. R. 113; 1 Johns. Ch. R. 302; 4
Randolph's R. 493; State Eq. Rep. S. C. 106. In Massachusetts,
the statute authorizes a partition to be effected by petition
without writ. 15 Mass. R. 155; 2 Mass. Rep. 462. In
Pennsylvania, intestates' estates, may be divided upon petition
to the orphans' court. By the civil code of Louisiana, art. 1214,
et seq., partition of a succession may be made. Vide, generally,
Cruise's Dig. tit. 32, ch. 6, s. 1 5; Com. Dig. Pleader, 3 F;
Id. Parcener, C; Id. vol. viii. Append. h. t. 16 Vin. Ab. 217;
1 Supp. to Yes. jr. 168, 171; Civ. Code of Louis. B. 3, t. 1, c.
8.
5. Courts of equity exercise jurisdiction in cases of partition
on various grounds, in cases of such complication of titles, when
no adequate remedy can be had at law; 17 Ves. 551; 2 Freem. 26;
but even in such cases the remedy in equity is more complete, for
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equity directs conveyances to be made, by which the title is more
secure. "Partition at law, and in equity," says Lord Redesdale,
"are very different things. The first operates by the judgment of
a court of law, and delivering up possession in pursuance of it,
which concludes all the parties to it. Partition in equity
proceeds upon conveyances to be executed by the parties; and if
the parties be not competent to execute the conveyance, the
partition cannot be effectually had." 2 Sch. & Lef. 371. See 1
Hill. Ab. c. 55, where may be found an abstract of the laws of
the several states on this subject.
PARTNERS, contracts. Persons who have united together and
formed a partnership. 2. Every person sui juris is competent to
contract the relation of a partner. An infant may by law be a
partner. 5 B & A. 159; but a feme covert, not being capable of
contracting, cannot enter into partnership; and altbough married
women are not unfrequently entitled to shares in banking houses,
and other mercantile concerns, under positive covenants, yet when
this happens, their hushands are entitled to such shares, and
become partners in their steads. Whether a feme sole trader in
Pennsylvania could enter into such contract, seems not settled.
See 2 Serg. & Rawle, 189; see also, 2 Nott & McC. R. 242; 2
Bay, 162, 333; Code Civ. par Sirey, art. 220.
3. Partners are considered as ostensible, dormant, or nominal
partners. 1. An actual ostensible partner is a party who not only
participates, in the profits and contributes to the losses,
but.who appears and exhibits himself to the world as a person
connected with the partnership, and as forming a component member
of a firm. He is clearly answerable for the debts and engagements
of, the partnership; his right to a share of the, profits, or
the permitted exhibition of his name as partner, would be
sufficient to render him responsible. 6 Serg. & Rawle, 259, 337;
Barnard. 343; 2 Blackst. R. 998; 17 Ves. 404;. 18 Ves. 301; 1
Rose, 297; 16 Johns. R. 40; 3 Hayw. R. 78.
4. - 2. A dormant partner is one who is a participant in the
profile of the trade, but his name being suppressed and concealed
from the firm, his interest is consequently not apparent. He is
liable as a partner, because he receives and takes from the
creditors a part of that fund which is the proper security to
them for the satisfaction of debts, and upon which they rely for
payment. 16 Johns. R. 40. Another reason assigned for subjecting
a dormant partner to responsibility is, that if he were exempted
he would receive usurious interest for his capital, without its
being attended with any risk. 1 Dougl. 371; 4 East, R. 143; 10
Johns. R. 226; 4 B. & A. 663; 8 Man. Gr. & Scott, 641, 650. But
in order to render one liable as a partner, he must receive the
profits as such, and not merely his wages; to be paid out of the
profits. Vide Profits.
5. - 3. A, nominal partner is one who has not any actual
interest in the trade or its profits, but, by allowing his name
to be used, he holds himself out to the world as having an
apparent interest. He is liable as a partner, because of these
false appearance he holds forth to the world in representing
himself to be jointly concerned in interest with those with whom
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he is apparently associated. 2 H. Bl. 235; 1 Esp. N. P. O. 29;
6 Serg. & R. 338; Watts. Partn. 26.
6. A partner in a private commercial partnership cannot
introduce a stranger into the firm as a partner without the
consent of all the copartners. If he should attempt to do so,
this may make such stranger a partner with the partner who has
associated with such third person; this will be a partnership,
distinct from the first, and limited to the share of that partner
who has so joined himself with another. 2 Rose 255; Domat, de la
Societe, tit. 8, s. 2, n. 5.
7. As between the members of a firm and the persons having
claims upon it, each individual member is answerable in solido
for the amount of the whole of the debts contracted by the
partnership, without reference either to the extent of his own
separate beneficial interest in the concern, or. to any private
arrangement or agreement that may exist between himself and his
copartners, stipulating for a restricted responsibility. 1 Ves. &
Bea. 157; 9 East, 527; 5 Burr. 2611; 2 Bl. R. 947; 1 East, R.
20; 1 Ves. sen. 497; 2 Desaus. R. 148; 4 Serg. & Rawle, 356;
6 Serg. & Rawle, 333; Kirby, 53, 77, 147. In Louisiana, ordinary
partners are not bound in solido for the debts of the partner-
ship; Civ. Code of Lo. art. 2843; each partner is bound for his
share of the partnership debts, calculating such share in
proportion to the number of the partners, without any attention
to the proportion of the stock or profits each is entitled to id.
art. 2844.
8. Partners are bound by what is done by one in the course of
the business of the partnership. Their liability under contracts
is commensurate and coextensive with their rights. Although the
general rule of law is, that no one is liable upon any contract
except such as are privy to it; yet this is not contravened by
the liability of partners, as they are imagined virtually present
at and sanctioning the proceedings they singly enter. into in the
course of trade; or as each is vested with a power enabling him
to act, at once as principal and as the authorized agent of his
copartners. Wats. Partn. 167; Gow. Partn. 53. It is doubtful,
however, whether one can close the business by a general
assignment of the partnership property for the benefit of
creditors. Pierpont and Lord v. Graham. Cir. Court, April 1820,
MS. Whart. Dig. 453, 1st ed.; 4 Wash. C. C. R. 232; see 1
Brock. R. 456; 3 Paige's R. 517; 5 Paige's R. 30; 1 Desaus. R.
537; 4 Day's. R. 425; 5 Cranch, 300; 1 Hoffm. R. 08, 511;
Stor. Partn. §101; 2 Washb. R. 390.
9. One partner can, in simple contracts, bind his copartners in
transactions relative to the partnership. 7 T. R. 207; 4 Dall.
286; 1 Dall. 269. But a security given by, one partner, in the
partnership name, known to be for his individual debt, does not
bind the firm. 2 Caines' R. 246; 4 Johns. R. 251; 4 Johns. R.
262, in note; 2 Johns. R. 300; 16 Johns. R. 34; 4 Serg. &
Rawle, 397. Nor can one partner bind his copartners by deed; and
this both for technical reason and the general policy of the law.
Wats. Partn. 218; Gow on Partn. 83; 3 Murph. 321; 4 Sm. &
Marsh. 261; 7 N. H. Rep. 549; 1 Pike, 206; 2 Harr. 147; 2 B.
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Monr. 267; 5 B. Monr. 47; 4 Miss. 417; 1 McMullen, 311; 3
Johns. Cas. 180; Taylor's R. 113; 2 Caines' R. 254; 2 Caines'
Err. 1;. 2 Johns. R. 213; 19 Johns. R. 513; 1 Dall. 11,9. But
see 6 Watts & Serg. 165, where it is said this rule admits of
sorae qualifications. The rule does not however apply to cases
where the object is to discharge a debt as due to it; as to give
a general release by deed. 3 John. 68; 7 N. H. Rep. 550; 1
Wend. 326; 20 Wend. 251; 22 Wend. 324. It seems to be an
admitted principle, that one partner has no power to submit to
arbitration any matters whatsoever, concerning or arising out of
the partnership business. Story, Partn. §114; Com. Dig.
Arbitrament, D 2; 3 Bing. R. 101; 1 C. M. & R. 681; 1 Pet. R.
222; 19 John. R. 137; 3 Kent, Com. 49, 4th ed. But in
Pennsylvania, 12 S. & R. 243, and Kentucky, 3 Mont. R. 433, one,
partner may by an unsealed, instrument refer any partnership
matter to arbitration, though he has no implied authority to
consent to an order for a judgment in an action against himself
and his copartner. 3 Mann. G. & Scott, 742. Nor has one partner
the power to confess a judgment, or authorize the confession of a
judgment against the firm, when no writ has been issued against
both. 1 Wend. 311; 9 Wend. 437; 1 Blackf. 252; 1 Scamm. 428,
442. Such a judgment, however is binding on the one who confessed
it. 2 Bl. R. 1133; 1 Dall. 119; 1 W. & S. 340, 519; 7 W. & S.
142; 2 Caines, 254; 20 Wend. 609; and see 7 Watts, 331; 1 W.
& S. 519, 525; 2 Miles, 436; 1 Hoff. Ch. R. 525.
10. With regard to the tight of the majority of, the partners,
when there is a dissent among them, it may be laid down, 1. That
when there are stipulations on this subject, they must govern.
Tum. & Russ. 496, 517. 2. In the absence of all agreement on the
subject, each partner has an equal voice, though their interests
be different, and a majority have a right to conduct the
business. 3 John. Ch. R . 400; 3 Chit. Com. Law, 236; Colly.
Partn. B. 2, c. 2, s. 1; Id. B. 3, c. 1, s. 262 - Story, Partn.
123. 3. When there are only two partners, and they dissent,
neither can bind the partnership, when the person with whom they
deal has notice of such disagreement. 1 Stark. R. 164. See 1
Camp. R. 403; 10 East, R. 264; 7 Price, Rep. 193; 6 Ves. 777;
16 Vin. Ab. 244. But this right of the majority is confined to
transactions in the usual scope of the business, and not to a
change of the articles of the partnership, for in such case all
the partners must consent, 4 John. Ch. R. 573.
11. The stock used in a joint undertaking by way of partnership
in trade, is always considered in common and not as joint
property, and consequently there is no survivorship therein; jus
accrescendi inter mercatores, pro beneficio commercii, locum non
habet. On the death of one partner, therefore, his
representatives become tenants in common with the survivor, of
all the partnership effects in possession. But with respect to
choses in action, survivorship so far exists at law, as that the
remedy or right to reduce them into possession vests exclusively
in the survivor; although when they are recovered, the
representatives of the deceased partner have, in equity, the same
right of sharing and participating in them which their testator
or intestate would have possessed had he been living. 1 Ld. Raym.
340. See 2 Dall. 65, 66, in note; 1 Dall. 248; 4 Dall. 354; 2
Serg. & Rawle, 494.
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12. When real estate is owned by a partnership, it is held by
the partners subject in all respects to the ordinary incident's
of land held in common. 1 Sumn. R. 174; 7 Conn. 11; 5 Hill, (N.
Y.) Rep. 118; 4 Mete. 537. But in equity the partners may by
agreement, express or implied, affect real estate with a trust
as, a partnership property, and, by that means, render it in,
equity subject to the rules applicable to partnership property as
between the partners themselves and all claiming under them. 2
Edw. R. 28; 2 Rand. R. 183; 7, S. & R. 438, 441; Conn. 11; 5
Metc. 582; 6 Yerg. 20.
See, generally, as to partners, 5 Com. Dig. Merchant, D; Bac.
Abr. Merchant, C; Wats. on Partn. passim; Gow on Partn. passim;
Supp. to Ves. jr. vol. 1, p. 36, 279 281, 312, 389, 449, 503;
Id. vol. 2, p. 40, 314, 315, 317, 362, 364, 377, 384, 456; 1
Salk. 291, 392; 1 Swanst. R. 506, 9; 10 East R. 265; 4 Ves.
396; 1 Hare & Wall. Sel. Dec. 292, 304; Civ. Code of Lo. B. 3,
t. 11; Code Civ. L. 3, t. 9; Code de Proc. Civ. L. 1, t. 3;
Chit. Contr. 66 to 82; Poth. Contrat de Soeiete; Bouv. Inst.
Index, h. t. Vide Articles of Partnership; Death of. a partner;
Dissolution; Firm; Partnership.
PARTNERSHIP, contracts. An agreement between two or more
persons, for joining together their money, goods, labor and
skill, or either or all of them, for the purpose of advancing
fair trade, and of dividing the profits and losses arising from
it, proportionably or otherwise, between them. 2 Bouv. Inst. n.
1435; Watson on Partn. 1; Gow on Partn. 2; see Civ. Code of
Lo. art. 2772; Code Civ. art. 1832; Forbes. Inst. of Scotch
Law, part 2, B. 3, s. 3, p. 184; edit. Edin. 1722, 12mo.;
Dolmat, Civ. Law, vol. 1, p. 85; 9. John. R. 488; Puffend. B.
5, c. 8; 2 H. Bl. 246; 1 H. Bl. 37; Ersk. Inst. B. 3, t. 3,
§18; Tapia, Elemontos de Jurisp. Mercantil, p. 86; 5 Duv. Dr.
Civ. Fr. tit. 9, c. 1, n, 17; 4 Pard. Dr. Com. n. 966; 2 Bell's
Com. 611, 5th ed.; Aso & Mann. Inst. B. 2, tit.
15. Sometimes partnership signifies a moral being composed of
the reunion of all the partners. 4 Pard. n. 966. As a partnership
has a separate existence as a person, it becomes liable to fulfil
all its engagements, and the partners are individually bound and
responsible only on its default, as sureties. 2 Bell's Comm. B.
6, c. 1, n. 4, p. 619, 5th ed.
2. Partnerships will be considered, 1st. In respect to their
character and extent, as they regard property. 2d. With relation
to the number and character of parties. 3d. As they are divided
by the French code. 4th. As to their creation. 5th. As to their
object. 6th. As to their duration. 7th. As to their dissolution.
8th. As to partnerships in Louisiana.
3. - §1. In respect to their character and extent, as they
regard property, partnerships maybe divided into three classes,
namely: universal partnerships; general partnerships; and
limited or special partnerships. 1. A universal partnership is
one where the parties agree to bring into the firm all their
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property, real, personal and mixed, and to employ all their
skill, labor, and services, in the trade, or business, for their
common benefit. This, kind of partnership is perhaps unknown in
the United States. 5 Mason, R. 176.
4. - 2. General partnerships are properly such, where the
parties carry on all their trade and business for their joint
benefit and profit; and it is not material whether the capital
stock be limited or not, or the contributions of the partners be
equal or unequal. Cowp. 814. The game appellation is given to a
partnership where the parties are engaged in one branch of trade
only.
5. - 3. Special partnerships, are those formed for a special or
particular branch of business, as contradistinguished from the
general business or employment of the parties, or of one of them.
When they extend to a single transaction or adventure only, such
as the purchase and sale of a particular parcel of goods, they
are more commonly called limited partnerships. The appellation is
however given to both classes of cases indiscriminately. Story,
Partn. §75
6. - §2. When considered in relation to the number and
character of the parties, partnerships are divided into private
partnerships and public companies. 1. Private partnerships are
those which consist of two or more partners for some private
undertaking, trade, or business.
7. §2. Public companies are those where a greater number of
persons are concerned, and the stock is divided into a
considerable number of shares, the object embracing generally
public as well as private interests. This term is, however,
perhaps loosely applied, as these companies have for the most
part the character of private associations. They are either
incorporated or not. The incorporated are to be governed by the
rules established in their respective charters. See Corporation.
The unincorporated are in general subject, to all the regulations
of a common private partnership.
8. - §3. In the French law, partnerships are divided into three
kinds, namely: 1. Partnerships under a collective name, that is,
where the name of the firm contains the names of all or some of
the partners.
9. - 2. Partnerships en commandite or in commendam; these are
limited partnerships, where one or more persons are general
partners, and are jointly and severally responsible with all
their estates, and one or, more other persons who furnish a part
or the whole of the capital, who are liable only to the extent of
the capital they have furnished. The business is carried on in,
the name of the general partners. This species of partnership,
with some modifica- tions, has been adopted in several of the
states of the American union. 3 Kent, Com. 34, 4th ed.; 2 Bouv.
Inst. n. 1473, et seq.
10. - 3. Anonymous partnerships are those in which all the
partners are engaged in the business, there is no social name or
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firm, but a name designating the object of the association. The
business is managed by syndics or directors. Vide Poth. de
Societe, h. t.; 5, Duv. Dr. Civ., Fr. h. t.; Pardes. Dr: Com.
h. t.; Code de Com. h. t.; Merl. Repert. h. t. In Louisiana a
similar division has been made. Civ. Code of Lo. h. t.
11. - §4. Partnerships are created by mere act of the parties;
and in this they differ from, corporations which require the
sanction of public authority, either express or implied. Aug. &
Ames on Corp. 23. The consent of the parties may be testified,
either in express terms, as by articles of partnership, or
positive agreement; or the assent may be tacit, and to be
implied solely from the act of the parties. An implied or
presumptive assent has equal operation with one that is express
and determined. And it may be laid down as a general and
undeniable proposition, that persons having a mutual interest in
the profits and loss of any business, or particular branch of
business, carried on by them, or persons appearing ostensibly to
the world as joint traders, are to be recognized and treated as
partners, whatever may be the nature of the agreement under which
they act, or whatever motive or inducement may prompt them to
such an exhibition. 1 Dall. 269. 12. A community of property does
not of itself create a partnership, however that property may be
acquired, whether by purchase, donation, accession, inheritance
or prescription. Civ. Code of Louis. art. 2777. Hence joint
tenants or tenants in common of lands, goods, or chattels, under
devises or bequests in last wills or testaments, and doeds or
donations inter vivos, and inheritances or successions, are not
partners. Story, Partn. §3.
13. Joint owners of ships are not, in consequence of such
ownership, to be considered as partners. Abbot on Ship. 68; 3.
Kent, Com. 25, 4th ed.; 15 Wend. 187; and see Poth. De Societe,
n. 2; 4 Pard. Dr. Com. n. 969; 17 Dur. Dr. Fr. n. 320; 5 Duv.
Dr. Civ. Fr. n. 33.
14.- The free and personal choice of the contracting parties is
so essentially necessary to the constituting of a partnership,
that even executors and representatives of deceased partners do
not, in their representative capacity, succeed to the state and
condition of partners; 2 Ves. sen. 34; Wats. on Partn. 6;
although a community of interest necessarily exists between them
and the surviving partners, until the affairs of the partnership
are wound up. 11 Ves. 3. When there is a positive agreement at
the commencement of the partnership, that the personaI
representative or heir of a partner shall succeed him in the
partnership, the obligation will be considered valid. Coll. on
part. B. 1; ch. 1, §11; Story, Partn. §5.
15. - §5. The object of the partnership must be legal. All
partnerships, therefore, which are formed for any purpose
forbidden by law or good morals, are null and void. But all the
partners in such a partnership are jointly liable to third
persons who may contract with them without a knowledge of the
illegal or immoral object of the partnership. Civ. Code of Lo.
art.- 2775; 5 B. & A. 341 2 B. & P. 371; 3 T. R. 454; Poth.
Oblig. by Evaans, vol. 2, page 3; Gow on Partn. 8; Wats. Partn.
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131. Partnerships are not confined to mere commercial trade or
business; but generally extend to, manufactures and, to all
other lawful occupations and employments, or to professional or
other business. They may extend to all the business of the
parties; to a single branch of such business; to a single
adventure; or to a single thing. But there cannot lawfully be a
partnership in a mere, personal office, especially when it is of
a public nature, requiring the personal confidence in the skill
and integrity of the officer. Story, Partn. §81; Colly. Partn.
31.
16. - §6. Partnerships may be formed to last for life, or for a
specific period of time; they may be conditional or indefinite
in their duration, or for a single adventure or dealing; this
depends altogether on the will of the parties. The period of
duration is either expressed or implied, but the law will not
presume that it shall last beyond life. 1 Swanst. 521; 1 J.
Wils. R., 181. When a particular term is fixed, it is presumed to
endure until the period has elapsed; when no term is fixed, it
is presumed to endure for the life of the parties, unless
previously dissolved, by the acts of one of them, by mutual
consent, or by operation of law. Story, Partn. §84. When no time
is limited for the duration of a general trading partnership, it
is a partnership at will, and may be dissolved at any time at the
pleasure of any one or more of the partners.
17. - §7. A partnership may be dissolved in several ways: when
the partnership is formed for a single dealing or transaction, it
follows that it is at an end so soon as the dealing or
transaction in which the partners jointly engaged is completed.
Gow on Partn. 268; Inst. Lib. 3, tit., 26, s. 6.
18. Where a general partnership is formed, either for a
definite, or an indefinite period of time, the causes which may
operate a destruction of it, are various. In the case of a
partnership limited as to its duration, it may, in the
intermediate time, before the restricted period of its
termination arrives, be dissolved either by the death, the
confirmed insanity, the bankruptcy of all or one of the partners,
or it may endure the stipulated period, and expire with the
effluxion of time; but where the partnership is unlimited as to
its existence, although in the instances of death or bankruptcy,
it is determined, yet if they do not intervene, any partner may
withdraw himself from it whenever he thinks proper. Code, lib. 4,
t. 37, 1, 5.
19. Besides the causes above stated for a dissolution, a
partnership, limited or unlimited as to its duration, may be
dissolved by the decree of a court of equity, where the conduct
of some or all of the partners has been such as not to carry on
the trade or undertaking on the terms stipulated; Gow on Partn.
269; or by the involuntary or compulsory, sale or transfer of
the partnership interest of any one of the partners. 17 John. R.
525.
20. In New York, it has been held that there is no such thing
as an indissoluble partnership, and that, therefore, any partner
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may withdraw at any time; and by that act the partnership will
be solved; the other party having his action against the
withdrawing partner upon his covenant to continue the
partnership; 19 Johns. R. 538. This doctrine is not in
accordance with the English law. Indeed it is even doubtful in
New York. Story, Eq. Jur. §668; Story, Partn. §275; 3 Kent Com.
61, 4th ed.; 1 Hoffm. Ch. R. 534. See Gow on Partn. 803, 305,
and 4 Wash. C. C. R. 232.
21. It may also be dissolved by the extinction of the thing or
object of the partnership; or by the agreement of the parties.
See Civ. Code of Louis. art. 2847 Code Civ. B. 3, fit. 9, c 4
art. 1865 to 1872; 2 Bell's Com. 631 to 6414, 6th ed. See
Dissolution.
22. The effect of the dissolution of the partnership is to
disable any one of the partners from contracting new obligations
or engagements on account of the firm. 1 Pet., R. 351; 3 McCord,
378; 4 Munf. 215; 2 John., 300; 5 Mason, 56; Harper, R. 470;
4 John. 224; 1 McCord, 338; 6 Cowen, 701. But notwithstanding
the dissolution there remain, with each of the partners, certain
powers, rights, duties, authorities, and relations between them,
which are indispensable to the complete arrangement and final
settlement of the affairs of the firm. The partnership must,
therefore, subsist for many purposes, notwithstanding the
dissolution. Among these are, 1st. The completion of an the
unperformed engagements of the partnership. 2d. The conversion of
all the property, means and assets of the partnership, existing
at the time of the dissolution, for the benefit of those who,
were partners, according to their respective shares. 3d. The
application of the partnership funds, to, the liquidation of the
partnership debts. Story, Partn. §324.
23. - §3. By the laws of Louisiana, partnerships are divided,
as to their object, into commercial partnerships and ordinary
partnerships Commercial partnerships are such as are formed, 1.
For the purchase of any personal property, and the sale thereof,
either in the same state or changed by manufacture. 2. For buying
and selling any personal property whatsoever, as factors or
brokers. 3. For carrying personal property for hire, in ships or
other vessels. Civ. Code of Lo. art., 2796.
24. Ordinary partnerships are, such as are not commercial;
they are divided into universal or particular partnerships. Id.
art. 2797.
25. Universal partnership is a contract by which the parties
agree to make a common stock of all the property they
respectively possess; they may extend it to all the property
real and personal, or restrict it to personal only; they may,
as, in other partnerships, agree that the property itself shall
be common stock, or that the fruits only shall be such; but prop
erty which may accrue to one of the parties, after entering into
the partnership, by donation, succession, or legacy, does not
become common stock, and any stipulation to that effect, previous
to the obtaining the property aforesaid, is void. Code Civ. of
Lo.art. 2800.
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26. Particular partnerships are such as are formed for any
business not of a commercial nature. Id. art. 2806. The business
of this partnership must be conducted in the name of all the
persons concerned, unless a firm is adopted by the articles of
partnership reduced to writing, and recorded as is prescribed
with respect to partnerships in commendam. Id. art 2808.
27. There is also a species of partnership which may be
incorporated with either of the other kinds, called partnership
in commendam, or limited partnership. Id. art. 799. Partnership
in commendam is formed by a contract, by which one person or
partnership agrees to furnish another person or partnership a
certain amount, either in property or money, to be employed by
the person or partnership whom it is furnished, in his or their
own name or firm, on condition of receiving a share in the
profits, in the proportion determined by the contract, and of
being liable to losses and expenses to the amount furnished, and
no more. Id. art. 2810.
28. Every species of partnership may receive such partners. It
is therefore a modification of which the several kinds of
partnerships are susceptible, rather than a separate division of
partnerships. Vide Bouv. Inst. Index, h. t.: Firm.
PARTOWNERS. Persons who hold real or personal property by the
same title, either as tenants in common, joint tenants, or
coparceners. They are sometimes called guasi partners and differ
from partners in this, that they are either joint owners, or
tenants in common, each having an independent, although an
undivided interest in the property; neither can transfer or
dispose of the whole property, nor act for the others in relation
to it, but merely for his own share, and to the extent of his own
several right and interest.
2. In joint tenancy of goods or chattels, it is true, the joint
tenants are seized per my et per tout; but still each one has an
independent, and to a certain extent a distinct right during his
lifetime, which he can dispose of and sever the tenancy.
3. Tenants in common hold undivided portions of the property by
several titles, or in several rights, although by one title.
Their possession, however, they hold in common and undivided.
Whereas, in partnerships, the partners are joint owners of the
property, and each has a right to sell or dispose of the whole,
unless otherwise provided for in the articles of partnership.
Colly. Partn. 86; Wats. Partn. 66; Story, Partn. §91.
4. At common law, each of the owners of a chattel has an equal
title and right to possess and use it; and in the case of common
cbattels the law has generally left this right to the free
discretion of the several owners but in regard to ships, the
common law has adopted and followed' out the doctrine of the
courts of admiralty. It authorizes the majority in value and
interest to employ the ship upon any probable design. This is
done, not without guarding the rights, of the minority. When the
majority desire to employ a ship upon any particular voyage or
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adventure, they have a right to do so, upon giving security by
stipulation to the minority, if required, to bring back and
restore the ship to them, or in case of her loss, to pay them the
value of their shares. Abbott, Shipp. 70; 3 Kent Com. 151, 4th
ed.; 2 Bro. Civ. Law, 131; Molloy, B. 2, c. 1, §3; 2 Pet. Adm.
R. 288; Story, Partn. 428 11 Pet. R. 175. When the majority do
not choose to employ the ship, the minority have the same right,
upon giving similar security. 11 Pet. R. 175; 1 Hagg. Adm. R.
306; Jacobi: Sea Laws, 442.
5. When part owners are equally divided as to the employment,
upon any particular voyage, the courts of admiralty have man
fested a disposition to support the right of the court to order a
sale of the ship. Story Partn. §439; Bee's Adm. R. 2; Gilpin,
R. 10; 18 Am. Jur. 486.
PARTURITION. The act of giving birth to a child.
2. Sometimes questions arise how far means may be employed to
promote par turition, which cause, or are likely to cause others
in relation to it, but merely for his own share, and to the
extent of his own several right and interest.
3. In joint tenancy of goods or chattels, it is truej tbd joint
tenants are so ized per my et per toitt, but still each one has
an independent, and to a certain extent a distinct right during
his lifetime, which he can dispose of and sever the tenancy.
3. Tenants in common hold undivided portions of the, property
by several titles, or in several rights, although by one title.
Their possession, bowever, they hold in common and undivided.
Whereas, in partnerships, the partners are joint owners of the
property, and each has a right to sell or dispose of the whole,
unless otherwise provided for in the articles of partnership.
Colly. Partn. 86; Wats. Partn. 66; Story Partn. §91.
4. At common law, etch of the owners of a ebattel has an equal
title and right to possess and use it; and in the case of common
chattels the law has generally, left this right to the free
discretion of the several owners, but in regard to ships, the
common law has adopted and followed out the doctrine of the
courts of admiralty. It authorizes the majority in value and
interest to employ the rehip upon any probable design. This is
done, not without guarding the rights, of the minority: When the
maiority desire to employ a ship upon any particular voyage or
adventure, they have a right to do so, upon giving security by
stipulation to the minority, if required, to bring back and
restore the rbip to them, or in case of her loss, to pay them the
value of their shares. Abbott, Shipp. 70; 3 Kent, Com. 151, 4th
ed.; 2 Bro. Civ. Law, 131; Molloy, B. 2, c. 1, §3; 2 Pet. Adm.
R. 288, Story, Partn. 428; 11 Pet. R. 175. When the majority do
not choose to employ the ship, the minority have, the same right,
upon 'vi" similar security. 11 Pet. R. 175; I @agg! Adm. R. 306;
Jacobi. Sea Laws, 442.
6. When part owners are equally divided as to the employment,
upon any particular voyage, the courts of admiralty, have
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manifested a disposition to support the right of the court to
order a sale of the ship. Story, Partn. §439; Bee's Adm. R. 12 i
Gilpili, R. 10; 18 Am. Jur. 486.
PARTURITION. Tho act of giving birth to a child
2. Sometimes questions arise bow far means may be employed to
promote par-turition, which cause, or are likely to cause, the
death of the foetus. These means, in cases of deformed pelvis,
are abortion in the early months, by embryotomy, by symphysotomy,
and by the Caesarian section. These means are justifiable to save
the life of the mother, and sometimes some of them have saved the
lives of both. Vide Caesarian operation; Delivery; Pregnancy.
PARTUS. The child just before it is born, or immediately after
its birth. Before birth the partus is considered as a portion of
the mother. Dig. 25, 4, 1, 1. -See Birth; Foetus; Proles;
Prolicide.
PARTY, practice, contracts. When applied to practice, by party
is understood either the plaintiff or defendant. In contracts, a
party is one or more persons who engage to perform or receive the
performance of some agreement. Vide Parties to contrads; Parties
to 'actions; Parties to a suit in equity.
PARTY-JURY. An ancient word used to signify a jury de medietas
linguae, (q. v.) or one composed one-half of natives, and the
other of foreigners. Lexic. Techn. h. t.
PARTY WALL. A wall erected on the line between two adjoining
estates, belonging to different persons, for the use of both
estates. 2 Bouv. Inst. n. 1615.
2. Party walls are generally regulated by acts of the local
legislatures. The principles of these acts generally are, that
the wall shall be built equally on the lands of the adjoining
owners, at their joint expense, but when only one owner wishes to
use such wall, it is built at his expense, and when the other
wishes to make use of it, he pays one half of its value; each
owner has a right to place his joists in it, and use it for the
support of his roof. When the party wall has been built, and the
adjoining owner is desirous of having a deeper foundation, he has
a right to undermine such wall, using due care and diligence to
prevent any injury to his neighbor, and having done so, he is not
answerable for any consequential damages which may ensue. 17
Jobn. R. 92; 12 Mass. 220; 2 N. H. Rep. 534. Vide 1 Dall. 346;
5 S . & R. 1.
3. When such wall exists between two buildings, belonging to
different persons, and one of them takes it down with his
buildings, he is required to erect another in its place in a
reasonable time, and with the least inconvenience; the other
owner must contribute to the expense, if the wall required
repairs, but such expense will be limited to the costs of the old
wall. 3 Kent, Com. 436. When the wall is taken down, it must be
done with care; but it is not the duty of the person taking it
down to shore up or prop the.,house of his neighbor, to prevent
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it from falling; if, however, the work be done with negligence,
by which injury accrues to the neighboring house, an action will
lie. 1 Moody & M. 362. Vide 4 C. & P. 161; 9 B. & C. 725; 12
Mass. R. 220; 4 Paige's R. 169; 1 C. & J. 20; 1 Pick. 434; 12
Mass. 220; 2 Roll., Ab. 564; 3 B. & Ad. 874; 2 Ad. &-Ell. 493
Crabb on R. P. §500. In the excellent treatise of M. Lepage,
entitled "Lois des Batimens," part 1, c. 3, s. 2, art. l, will be
found a very minute examination of the subject of party walls,
with many cases well calculated to illustrate our law. See also
Poth. Contr. de Societe, prem. app. n. 207; 2 Hill.: Ab. 119;
Toull. liv. 2, t. 2, c. 3.
PASS. In the slave states this word signifies a certificate
given by the master or mistress to a slave, in which it is stated
that he is permitted to leave his home, with the authority of his
master or mistress. The paper on which-such certificate is
written is also called a pass.
PASS, practice. To be given, or entered; to proceed; as, let
the judgment pass for the plaintiff.
TO PASS. To accomplish, to complete, to decide.
2. The title to goods passes by the sale whenever the parties
have agreed upon the sale and the price, and nothing remains to
be done to complete the agreement. 1 Bouv. Inst. n. 939.
3. When a jury decide upon the rights of the parties, which are
in issue, they are said to pass upon them.
PASS BOOK, com. law. A book used by merchants with their
customers, in which an entry of goods sold and delivered to a
customer is made.
2. It is kept by the buyer, and sent to the merchant whenever
he wishes to purchase any. article. It ought to be a counterpart
of the mercbant's books, as far as regards the customer's
account.
3. Among English bankers, the term pass-book is given to a
small book made up from time to time, from the banker's ledger,
and forwarded to the customer; this is not considered as a
statement of account between the parties, yet when the customer
neglects for a long time to make any objection to the correctness
of the entries he will be bound by them. 2 Atk. 252; 2 Deac. &
Ch. 534; 2 M. & W. 2.
PASSAGE. A way over water; a voyage made over the sea or great
river; as, the Sea Gull had a quick passage: the money paid for
the transportation of a person over the sea; as, my, passage to
Europe was one hundred and fifty dollars.
PASSAGE MONEY, contracts. The sum claimable for the conveyance
of a person with or without luggage on the water.
2. The difference between freight and passage money is this,
that the former is claimable for the carriage of goods, and the
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latter for the carriage of the person. The same rules which
govern the claim for freight affect that for passage money. 3
Chit. Com. Law, 424; 1 Pet. Adm. Dee. 126; 3 John. 335.
PASSIVE, com. law. All the sums of which one is a debtor. It is
used in contradistinction to active. (q. v.) By active debts are
understood those which may be employed in furnishing assets to a
merchant to pay those which he owes, which are called passive
debts.
PASSPORT, SEA BRIEF, or SEA LETTER, maritime law. A paper
containing a permission from the neutral state to the captain or
master of a ship or vessel to proceed on the voyage proposed; it
usually contains his name and residence; the name, property,
description, tonnage and destination of the ship; the nature and
quantity of the cargo; the place from whence it comes, and its
destination; with such other matters as the practice of the
place requires.
2. - This document is indispensably necessary in time of war
for the safety of every neutral vessel. Marsh. Ins. B. 1, c. 9,
s. 6, p. 406, b.
3. In most countries of continental Europe passports are given
to travellers; these are intended to protect them on their
journey from all molestation, while they are obedient to the
laws. Passports are also granted by the secretary of state to
persons travelling abroad, certifying that they are citizens of
the United States. 9 Pet. 692. Vide 1 Kent, Com. 162, 182; Merl.
Repert. h. t.
PASSENGER, cont. One who has taken a place. in a public
conveyance, for the purpose of being transported from one place
to another.
2. By act of Feb. 22, 1847, Minot's Statutes at Large of United
States, p. 127, it is provided as follows: That if the master of
any vessel owned in whole or in part by a citizen of the United
States of America, or by a citizen of any foreign country, shall
take on board, such vessel, at any foreign port or place, a
greater number of passengers than in the following proportion, to
the space occupied by them and appropriated for their use, and
unoccupied by stores, or other goods, not being the personal
luggage of such passengers, that is to say, on the lower deck or
platform one passenger for every fourteen clear superficial feet
of deck, if such vessel is not to pass within the tropics during
such voyage; but if such vessel is to pass within the tropics
during such voyage, then one passenger, for every twenty such
clear superficial feet of deck, and on the orlop deck (if any)
one passenger for every thirty such superficial feet in all
cases, with intent to bring such passengers to the United States
of America, and shall leave such port or place with the same or
any other number thereof, within the jurisdiction of the United
States aforesaid, or if any such master of vessel shall take on
board of his vessel, at any port or place within the jurisdiction
of the United States aforesaid, any greater number of passengers
than the proportions aforesaid admit, with intent to carry the
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same to any foreign port or place, every such master shall be
deemed guilty of a misdemeanor, and, upon conviction thereof
before any circuit or district court of the United States
aforesaid, shall, for each passenger taken on board beyond the
above proportions, be fined in the sum of fifty dollars, and may
also be imprisoned for any term not exceeding one year:
Provided, That this act shall not be construed to permit any ship
or vessel to carry more than two passengers to five tons of such
ship or vessel.
3. - §2. That if the passengers so taken on board of such
vessel, and brought into or transported from the United States
aforesaid, shall exceed the number limited by the last section to
the number of twenty in the whole, such vessel shall be forfeited
to the United States aforesaid, and be prosecuted and distributed
as forfeitures are under the act to regulate duties on imports
and tonnage.
4. - §3. That if any such vessel as aforesaid shall have more
than two tiers of berths, or in case, in such vessel, the
interval between the floor and the deck or platform beneath shall
not be at least six inches, and the berths well constructed, or
in case the dimensions of such berths shall not be at least six
feet in length, and at least eighteen inches in width, for each
passenger as aforesaid, then the master of said vessel, and the
owners thereof, severally, shall forfeit and pay the sum of five
dollars for each and every passenger on board of said vessel on
such voyage, to be recovered by the United States aforesaid, in
any circuit or district court of the. United States where such
vessel may arrive, or from which she sails.
5. - §4. That, for the purposes of this act, it shall in all
cases be computed that two children, each being under the age of
eight years, shall be equal to one passenger, and that children
under the age of one year shall not be included in the
computation of the number of passengers.
6. - §5. That the amount of the several penalties imposed by
this act shall be liens on the vessel or vessels violating its
provisions; and such vessel may be libelled and sold therefor in
the district court of the United States aforesaid in which such
vessel shall arrive.
9. By act of March 2, 1847, Minot's Statutes at Large of United
States, p. 149, it is enacted, That so much of said act as
authorizes shippers to estimate two children of eight years of
age and under as one passenger, in the assignment of room, is
hereby repealed.
10. The act of May 17, 1848, Minot's Statute at Large of United
States, p. 220, further provides, That all vessels, whether of
the United States or any other country, having sufficient
capacity according to law for fifty or more passengers, (other
than cabin passengers,) shall, when employed in transporting such
passengers between the United States and Europe, have on the
upper deck, for the use of such passengers, a house over the
passage-way leading to the apartment allotted to such passengers
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below deck, firmly secured to the deck, or combings, of the
hatch, with two doors, the sills of which shall be at least one
foot above the deck, so constructed that one door or window in
such house may, at all times, be left open for ventilation; and
all vessels so employed, and having the capacity to carry one
hundred and fifty such passengers, or more, shall have two such
houses; and the stairs or ladder leading down to the aforesaid
apartment shall be furnished with a handrail of wood or strong
rope: Provided, nevertheless, Booby hatches may, be substituted
for such houses in vessels having three permanent decks.
11. - §2. That every such vessel so employed, and having the
legal capacity for more than one hundred such passengers, shall
have at least two ventilators to purify the apartment or
apartments occupied by such passengers; one of which shall be
inserted in the after part of the apartment or apartments, and
the other shall be placed in the forward portion of the apartment
or apartments, and one of them shall have an exhausting cap to
carry off the foul air, and the other a receiving cap to carry
down the fresh air which said ventilators shall have a capacity
proportioned to the size of the apartment or apartments to be
purified; namely, if the apartment or apartments will lawfully
authorize the reception of two hundred such passengers, the
capacity of such ventilators shall each of them be equal to a
tube of twelve inches diameter in the clear, and in proportion
for larger or smaller apartments; and all said ventilators shall
rise at least four feet six inches above the upper deck of any
such vessel, and be of the most approved form and construction:
Provided, That if it shall appear from the report to be made and
approved., as provided in the seventh section of this act that
such vessel is equally well ventilated by any other means, such
other means of ventilation shall be deemed, and held to be, a
compliance with the provisions of this section.
12. - §3. That every vessel carrying more than fifty such
passengers shall have for their use on deck, housed and
conveniently arranged, at least one camboose or cooking range,
the dimensions of which shall be equal to four feet long and one
foot six inches wide for every two hundred passengers; and
provisions shall be made, in the manner aforesaid in this ratio
for a greater or less number of passengers: Provided, however,
Ana nothing herein contained shall take away the right to make
such arrangements for cooking between decks, if that shall be
deemed desirable.
13. - §4. That all vessels employed as aforesaid shall have on
board, for the use of such passengers, at the time of leaving the
last port whence such vessel shall sail, well secured under deck,
for each passenger, at least fifteen pounds of good navy bread,
ten pounds of rice, ten pounds of oatmeal, ten pounds of wheat
flour, ten pounds of peas and beans, thirty-five pounds of
potatoes, one pint of vinegar, sixty gallons of fresh water, ten
pounds of salted pork, free of bone, all to be of good quality,
and a sufficient supply of fuel for cooking; but at places where
either rice, oatmeal, wheat flour or peas and beans cannot be
procured, of good quality and on reasonable terms, the quantity
of either or any of the other last-named articles may be
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increased and substituted therefor; and in case potatoes cannot
be procured on reasonable terms, one pound of either of said
articles maybe substituted in lieu of five pounds of potatoes;
and the captains of such vessels, shall deliver to each passenger
at least one-tenth part, of the aforesaid provisions weekly,
commencing on the day of sailing, and daily at least three quarts
of water, and sufficient fuel for cooking; and if the passengers
on board of any such vessel in which the provisions, fuel and
water herein required shall not have been provided as aforesaid,
shall at any time be put on short allowance during, any voyage,
the master or owner of any such vessel shall pay to each and
every passenger who shall have been put on short allowance the
sum of three dollars for each and every day they may have been on
such short allowance, to be recovered in the eircuit or district
court of the United States; Provided, nevertheless, and nothing
herein contained shall prevent any passenger, with the consent of
the captain, from furnishing for himself the articles of food
herein specified; and, if, put on board in good order, it shall
fully satisfy the provisions of this act so far as regards food,
and provided further, That any passenger may also, with the
consent of the captain, furnish for himself an equivalent for the
articles of food required in other and different articles: and
if, without waste or neglect on the part of the passenger, or
inevitable accident, they prove insufficient, and the captain
shall furnish comfortable food to such passengers during the
residue of the voyage, this, in regard to food, shall also be a
compliance with the terms of this act.
14. - §5. That the captain of any such vessel so employed is
hereby authorized to maintain good discipline, and such habits of
cleanliness among such passengers, as will tend to the
preservation and promotion of health,; and to that end, he shall
cause such regulations as he may adopt for this purpose to be
posted up, before sailing, on board such vessel, in a place
accessible to such passengers, and stall keep the same so posted
up during the voyage; and it is hereby made the duty of said
captain to cause the apartment occupied by such passengers to be
kept, at all times, in a clean healthy state, and the owners of
every such vessel so employed are required to construct the
decks, and all parts of said apartment, so that it can be
thoroughly cleansed; and they shall also provide a safe,
convenient privy or water closet for the exclusive use of every
one hundred such passengers. And when the weather is such that
said passengers cannot be mustered on deck with their bedding, it
shall be the duty of the captain of every such vessel to cause
the deck occupied by such passengers to be cleaned [cleansed]
with chloride of lime, or some other equally efficient
disinfecting agent, and also at such other times as said captain
may deem necessary.
15. - §6 That the master and owner or owners of any such vessel
so employed, which shall not be provided with the house or houses
over the passage-ways, as prescribed in the first section of this
act; or with ventilators, as proscribed in the second section of
this act; or with the cambooses or cooking ranges, with the
houses over them, as prescribed in the third section of this act;
shall severally forfeit and pay to the United States the sum of
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two hundred dollars for each and every violation of, or neglect
to conform to, the provisions of each of said sections; and
fifty dollars for each and every neglect or violation of any of
the provisions of the fifth section of this act; to be recovered
by suit in any circuit or district court of the United States,
within the jurisdiction of which the said vessel may arrive, or
from. which it may be about to depart, or at any place within the
jurisdiction of such courts, wherever the owner or owners, or
captain of such vessel, may be found.
16. - §7. That the collector of the customs, at any port in the
United States at which any vessel so employed shall arrive, or
from which any such vessel shall be about to depart, shall
appoint and direct one of the inspectors of the customs for such
port to examine such vessel, and report in writing to such
collector whether the provisions of the first, second, third and
fifth sections of this act have been complied with in respect to
such vessel; and if such report shall state such compliance, and
be approved by such collector, it shall be deemed and held as
conclusive evidence thereof.
17. - §8. That the first section of the act entitled, "An act
to regulate the carrying of passengers in merchant vessels,"
approved February twenty-second, eighteen hundred and
forty-seven, be so amended that, when the height or distance
between the decks of the vessels referred to in the said section
shall be less than six feet, and not less than five feet, there
shall be allowed to each passenger sixteen clear superficial feet
on the deck, instead of fourteen, as prescribed in said section;
and if the height or distance between the decks shall be less
than five feet, there shall be allowed to each passenger
twenty-two clear superficial feet on the deck; and if the master
of any such vessel shall take on board his vessel, in any port of
the United States, a greater number of passengers than is allowed
by this section, with the intent specified in said first section
of the act of eighteen hundred and forty-seven, or if the master
of any such vessel shall take on board at a foreign port, and
bring within the jurisdiction of the United, States, a greater
numher of passengers than is allowed by this section, said master
shall be deemed guilty of a misdemeanor, and upon conviction
thereof shall be punished in the manner provided for the
punishment of persons convicted of a violation of the act
aforesaid; and in computing the number of passengers on board
such vessels, all children under the age of one year, at the time
of embarkation, shall be excluded from such computation.
18. - §9. That this act shall take effect, in respect to such
vessels sailing from ports in the United States, in thirty days
from the time of its approval; and in respect to every such
vessel sailing from ports in Europe, in sixty days after such
approval; and it is hereby made the duty of the secretary of
state to give notice, in the ports of Europe, of this act, in
such manner as he may deem proper.
19. - §10. That so much of the first section of the act
entitled " An act regulating passenger ships and vessels,"
approved March second, eighteen hundred and nineteen, or any
other act that limits the number of passengers. to two for every
five tons, is hereby repealed.
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20. By act of March 3, 1849, Minot's Statutes at Large of
United States, p. 399, it is enacted, That all vessels bound from
any port in the United States to any port or place in the Pacific
Ocean, or on its tributaries, or from any such port or place to
any port in the, United States on the Atlantic, or its
tributaries, shall be subject to the provisions of all the laws
now in force relating to the carriage of passengers in merchant
vessels, sailing to and from foreign countries, and the
regulation thereof; except the fourth section of the "Act to
provide for the ventilation of passenger vessels, and for other
purpoes," approved May seventeenth, eighteen hundred and
forty-eight, relating to provisions, water, and fuel; but the
owners and masters of all such vessels shall in all cases furnish
to each passenger the daily supply of water therein mentioned,
and they shall furnish for themselves, a sufficient supply of,
good and wholesome food; and in case they shall fail so to do,
or shall provide unwholesome or unsuitable provisions, they shall
be subject to the penalty provided in said fourth section in case
the passengers are put on short allowance of water or provisions.
21. - §2. That the act, entitled "An act to regulate the
carriage of passengers in merchant vessels," approved February
twenty-second, eighteen hundred and forty-seven, shall be so
amended as that a vessel passing into or through the tropics
shall be allowed to carry the same number of passengers as
vessels that do not enter the tropics,
22. By act of January 31, 1848, Minot's Statutes at Large of
United States, p. 210, it is enacted, That, from and after the
passage of this act, all and every vessel and vessels which shall
or may be employed by the American Colonization Society, or by
the Maryland State Colonization Society, to transport, and which
shall actually transport, from any port or ports in the United
States to any colony or colonies on the west coast of Africa,
colored emigrants to reside there, shall be, and the same are
hereby, excepted out of and exempted from the operation of the
act entitled " An act to regulate the carriage of passengers in
merchant vessels," passed twenty-second February, eighteen
hundred and forty-seven; and of the act. entitled " An act to
amend an act entitled 'An act to regulate the carriage of
passengers in merchant vessels, and to determine the time,' when
said act shall take effect,"' passed, second March, eighteen
hundred and forty-seven.
23. No deduction is to be made, in estimating, the number of
passengers in a vessel, for children or persons not paying. Gilp.
R. 334. For his rights and duties, vide Common Carriers.
PASTURES, pastures. The land on which beasts are fed; and by a
grant of pastures the land itself passes. 1 Thorn. Co, Litt. 202.
PATENT, constrction. That which is open or manifest.
2. This word is usually applied to ambiguities which are said
to be latent, or patent.
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3. A patent ambiguity -is one which is produced by the
uncertainty, contradictoriness or deficiency of the language of
an instrument, so that no discovery of facts or proof of
declaration can restore the doubtful or smothered sense without
adding ideas which the actual words will not of themselves
sustain. Bac. Max. 99 T. Raym. R. 411; Roberts on Fr. 15.
4. A latent ambiguity may be explained by parol evidence, but
the rule is, different with regard to a patent abiguity, which
cannot be explained by parol proof. The following instance has
been proposed by the court as a patent ambiguity: " If A B, by
deed, give goods to one of the sons of J S, who has several sons,
he shall not aver which was intended; for by judgment of law
upon this deed, the gift is void for uncertainty, which cannot be
supplied by averment." 8 Co. 155 a. And no difference exists
between a deed and a will upon this subject. 2 Atk. 239.
5. This rule, which allows an explanation of latent
ambiguities, and which forbids the use of parol evidence to
explain a patent ambiguity, is difficult of application. It is
attended, in some instances, with very minute nicety of
discrimination, and becomes a little unsteady in its application.
When a bequest is made " to Jones, son of, Jones," or " to Mrs.
B," it is not easy to show that the ambiguity which this
imperfect designation creates, is not ambiguity arising upon the
face of the will, and as such, an ambiguity patent, yet parol
evidence is admitted to ascertain the persons intended by those
ambiguous terms.
6. The principle upon which parol testimony is admitted in
these cases, is probably, in the first of them, a presumption of
possible ignorance in the testator of the christian name of the
legatee; and in the second, a similar presumption of his being
in the habit of calling the person by the name of Mrs. B.
Presumptions, which being raised upon the face of the will, may
be confirmed and explained by extrinsic evidence. Rob' on. Fr.
15, 27; 2 Vern.
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624, 5; 1 Vern. by Raithby, 31, note 2; 1 Rop. Leg. 147; 3
Stark. Ev. 1000; 3 Bro. C. C. 311 2 Atk. 239; 3 Atk. 257; 3
Ves. Jr. 547. Vide articles Ambiguity; Latent.
PATENT, contracts. A patent for an invention is a giant made by
the government of the United States to the inventor of any new or
useful art, machine, manufacture or composition of matter, or any
new and useful improvement in any art, machine, manufacture or
composition of matter not known or used by others before his or
their discovery or invention thereof, and not, at the time of his
application for a patent, in public use or on sale, with his
consent or allowance, as the inventor or discoverer; securing to
him for a limited time, therein expressed, the full and exclusive
right and liberty of making, constructing, using, a