P2:
PLAT. A map of a piece of land, in which are marked the courses
and distances of the different lines, and the quantity of land it
contains.
2. Such a plat may be given in evidence in ascertaining the
position of the land, and what is included, and may serve to
settle the figure of a survey, and correct mistakes. 5 Monr. 160.
See 17 Mass. 211; 5 Greenl. 219; 7 Greenl, 61; 4 Wheat. 444;
14 Mass. 149.
PLEA, chancery practice. "A plea," says Lord Bacon, speaking of
proceedings in courts of equity, "is a foreign matter to
discharge or stay the suit." Ord. Chan. (ed. Beam.) p. 26. Lord
Redesdale defines it to be " a special answer showing or relying
upon one or more thisgs as a cause why the suit should be either
dismissed, delayed or barred." Mitf. Tr. Ch. 177; see Coop. Eq.
Pl. 223; Beames' Pl. Eq. 1. A plea is a special answer to a
bill, and differs in this from an answer in the common form, as
it demands the judgment of the court in the first instance,
whether the matter urged by it does not debar the plaintiff from
his title to that answer which the bill requires. 2 Sch. & Lef.
721.
2. Pleas are of three sorts: 1. To the jurisdiction of the
court. 2. To the person of the plaintiff. 3. In bar of the
plaintiff's suit. Blake's Ch. Pr. 112. See, generally, Beames'
Elem. of Pleas in Eq.; Mitf. Tr. Cha. oh. 2, s. 2, pt. 2; Coop.
Eq. Pl. ch. 5; 2 Madd. Ch. Pr. 296 to 331; Blake's Ch. Pr. 112
to 114; Bouv. Inst. Index, h. t.
PLEA, practice. The defendant's answer by matter of fact, to
the plaintiff's declaration.
2. It is distinguished from a demurrer, which opposes matter of
law to the declaration. Steph. Pl. 62.
3. Pleas are divided into plea dilatory and peremptory; and
this is the most general division to which they are subject.
4. Subordinate to this is another division; they are either to
the jurisdiction of the court, in suspension of the action; in
abatement of the writ; or, in bar of the action; the first
three of which belong to the dilatory class, the last is of the
peremptory kind. Steph. Pl. 63; 1 Chit. Pl. 425; Lawes, Pl. 36.
5. The law has prescribed and settled the order of pleading,
which the defendant is to pursue, to wit; 1st. To the
jurisdiction of the court. 2d. To the disability, &c. of the
person. 1st. Of thepla'intiff. 2d. Of the defendant. 3d. To the
count or declaration. 4th. To the writ. 1st. To the form of the
writ; first, Matter apparent on the face of it, secondly, Matter
dehors. 2d. To the action of the writ. 5th. To the action itself
in bar.
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6. This is said to be the natural order of pleading, because
each subsequent, plea admits that there is no foundation for the
former. Such is the English law. 1 Ch. Plead. 425. The rule is
different with regard to the plea of jurisdiction in the courts
of the United States and those of Pennsylvania. 1. Binn. 138;
ld. 219; 2 Dall. 368; 3 Dall. 19; 10 S. & R. 229.
7. - 2. Plea, in its ancient sense, means suit or action, and
it is sometimes still used in that sense; for example, A B was
summoned to answer C D of a plea that he render, &c. Steph. Pl.
38, 39, u. 9; Warr. Law Studies, 272, note n.
8. - 3. This variable word, to plead, has still another and
more popular use, importing forensic argument in a cause, but it
is not so employed by the profession. Steph. Pl. App. note 1.
9. There are various sorts of pleas, the principal of which are
given below.
10. Plea in abatement, is when, for any default, the defendant
prays that the writ or plaint do abate, that is, cease against
him for that time. Com. Dig. Abatement, B.
11. Hence it may be observed, 1st. That the defendant may plead
in Abatement for faults apparent on the writ or plaint itself, or
for such as are shown dehors, or out of the writ or plaint. 2d.
That a plea in, abatement is never perpetual, but only a
temporary plea, in form at least, and if the cause revived, the
plaintiff may sue again.
12. If the defendant plead a plea in abatement, in his plea, he
ought generally to give a better writ to the plaintiff, that is,
show him what other and better writ can be adopted; Com. Dig.
Abatement, I 1; but if the plea go to the matter and substance
of the writ, &c., he need not give the plaintiff another writ.
Nor need he do so when the plea avoids the whole cause of the
action. Id. I 2.
13. Pleas in abatement are divided into those relating, first,
to the disability of the plaintiff or defendant; secondly, to
the count or declaration; thirdly, to the writ. 1 Chit. Pl. 435.
14. - 1. Plea in abatement to the person of the plaintiff.
Pleas of this kind are either that the plaintiff is not in
existence, being only a fictitious person, or dead; or else,
that being in existence, he is under some disability to bring or
maintain the action, as by being an alien enemy; Com. Dig.
Abatement, E 4 Bac. Abr. Abatement, B 3; 1 Chit. Pl. 436; or
the plaintiff is a married woman, and she sues alone. See 3 T. R.
631; 6 T. R. 265.
15. Plea in abatement to the person of the defendant. These
pleas are coverture, and, in the English law, infancy, when the
parol shall demur. When a feme covert is sued, and the objection
is merely that the hushand ought to have been sued jointly with
her; as when, since entering into the contract, or committing
the tort, she has married; she must, when sued alone, plead her
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coverture in abatement, and aver that her hushand is living. 3 T.
R. 627; 1 Chit. Pl. 437 , 8.
16. - 2. Plea in abatement to the count. Pleas of this kind are
for some -uncertainty, repugnancy, or want of form, not appearing
on the face of the writ itself, but apparent from the recital of
it in the declaration only; or else for some variance between
the writ and declaration. But it was always necessary to obtain
oyer of the writ before the pleading of these pleas; and since
oyer cannot now be had of the original writ for the purpose of
pleading them, it seems that they can no longer be pleaded. See
Oyer.
17. Plea in abatement to the form of the writ. Such pleas are
for some apparent uncertainty, repugnancy, or want of form,
variance from the record, specialty, &c., mentioned therein, or
misnomer of the plaintiff or defendant. Lawes' Civ. Pl. 106; 1
Chit. Pl. 440.
18. Plea in abatement to the action of the writ. Pleas of this
kind are pleaded when the action is misconceived, or was
prematurely commenced before the cause of action arose; or when
there is another action depending for the same cause. Tidd's Pr.
579. But as these matters are ground for demurrer or nonsuit, it
is now very unusual to plead them in abatement. See 2 Saund. 210,
a.
19. Plea in avoidance, is one which confesses the matters
contained in the declaration, and avoids the effect of them, by
some new matter which shows that the plaintiff is not entitled to
maintain his action. For example, the plea may admit the contract
declared upon, and show that it was void or voidable, because of
the inability of one of the parties to make it, on account of
coverture, infancy, or the like. Lawes, Pl. 122.
20. Plea in bar, is one that denies that the plaintiff has any
cause of action. 1 Ch. Pl. 459 Co. Litt. 303 b; 6 Co. 7. Or it
is one which shows some ground for barring or defeating the
action; and makes prayer to that effect, Steph. Pl. 70;
Britton, 92. See Bar.
21. A plea in bar is, therefore, distinguished from all pleas
of the dilatory class, as impugning the right of the action
altogether, instead of merely tending to divert the proceedings
to another jurisdiction, or suspend them, or abate the particular
writ. It is in short a substantial and conclusive answer to the
action. It follows, from this property, that in general, it must
either deny all, or some essential part of the averments of fact
in the declaration; or, admitting them to be true, allege new
facts, which obviate and repel their legal effect. In the first
case the defendant is said, in the language of pleading, to
traverse the matter of the declaration; in the latter, to
confess and avoid it. Pleas in bar are consequently divided into
pleas by way of traverse, and pleas by way of confession and
avoidance. Steph. Pl. 70, 71.
22. Pleas in bar are, also divided into general or special.
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General pleas in bar deny or take issue either upon the whole or
part of the declaration, or contain some new matter which is
relied upon by the defendant in his defence. Lawes Pl. 110.
23. Special pleas in bar a re very various, according to the
circumstances of the defendant's case; as, in personal actions,
the defendant may plead any special matter in denial, avoidance,
discharge, excuse, or justification of the matter alleged in the
declaration, which destroys or bars the plaintiff's action; or
he may plead any matter which estops, or precludes him from
averring or insisting on any matter relied upon by the plaintiff
in his declaration. The latter sort of pleas are called pleas in
estoppel. In real actions, the tenant may plead any matter which
destroys and bars the demandant's title; as, a general release.
Id. 115, 116.
24. The general qualities of a plea in bar are, 1. That it be
adapted to the nature and form of the action, and also
conformable to the count. Co. Litt. 303, a 285, b; Bac. Abr.
Pleas, I; 1 Roll. Rep. 216.
2. That it answers all it assumes to answer, and no more. Co.
Litt. 303 a; Com. Dig. Pleader, E 1, 36; 1 Saund. 28, n. 1, 2,
3; 2 Bos. & Pull. 427; 3 Bos. & Pull. 174.
3. In the case of a special plea, that it confess and admit the
fact. 3 T. R. 298; 1 Salk. 394; Carth. 380; 1 Saund. 28, n.
and 14 u. 3 10 Johns. R. 289.
4. That it be single. Co. Litt. 304; Bac. Ab. Pleas, 2 Saund.
K, 1, 2; Com Dig. Plead. E 2; 49, 50; Plowd. Com. 140, d.
5. That it be certain. Com. Dig. Pleader, E 5, 7, 8, 9, 10, 11;
C 41; this Dict. Certainty; Pleading.
6. It must be direct, positive, and not argumentative. See 6
Cranch, 126; 9 Johns. It. 313.
7. It must be capable of trial. 8. It must be true and capable
of proof. See Plea, sham.
25. The parts of a plea in bar may be considered with reference
to,
1. The title of the court in which it is pleaded.
2. The title of the term.
3. The names of the parties in the margin. These, however, do
not constitute any part of the plea. The surnames only are
usually inserted, and that of the defendant precedes the
plaintiff's; as, " Roeats. Doe."
4. The commencement which includes the statement of, 1. The
name of the defendant; 2. The appearance; 3. The defence; see
Defence; 4. The actio non; see dctio non.
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5. The body, which may contain, 1. The inducement; 2. The
protestation; 3. Ground of defence 4. Qua est eadem; 5. The
traverse.
6. The conclusion.
26. Dilatory pleas are such as delay the plaintiff's remedy, by
questioning, not the cause of action, but the propriety of the
suit, or the mode in which the remedy is sought.
27. Dilatory pleas are divided by Sir William Blackstone, into
three kinds: 1. Pleas to the jurisdiction of the court; as,
that the cause of action arose out of the limits of the
jurisdiction of the court, when the action is local. 2. Pleas to
the disability of the plaintiff, or, as they are usually termed,
to' the person of the plaintiff; as, that he is an alien enemy.
3. Pleas in abatement of the writ, or count; these are founded
upon some defect or mistake, either in the writ itself; as, that
the defendant is misnamed in it, or the like; or in the mode in
which the count pursues it; as, that there is some variance or
repugnancy between the count and writ; in which case, the fault
in the count furnishes a cause for abating the writ. 2 Bl. Com.
301 Com. Dig. Abatement, G 1, 8; Id. Pleader, C 14, 15; Bac.
Ab. Pleas, F 7.
28. All dilatory pleas are sometimes called pleas in abatement,
as contradistinguished to pleas to the action; this is perhaps
not strictly proper, because, though all pleas in abatement are
dilatory pleas, yet all dilatory pleas are not pleas in
abatement. Gould on Pl. ch. 2, §35; vide 1 Chit. PI, ch. 6;
Bac. Ab. Abatement, 0; 1 Mass 358; 1 John. Cas. 101. 2. A plea
in discharge, as distinguish ed from a plea in avoidance, is one
which admits the demand, and instead of avoiding the payment or
satisfaction of it, shows that it has been discharged by some
matter of fact. Such are pleas of payment, release, and the like.
30. A plea in excuse, is one which admits the demand or
complaint stated in the declaration, but excuses the
non-compliance of the plaintiff's claim, or the commission of the
act of which he complains, on account of the defendant having
done all in his power to satisfy the former, or not having teen
the culpable author of the latter. A plea of tender is an example
of the former, and a plea of son assault demesne, an instance of
the latter.
31. A foreign plea is one which takes the cause out of the
court where it is pleaded, by showing a want of jurisdiction in
that court. 2 Lill. Pr. Beg. 374; Carth. 402. See the form of
the plea in Lill. Ent. 475.
32. A plea of justification is one in which the defendant
professes purpo sely to have done the acts which are the subject
of the plaiutiff's suit, in order to exercise that right which he
considers he might in point of law exercise, and in the exercise
of which he conceives himself not merely excused, but justified.
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33. A plea puis darrein continuance. Under the ancient law,
there were continuances, i. e. adjournments of the proceedings
for certain purposes, from one day or one term to another; and,
in such cases, there was an entry made on the record, expressing
the ground of the adjournment, and appointing the parties to
reappear at a given day.
34. In the interval between such continuance and the day
appointed, the parties were of course out of court, and
consequently not in a situation to plead. But it sometimes
happened, that after a plea had been pleaded, and while the
parties were out of court, in consequence of such continuance, a
new matter of defence arose, which did not exist, and which the
defendant had consequently no opportunity to plead, before the
last continuance. This new defence he was therefore entitled, at
the day given for his reappearance, to plead as a matter that had
happened after the last continuance, puis darrein continuance. In
the same cases that occasioned a continuance in the ancient
common Iaw, but in no other, a continuance shall take place. At
the time indeed, when the pleadings are filed and delivered, no
record exists, and there is, therefore, no entry at that time,
made on the record, of the award of a continuance; but the
parties are, from the day when, by the ancient practice, a
continuance would have been entered, supposed to be out of court,
and the pleading is suspended, till the day arrives to which, by
the ancient, practice, the continuance would extend. At that day,
the defendant is entitled, if any new matter of defence has
arisen in the interval, to plead it according to the ancient
plan, puis darrein continuance.
35. A plea puis darrein continuance is not a departure from,
but is a waiver of the first plea, and is always headed by way of
substitution for it, on which no proceeding is afterwards had. 1
Salk. 178; 2 Stran. 1195 Hob. 81; 4 Serg. & Rawle, 239. Great
certainty is requisite in pleas of this description. Doct. Pl.
297; Yelv. 141; Cro. Jac. 261; Freem. 112; 2 Lutw. 1143; 2
Salk. 519; 2 Wils. 139; Co. Entr. 517 b. It is not sufficient
to say generally that after the last continuance such a thing
happened, but the day of the continuance must be shown, and also
the time and place must be alleged where the matter of defence
arose. Id. ibid.; Bull. N. P. 309.
36. Pleas puis darrein continuance are either in bar or
abatement; Com. Dig. Abatement, I 24; and are followed, like
other pleas, by a replication and other pleadings, till issue is
attained upon them such pleas must be verified on oath before
they are allowed. 2 Smith's R. 396; Freem. 352; 1 Strange, 493.
37. A sham plea is one which is known to the pleader to be
false, and is entered for the purpose of delay. There are certain
pleas of this kind, which, in consequence of their having been
long and frequently used in practice, have obtained toleration
from the courts; and, though discouraged, are tacitly allowed;
as, for example, the common plea of judgment recovered, that is,
that judgment has been already recovered by the plaintiff, for
the same cause of action. Steph. on Pleading, 444, 445; 1 Chit.
Pl. 505, 506.
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38. Plea in suspension of the action. Such a plea is one which
shows some ground for not proceeding in the suit at the present
period, and prays that the pleading may be stayed, until that
ground be removed. The number of these pleas is small. Among them
is that which is founded on the nonage of the parties, and termed
parol demurrer. Stephen on Pleading, 64. See, generally, Bac.
Abr. Pleas, Q; Com. Dig. Abatement, I 24, 34; Doct, Pl. 297;
Bull. N. P. 309; Lawes Civ. Pl. 173; 1 Chit. Pl. 634,; Steph.
Pl. 81; Bouv. Inst. Index, h. t.
TO PLEAD. The formal entry of the defendant's defence on the
record. In a popular sense, it signifies the argument in a cause,
but it is not so used by the profession. Steph. Pl. Appex. note
I; Story, Eq. Pl. §5, note.
PLEADING, practice. The statement in a logical, and legal form,
of the facts which constitute the plaintiff's cause of action, or
the defendant's ground of defence; it is the formal mode of
alleging that on the record, which would be the support, or the
defence of the party in evidence. 8 T. R. 159; Dougl. 278; Com.
Dig. Pleader, A; Bac. Abr. Pleas and Pleading; Cowp. 682-3. Or
in the language of Lord Coke, good pleading consists in good
matter pleaded in good form, in apt time, and due order. Co. Lit.
303. In a general sense, it is that which either party to a suit
at law alleges for himself in a court, with respect to the
subject-matter of the cause, and the mode in which it is carried
on, including the demand which is made by the plaintiff; but in
strictness, it is no more than setting forth those facts or
arguments which show the justice or legal sufficiency of the
plaintiff's demand, and the defendant's defence, without
including the statement of the demand itself, which is contained
in the declaration or count. Bac. Abr. Pleas and Pleading.
2. The science of pleading was designed only to render the
facts of each party's case plain and intelligible, and to bring
the matter in dispute between them to judgment. Steph. Pl. 1. It
is, as has been well observed, admirably calculated for analyzing
a cause, and extracting, like the roots of an equation, the true
points in dispute; and referring them with all imaginable
simplicity, to the court and jury. 1 Hale's C. L. 301, n
3. The parts of pleading have been considered as arrangeable
under two heads; first, the regular, or those which occur, in
the ordinary course of a suit; and secondly, the irregular, or
collateral, being those which are occasioned by mistakes in the
pleadings on either side.
4. The regular parts are, 1st. The declaration or count. 2d.
The plea, which is either to the jurisdiction of the court, or
suspending the action, a's in the case of a parol demurrer, or in
abatement, or in bar of the action, or in replevin, an avowry or
cognizance. 3d . The replication, and, in case of an evasive
plea, a new assignment, or in replevin the plea in bar to the
avowry or cognizance. 4th. The rejoinder, or, in replevin, the
replication to the plea in bar. 5th. The sur-rejoinder, being in
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replevin, the rejoinder. 6th. The rebutter. 7th. The
sur-rebutter. Vin. Abr. Pleas and Pleading, C; Bac. Abr. Pleas
and Pleadings, A. 8th. Pleas puis darrein continuance, when the
matter of defence arises pending the suit.
6. The irregular or collateral parts of Pleading are stated to
be, 1st. Demurrers to Illly art of the pleadings above mentioned.
2dly. Demurrers to evidence given at trials. 3dly. Bills of
exceptions. 4thly. Pleas in scire facias. And, 5thly. Pleas in
error. Vin. Abr. Pleas and Pleadings, C.; Bouv. Inst. Index, h.
t.
PLEADING, SPECIAL. By special pleading is meant the allegation
of special or new matter, as distinguished from a direct denial
of matter previously alleged on the opposite side. Gould on Pl.
c. 1, s. 18.
PLEAS OF THE CROWN, Eng. law. This phrase is now employed to
signify criminal causes in which the king is a party. Formerly it
signified royal causes for offences of a greater magnitude than
mere misdemeanors. These were left to be tried in the courts of
the barons, whereas the greater offences, or royal causes, were
to be tried in the king's courts, under the appellation of pleas
of the crown. Robertson's Hist. of Charles V., vol. 1, p. 48.
PLEAS POLL, Engl. practice. A record which contains the
declaration, plea, replication, rejoinder, and other pleadings,
and the issue. Eunom. Dial. 2, §29, p. 111.
PLEBEIAN. One who is classed among the common people, as
distinguished fromthe nobles. Happily in this country the order
of nobles does not exist.
PLEBEIANS. One of the divisions of the people in ancient Rome;
that class which was composed of those who were not nobles nor
slaves. Vide Smith's Dic. Gr. & Rom. Antiq. art. Plebes.
PLEBISCIT, civil law. This is an anglicised word from the Latin
plebiscitum, which is composed or derived from plebs and scire,
and signifies, to establish or ordain.
2. A plebiscit was a law which the people, separated from the
senators and the patricians, made on the requisition of one of
their magistrates, that is, a tribune. Inst. 1, 2, 4.
PLEDGE or PAWN, contracts. These words seem indifferently used
to convey the same idea. Story on Bailm. §286.
2. In the civil code of Louisiana, however, they appear not to
have exactly the same meaning. It is there said that pledges are
of two kinds, namely, the pawn, and the antichresis. Louis'.
Code, art. 3101.
3. Sir William Jones defines a pledge to be a bailment of goods
by a debtor to his creditor, to be kept till the debt is
discharged. Jones' Bailm. 117; Id. 36. Chancellor Kent, 2 Kent's
Com. 449, follows the same definition, and see 1 Dane's Abr. c.
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17, art. 4. Pothier, De Nantissement, art. prelim. 1, defines it
to be a contract by which a debtor gives to his creditor a thing
to detain as security for his debt. The code Napoleon has adopted
this definition, Code Civ. art. 2071, and the Civil Code of
Louisiana has followed it. Louis. Code, 3100. Lord Holt's
definition is, when goods or chattels are delivered to another as
a pawn, to be security for money borrowed of him by the bailor -
and this, he adds, is called in Latin vadium, and in English, a
pawn or pledge. Ld. Raym. 909, 913.
4. The foregoing definitions are sufficiently descriptive of
the nature of a pawn or pledge but they are in terms limited to
cues where a thing is given as a security for a debt; but a pawn
may well be made as security for any other engagement. 2 Bulst.
306; Pothier, De Nantissement, n. 11. The definition of Domat
is, therefore, more accurate, because it is more comprehensive,
namely, that it is an appropriation of the thing given for the
security of an engagement. Domat, B. 3, tit. 1, §1, n. 1. And,
according to Judge Story, it may be defined to be a bailment of
personal property, as security for some debt or engagement. Story
on Bailm. §286.
5. The term pledge or pawn is confined to personal property;
and where real or personal property is transferred by a
conveyance of the title, as a security, it is commonly
denominated a mortgage.
6. A mortgage of goods is, in the common law, distinguishable
from a mere pawn. By a grant or a conveyance of goods in gage or
mortgage, the whole legal title passes conditionally to the
mortgagee; and if not redeemed at the time stipulated, the title
becomes absolute at law, though equity will interfere to compel a
redemption. But in a pledge a special property only passes to the
pledges, the general property remaining in the pledger. 1 Atk.
167; 6 East, 25; 2 Caines' C. Err. 200; 1 Pick. 889; 1 Pet.
S. C. B. 449 2 Pick. R. 610; 5 Pick. R. 60; 8. Pick. R. 236; 9
Greenl. R. 82; 2 N. H. Rep. 13; 5 N. H. Rep. 545; 5 John. R.
258; 8 John. R. 97; 10 John. R. 471; 2 Hall, R. 63; 6 Mass.
R. 425; 15 Mass. R. 480. A mortgage may be without possession,
but a pledge cannot be without possession. 5 Pick. 59, 60; and
see 2 Pick. 607.
7. Things which are the subject of pledge or pawn are
ordinarily goods and chattels; but money, negotiable
instruments, choses in action, and indeed any other valuable
thing of a personal nature, such as patent-rights and
manuscripts, may, by the common law, be delivered in pledge. 10
Johns. R. 471, 475; 12 Johns. R. 146; 10 Jonhs. R. 389; 2
Blackf. R. 198; 7 Greenl. R. 28; 2 Taunt. R. 268; 13 Mass.
105; 15 Mass. 389; Id. 534; 2 Caines' C. Err. 200; 1 Dane's
Abr. ch. 17, art. 4, § ii. See Louis. Code, art. 3121.
8. It is of the essence of the contract, that there should be
an actual delivery of the thing. 6 Mass. 422; 15 Mass. 477 14
Mass. 352; 2 Caines' C. Err. 200; 2 Kent's Com. 452; Bac. Abr.
Bailment, B; 2 Rolle R. 439; 6 Pick. R. 59, 60; Pothier, De
Nantissement, n. 8, 9; Louis. Code, 3129. What will amount to a
delivery, is matter of law. See Delivery.
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9. It is essential that the thing should be delivered as a
security for some debt or engagement. Story on Bailm. §300. And
see 3 Cranch, 73; 7 Cranch, 34; 2 John. Ch. R. 309; 1 Atk.
236; Prec. in Ch. 419; 2 Vern. 691; Gilb. Eq. R. 104; 6 Mass.
339; Pothier, Nantissement, n. 12; Civ. Code of Lo. art. 3119;
Code Civ. art. 2076.
10. In virtue of the pawn the pawnee acquires, by the common
law, a special property in the thing, and is entitied to the
possession of it exclusively, during the time and for the objects
for which it is pledged. 2 Bl. Com. 396; Jones' Bailm. 80; Owen
R. 123, 124; 1 Bulst. 29; Yelv. 178 Cro. Jac. 244; 2 Ld. Raym.
909, 916; Bac. Abr. Bailment, B; 1 Dane's Abr. ch. 17, art. 4,
SSSS 1, 6; Code Civ. art. 2082; Civ. Code of Lo. art. 3131. And
he has a right to sell the pledge, when there has been a default
in the pledger in complying with his engagement. Such a default
does not divest the general property of the pawner, but still
leaves him a right of redemption. But if the, pledge is not
redeemed within the stipulated time, by a due performance of the
contract for which it is a security, the pawnee has then a right
to sell it, in order to have his debt or indemnity. And if there
is no stipulated time for the payment of the debt, but the pledge
is for an indefinite period, the pawnee has a right, upon
request, to a prompt fulfilment of the agreement; and if the
pawner refuses to comply, the pawnee may, upon demand and notice
to the pawner, require the pawn to be sold. 2 Kent's Com. 452;
Story on Bailm. 308.
11. The pawnee is bound to use ordinary diligence in keeping
the pawn, and consequently is liable for ordinary neglect in
keeping it. Jones'-Bailm. 75; 2 Kent's Com. 451; 1 Dane's Abr.
ch. 17, art. 12; 2 Ld. Raym, 909, 916; Domat B 1, tit. 1, §4,
n. 1.
12. The pawner has the right of redemption. If the pledge is
conveyed by way of mortgage, and thus passes the legal title,
unless he redeems the pledge at a stipulated time, the title of
the pledge becomes absolute at law; and the pledger has no
remedy at law, but only a remedy in equity to redeem. 2 Ves. Jr.
378; 2 Caines' C. Err. 200. If, however, the transaction is not
a transfer of ownership, but a mere pledge, as the pledger has
never parted with the general title, he may, at law, redeem,
notwithstanding he has not strictly complied with the condition
of his contract. Com. Dig. Mortgage, B; 1 Pow. on Mortg. by
Coventry & Land. 401, and notes, ibid. See further, as to the
pawner's right of redemption, Story on Bailm. §§345 to 349.
13. By the act of pawning, the pawner enters into an implied
agreement or warranty that he is the owner of the property
pawned, and that he has a good right to pass the title. Story on
Bailm. §354.
14. As to the manner of extinguishing the contract of pledge or
mortgage of personal property, see Story on Bailm. 359 to 366.
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PLEDGE, contracts. He who becomes security for another, and, in
this sense, every one who becomes bail for another is a pledge. 4
Inst. 180 Com. Dig. B. See Pledges.
PLEDGER. The same as pawner. (q. v.)
PLEDGEE. The same as pawnee. (q. v.)
PLEDGES, pleading. It was anciently necessary to find pledges or
sureties to prosecute a suit, and the names of the pledges were
added at the foot of the declaration; but in the course of time
it became unnecessary to find such pledges because the plaintiff
was no longer liable to be amerced, pro falsa clamora, and the
pledges were merely nominal persons, and now John Doe and Richard
Roe are the universal pledges; but they may be omitted
altogether; 1 Tidd's. Pr. 455; Arch. Civ. Pl. 171; or inserted
at any time before judgment. 4 John. 190.
PLEGIIS ACQUIETANDIS, WRIT DE. The name of an ancient writ in
the English law, which lies where a man becomes pledge or surety
for another to pay
a certain sum of money at a certain day; after the day, if the
debtor does not pay the debt, and the. surety be compelled to
pay, he shall have this writ to compel the debtor to pay the
same. F. N. B. 321.
PLENA PROBATIO. A term used in the civil law, to signify full
proof, in contradistinction to semi-plena probatio, which is only
a presumption. Code, 4, 19, 5, &c. 1 Greenl. Ev. §119.
PLENARTY, eccl. law. Signifies that a benefice is full. Vide
Avoidance.
PLENARY. Full, complete.
2. In the courts of admiralty, and in the English
ecclesiastical courts, causes or suits in respect of the
different course of proceeding in each, are termed plenary or
summary. Plenary, or full and formal suits, are those in which
the proceedings must be full and formal: the term summary is
applied to those causes where the proceedings are more succinct
and less formal. Law's Oughton, 41; 2 Chit. Pr. 481.
PLENE ADMINISTRAVIT, pleading.
A plea in bar entered by an executor or administrator by which
he affirms that he had not in his possession at the time of the
commencement of the suit, nor has had at any time since any goods
of the deceased to be administered; when the plaintiff replies
that the defendant had goods, &c., in his possession at that
time, and the parties join issue, the burden of the proof will be
on the plaintiff. Vide 15 John. R. 323; 6 T. R. 10; 1 Barn. &
Ald. 254; 11 Vin. Ab. 349; 12 Vin. Ab. 185; 2 Phil. Ev. 295;
3 Saund. (a) 315, n. 1; 6 Com. Dig. 311.
PLENE ADMINISTRAVIT PRAETER. This is the usual plea of plene
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administravit, except that the defendant admits a certain amount
of assets in his hands.
PLENE COMPUTAVIT, pleading. A plea in an action of account
render, by which the defendant avers that he has fully accounted.
Bac. Ab. Accompt, E. This plea does not admit the liability of
the defendant to account. 15 S. & R. 153.
PLENIPOTENTIARY. Possessing full powers; as, a minister
plenipotentiary, is one authorized fully to settle the matters
connected with his mission, subject however to the ratification
of the government by which he is authorized. Vide Minister.
PLENUM DOMINIUM. The unlimited right which the owner has to use
his property as he deems proper, without accountability to any
one.
PLOUGH-BOTE. An allowance made to a rural tenant, of wood
sufficient for ploughs, harrows, carts, and other instruments of
hushandry.
PLOUGH-LAND, old Eng. law. An uncertain quantity of land; but,
according to some opinions, it contains one hundred and twenty
acres. Co. Litt. 69 a.
TO PLUNDER. The capture of personal property on land by a
public enemy, with a view of making it his own. The property so
captured is called plunder. See Booty; Piize.
PLUNDERAGE, mar. law. The embezzlement of goods on board of a
ship, is known by the name of plunderage.
2. The rule of the maritime law in such cases is, that the
whole crew shall be responsible for the property thus embezzled,
because there must be some negligence in finding out the
depredator. Abbott on Ship. 457; 3 John. Rep. 17; 1 Pet. Adm.
Dee. 243; 1 New Rep. 347; 1 Pet. Adm. Dee. 200, 239.
PLURAL. A term used in grammar, which signifies more than one.
2. Sometimes, however, it may be so expressed that it means
only one, as, if a man were to devise to another all he was
worth, if he, the testator, died without children, and he died
leaving one child, the devise would not take effect. See Dig. 50,
16, 148; Id. 35, 1, 101, 1; Id. 3 1, 17, 4 Code, 6, 49, 6, 2;
Shelf. on L 559, 589. See Singular.
PLURALITY, government. The greater number of votes given at an
election; it is distinguished from a majority, (q. v.) which is
a plurality of all the votes which might have been given; though
in common parlance majority is used in the sense here given to
plurality.
PLURIES, practice. A term by which a writ issued subsequently
to an alias of the same kind, is denominated.
2. The pluries writ is made by adding after we command you, the
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words, " as often times we have commanded you." This is called
the first pluries, the next is called the second pluries, &c.
POINDING, Scotch. law. That diligence, affecting movable
subjects, by which their property is carried directly to, the
creditor. Poinding is real or personal. Ersk. Pr. L. Scot. 3, 6,
11.
POINDING, PERSONAL, Scotch law. Poinding of the goods belonging
to the debtor; and of those goods only.
2. It may have for its warrant either letters of horning,
containing a clause for poinding, and then it is executed by
messengers; or precepts of poinding, granted by sheriffs,
commissaries, &c., which are executed by their proper officers.
No cattle pertaining to the plough, nor instruments of tillage,
can be poinded in the time of laboring or tilling the ground,
unless where the debtor, has no other goods that may be poinded.
Ersk. Pr. L. Soot. 3, 6, 11. See Distress, to which this process
is somewhat similar.
POINDING, REAL, or poinding of the ground, Scotch law. Though
it be properly a diligence, this is generally considered by
lawyers as a species of real action, and is so called to
distinguish it from personal poinding, which is founded merely on
an obligation to pay.
2. Every debitum fundi, whether legal or conventional, is a
foundation for this action. It is therefore competent to all
creditors in debts which make a real burden on lands. As it
proceeds on a, real right, it may be directed against all goods
that can be found on the lands burdened but, 1. Goods brought
upon the ground by strangers are not subject to this diligence.
2. Even the goods of a tenant cannot be poinded for more than his
term's rent, Ersk. Pr. L. Scot. 4, 1, 3.
POINT, practice. A proposition or question arising in a case.
2. It is the duty of a judge to give an opinion on every point
of law, properly arising out of the issue, which is propounded to
him. Vide Resolution.
POINT RESERVED. A point or question of law which the court, not
being fully satisfied how to decide, in the hurried trial of a
cause, rules in favor of the party offering it, but subject to
revision on a motion for a new trial. If, after argument, it be
found to have been ruled correctly, the verdict is supported; if
otherwise, it is set aside .
POINTS, construction. Marks in writing and in print, to denote
the stops that ought to be made in reading, and to point out the
sense.
2. Points are not usually put in legislative acts or in deeds:
Eunom. Dial. 2, §33, p. 239; yet, in construing them, the courts
must read them with such stops as will give effect to the whole.
4 T. R. 65.
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3. The points are the comma, the semi-colon, the colon, the
full point, the point of interrogation and exclamation. Barr. on
the Stat. 294, note; vide Punctuation.
POISON, crim. law. Those substances which, when applied to the
organs of the body, are capable of altering or destroying, in a
majority of cases, some or all of the functions necessary to
life, are called poisons. 3 Fodere, Traite de Med. Leg. 449;
Guy, Med. Jur. 520.
2. When administered with a felonious intent of committing ,
murder, if. death ensues, it is murder the most detestable,
because it can of all others, be least prevented by manhood or
forethought. It is a deliberate act necessarily implying malice.
1 Russ. Cr. 429. For the signs which indicate poisoning, vide 2
Beck's Med. Jurisp. ch. 16, p. 236, et seq.; Cooper's Med.
Jurisp. 47; Ryan's Med. Jurisp. ch. 15, p. 202, et seq.;
Traill, Med. Jur. 109.
POLE. A measure of length, equal to five yards and a half. Vide
Measure.
POLICE. That species of superintendence by magistrates which
has principally for its object the maintenance of public
tranquillity among the citizens. The officers who are appointed
for this purpose are also called the police.
2. The word police has three significations, namely; 1. The
first relates to the measures which are adopted to keep order,
the, laws aud ordinances on cleanliness, health, the markets, &c.
2. The second has for its object to procure to the authorities
the means of detecting even the smallest attempts to commit
crime, in order that the guilty may be arrested before their
plans are carried into execution, and delivered over to the
justice of the country. 3. The third comprehends the laws,
ordinances and other measures which require the citizens to
exercise their rights in a particular form.
3. Police has also been divided into administrative police,
which has for its object to maintain constantly public order in
every part of the general administration; and into judiciary
police, which is intended principally to prevent crimes by
punishing the crim inals. Its object is to punish crimes which
the administrative police has not been able to prevent.
POLICE JURY. In Louisiana this name is given. to certain
officers who collectively exercise jurisdiction in certain cases
of police as levying taxes, regulating roads,
POLICY OF INSURANCE, contracts. An instrument in writing by
which the contract of insurance is effected and reduced into
form.
2. The term policy of insurance, or as surance, as it is
sometimes called, is derived from the Italian di olizza di
assecurazione, or di securanza, or securta; and in that language
signifies a tote or bill of security or indemnity.
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3. The policy is always considered as being made upon an
executed consideration, namely, the payment or security for the
payment of the premium, and contains only the promise of the
underwriters, without anything in nature of a counter promise on
the part of the insured. The policy may be effected by the owner
of the property insured, his broker or agent.
4. As to its form, the policy has been considered in courts of
law as an absurd and incoherent instrument; 4 T. R. 210; but
courts of justice have always construed it according to the
intention of the parties, and so that the indemnity of the
insured, dud the advancement of trade, which are ,the great
objects of insurance, may be attained. It should contain, 1. The
names of the parties. 2. The name of the vessel insured, in order
to identify it; but to prevent the ill consequence that might
result from a mistake in the name of the vessel or master, there
are usually inserted in policies these words, " or by whatsoever
name or names the same ship or the master thereof is, or shall
be, named or called." 3. A Specification of the subject-matter,
of the insurance, whether it be goods, ship, freight,
respondentia or bottomry securities, or other things. Marsh. Ins.
315; 3 Mass. Rep. 476. 4. A description of the voyage, with the
commencement and end of the risk. 5. A statement of the perils
insured against. 6. A power in the insured to save goods in case
of misfortune, without violating the policy. 7. The promise of
the insurers, and an acknowledgment of their receipt of the
premium. 8. The common memorandum. 9. The date and subscription.
5. Policies, with reference to the reality of the interest
insured, are distinguished into interest and wager policies;
with reference to the amount of interest, into open and valued.
6. An interest policy, is where the insured has a real,
substantial, assignable interest in the thing insured; in which
case only it is a contract of indemnity.
7. A wager policy, is a pretended insurance, founded on an
ideal risk, where the insured has no interest in the thing
insured, and can therefore sustain no loss, by the happening of
any of the misfortunes insured against. These policies are
strongly reprobated. 3 Kent, Com. 225.
8. An open policy, is where the amount of the interest of the
insured is not fixed by the policy; but is left to be
ascertained by the insured in case a loss shall happen.
9. A valued policy, is where a value has been set on the ship.
or goods insured, and this value inserted in the policy in the
nature of liquidated damages, to save the necessity of proving it
in case of loss. Marsh. Ins. 287; and see Kent, Com. Lecture 48;
Marsh. Ins. ch. 8; 16 Vin. Ab. 402; 1 Supp. to Ves. jr. 305;
Park. Ins. 1, 14; Westcott, Ins. 400; Pardes. h. t.; Poth. h.
t.; Boulay Paty, h. t.; Bouv. Inst. Index, h. t.
POLICY, PUBLIC. By public policy is meant that which the law
encourages for the promotion of the public good.
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2. That which is against public policy is generally unlawful.
For example, to restrain an individual from marrying, or from
engaging in business, when the restraint is general, in the first
case, to all persons, and, in the second, to all trades,
business, or occupations. But if the restraint be only partial,
as that Titius shall not marry Moevia, or that Caius shall not
engage in a particular trade in a particular town or, place, the
restraint is not against public policy,, and therefore valid. 1
Story, Eq. Jur. §274. See Newl. Contr. 472.
POLITICAL. Pertaining to policy, or the administration of the
government. Political rights are those which may be exercised in
the formation or administration of the government they are
distinguished from civil, rights, which are the rights which a
man enjoys, as regards other individuals, and not in relation to
the government. A political corporation is one which has
principally for its object the administration of the government,
or to which the powers of government, or a part of such powers,
have been delegated. 1 Bouv. Inst. n. 182, 197, 198.
POLL. A head. Hence poll tax is the name of a tax imposed upon
the people at so much a head. 2. To poll a jury is to require
that each juror shall himself declare what is his verdict. This
may be done at the instance of either party, at any time before
the verdict is recorded. 3 Cowen, R. 23. See 18 John. R. 188. See
Deed Poll.
POLLICITATION, civil law. A pollicitation is a promise not yet
accepted by the person to whom it is made; it differs from a
contract inasmuch as the latter includes a concurrence of
intention in two parties, one of whom promises something to the
other, who accepts on his part of such promise. L. 3, ff.
Pollicit.; Grotius, lib. 2, c. 2; Poth. on Oblig. P. 1, c. 1,
s. 1, art. 1,§2.
2. An offer to guaranty, but not accepted, is not a contract on
which an action will lie. 1 Stark. C. 10; 1 M. & S. 557; 3 B. &
C. 668, 690; 5 D. & R. 512, 586; 7 Cranch, 69; 17 John. R.
134; 1 Mason's R. 323, 371; 16 John. R. 67; 3 Conn. R. 438; 1
Pick. R. 282, 3; 1 B. & A. 681.
POLLS. The place where electors cast in their votes.
POLYANDRY. The state of a woman who has several hushands.
2. Polyandry is legalized only in Tibet. This is inconsistent
with the law of nature. Vide Law of Nature.
POLYGARCHY. A term used to express a government which is shared
by several persons; as, when two brothers succeed to the throne,
and reign jointly.
POLYGAMY, crim. law. The act of a person who, knowing he has
two or more wives, or she has two or more hushands living,
marries another. It differs from bigamy. (q. v.) Com. Dig.
Justices, S 5, Dict. de Jur. h. t.
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POND. A body of stagnant water; a pool.
2. Any one has a right to erect a fish pond; the fish in ii
are considered as real estate, and pass to the heir and not to
the executor. Ow. 20. See Pool; River; Water.
PONE, English practice. An original writ issuing out of
chancery, for the purpose of removing a plaint from an inferior
court into the superior courts at Westminster. The word signifies
"put;" put by gages, &c. The writ is called from the words it
contained when in Latin, "Pone per vadium et salvos plegios," &c.
Put by gage and safe pledges, &c. See F. N. B. 69, 70 a;
Wilkinson on Replevin, Index.
PONTAGE. A contribution towards the maintenance, rebuilding or
repairs of a bridge. The toll taken for this purpose also bears
this name. Obsolete.
POOL. A small lake of standing water.
2. By the grant of a pool, it is said, both the land and water
will pass. Co. Litt. 5. Vide Stagnum; Water. Undoubtedly the
right to fish, and probably the right to use hydraulic works,
will be acquired by such grant. 2 N. Hamps. Rep. 259; An on Wat.
Courses, 47; Plowd. 161; Vaugh. 103; Bac. Ab. Grants, H 3;
Com. Dig. Grant, E 5; 5 Cowen, 216; Cro. Jac. 150; 1 Lev. 44;
Co. Litt. 5.
POPE. The chief of the catholic religion is so called. He is a
temporal prince. He is elected by certain officers called
cardinals, and remains in power during life. In the 9th Collation
of the Authentics it is declared the bishop of Rome hath the
first place of sitting in all assemblies, and the bishop of
Constantinople the second. Ridley's View, part 1, chap. 3, sect.
10.
2. The pope has no political authority in the United States.
POPE'S FOLLY. The name of a small island, situated in the bay
of Passama quoddy, which, it has been decided, is within the
jurisdiction of the United States. 1 Ware's R. 26.
POPULAR ACTION, punishment. An action given by statute to any
one who will sue for the penalty. A qui tam action. Dig. 47, 23,
1.
PORT. A place to which the officers of the customs are
appropriated, and which include the privileges and guidance of
all members and creeks which are allotted to them. 1 Chit. Com.
Law, 726; Postlewaith's Com. Dict. h. t.; 1 Chit. Com. L.
Index, h. t. According to Dalloz, a port is a place within land,
protected against the waves and winds, and affording to vessels a
place of safety. Diet. Supp. h. t. By the Roman law a port is
defined to be locus, conclusus, quo importantur merces, et unde
exportantur. Dig. 50,16, 59. See 7 N. S. 81. 2. A port differs
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from a haven, (q. v.) and includes something more. 1st. It is a
place at which vessels may arrive and discharge, or take in their
cargoes. 2. It comprehends a vale, city or borough, called in
Latin caput corpus, for the reception of mariners and merchants,
for securing the goods, and bringing them to market, and for
victualling the ships. 3. It is impressed with its legal
character by the civil authority. Hale de Portibus Mar. c. 2; 1
Harg. 46, 73; Bac. Ab. Prerogative, D 5; Com. Dig. Navigation,
E; 4 Inst. 148; Callis on Sewers, 56; 2 Chit. Com. Law, 2;
Dig. 60, 16, 59; Id. 43, 12, 1, 13; Id. 47, 10, 15, 7; Id. 39,
4, 15.
PORT-REEVE, Eng. law. In some places in England an officer
bearing this name is the chief magistrate of a port-town. Jacob's
Dict. h. t.
PORT TOLL, Mer. law., By this phrase is understood the money
paid for the privilege of bringing goods into a port.
PORTATICA, Engl. law. The generic name for port duties charged
to ships. Harg. L. Tr. 74.
PORTER. The name of an ancient English officer who bore or
carried a rod before the justices. The door-keeper of the English
parliament also bears this name.
2. One who is employed as a common carrier to carry goods from
one place to another in the same town, is also called a porter.
Such person is in general answerable as a common carrier. Story,
Bailm. §496.
PORTION. That part of a parent's estate, or the estate of one
standing in loco parentis, which is given to a child. 1 Vern.
204. Vide 8 Com. Dig. 539; 16 Vin. Ab. 4321; 1 Supp. to Ves.
Jr. 34, 58, 303, 308; 2 Id. 46, 370, 404.
PORTORIA, civil law. Duties paid in ports on merchandise. Code,
4, 61, 3.
PORTSALES. Auctions were anciently so called, because they took
place in ports.
POSITIVE. Express; absolute; not doubtful. This word is
frequently used in composition.
2. A positive condition is where the thing which is the subject
of it must happen; as, if I marry. It is opposed to a negative
condition, which is where the thing which is the subject of it
must not happen; as, if I do not marry.
3. A positive fraud is the intentional and successful
employment of any cunning, deception or artifice, to circumvent,
cheat, or deceive another. 1 Story, Eq. §186; Dig. 4, 3, 1, 2;
Dig. 2, 14, 7, 9. It is cited in opposition to constructive
fraud. (q. v.)
4. Positive evidence is that which, if believed, establishes
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the truth or falsehood of a fact in issue, and does not arise
from any presumption. It is distinguished from circumstantial
evidence. 3 Bouv. Inst. n. 3057.
POSSE. This word is used substantively to signify a
possibility. For example, such a thing is in posse, that is, such
a thing may possibly be; when the thing is in being, the phrase
to express it is, in esse. (q. v.)
POSSE COMITATUS. These Latin words signify the power of the
county.
2. The sheriff has authority by the common law, while acting
under the authority of the writ of the United States,
commonwealth or people, as the case may be, and for the purpose
of preserving the public peace, to call to his aid the posse
comitatus.
3. But with respect to writs which issue, in the first
instance, to arrest in civil suits, the sheriff is not bound to
take the posse comitatus to assist him in the execution of them:
though he may, if he pleases, on forcible resistance to the
execution of the process. 2 Inst. 193; 3 Inst. 161.
4. Having the authority to call in the assistance of all, it
seems to follow, that he may equally require that of any
individual; but to this general rule there are some exceptions;
persons of infirm health, or who want understanding, minors under
the age of fifteen years, women, and perhaps some others, it
seems, cannot be required to assist the sheriff, and are
therefore not considered as a part of the power of the county.
Vin. Ab. Sheriff, B.
5. A refusal on the part of an individual lawfully called upon
to -assist the officer in putting down a riot is indictable. 1
Carr. & Marsh. 314. In this case will be found the form of an
indictment for this offence.
6. Although the sheriff is acting without authority, yet it
would seem that any person who obeys his command, unless aware of
that fact, will be protected.
7. Whether an individual not enjoined by the sheriff to lend
his aid, would be protected in his interference, seems
questionable. In a case where the defendant assisted sheriff's
officers in executing a writ of replevin without their
solicitation, the court held him justified in so doing. 2 Mod.
244. Vide Bac. Ab. Sheriff, N; Hamm. N. P. 63; 5 Whart. R. 437,
440.
POSSESSED. This word is applied to the right and enjoyment of a
termor or a person having a term, who is said to be possessed,
and not seized. Bac. Tr. 335; Poph. 76; Dy. 369.
POSSESSIO FRATRIS. The brother's possession. This is a
technical phrase which is applied in the English law relating to
descents. By the common law, the ancestor from whom the
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inheritance was taken by descent, must have had actual seisin of
the lands, either by his own entry, or by the possession of his
own, or his ancestor's lessee for years, or by being in the
receipt of rent from the lessee of the freehold. But there are
qualifications as to this rule, one of which arises from the
doctrine of possesio fratris. The possession of a tenant for
years, guardian or brother, is equivalent to that of the party
himself, and is termed in law possessio fratris. Litt. sect. 8
Co. Litt. 15 a; 3 Wils. 516 7 T. R. 386 2 Hill Ab. 206.
2. In Connecticut, Delaware, Georgia, Massachusetts, New
Jersey, New York, Ohio, Pennsylvania, Rhode Island, South
Carolina, Virginia, and probably in other states, the real and
personal estates of intestates are distributed among the heirs,
without any reference or regard to the actual seisin of the
ancestor. Reeve on Des. 377 to 379; 4 Mason's R. 467; 3 Day's
R. 166; 2 Pet. R. 59. In Maryland, New Hampshire, North
Carolina, and Vermont, the doctrine of possessio fratris, it
seems, still exists. 2 Peters' Rep. 625; Reeve on Desc. 377; 4
Kent, Com. 384, 5.
POSSESSION, intern. law. By possession is meant a country which
is held by no other title than mere conquest.
2. In this sense Possession differs from a dependency, which
belongs rightfully to the country which has dominion over it;
and from colony, which is a country settled by citizens or
subjects of the mother country. 3 Wash. C. C. R. 286.
POSSESSION, property. The detention or enjoyment of a thing
which a man holds or exercises by himself or by another who keeps
or exercises it in his name. By the possession of a thing, we
always conceive the condition, in which not only one's own
dealing with the thing is physically possible, but every other
person's dealing with it is capable of being excluded. Thus, the
seaman possesses his ship, but not the water in which it moves,
although he makes each subserve his purpose.
2. In order to complete a possession two things are required.
1st. That there be an occupancy, apprehension, (q. v.) or taking.
2dly. That the taking be with an intent to possess (animus
possidendi), hence persons who have no legal wills, as children
and idiots, cannot possess or acquire possession. Poth. h. It.;
Etienne, h. t. See Mer. R. 358; Abbott on Shipp. 9, et seq. But
an infant of sufficient understanding may lawfully acquire the
possession of a thing.
3. Possession is natural or civil; natural, when a man detains
a thing corporeal, as by occupying a house, cultivating grounds
or retaining a movable in his custody; possession is civil, when
a person ceases to reside in the house, or on the land which he
occupied, or to detain the movable he possessed, but without
intending to abandon the possession. See, as to possession of
lands, 2 Bl. Com. 116; Hamm. Parties, 178; 1 McLean's R. 214,
265.
4. Possession is also actual or constructive; actual, when the
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thing is in the immediate occupancy of the party. 3 Dey. R. 34.
Constructive, when a man claims to hold by virtue of some title,
without having the actual Occupancy; as, when the owner of a lot
of land, regularly laid out, is in possession of any part, he is
considered constructively in possession of the whole. 11 Vern. R.
129. What removal of property or loss of possession will be
sufficient to constitute larceny, vide 2 Chit. Cr. Law, 919; 19
Jurist, 14; Etienne, h. t. Civ. Code of Louis. 3391, et seq.
5. Possession, in the civil law, is divided into natural and
civil. The same division is adopted by the Civil Code of
Louisiana.
6. Natural possession is that by which a man detains a thing
corporeal, as by occupying a house, cultivating ground, or
retaining a movable in his possession. Natural possession is also
defined to be the corporeal detention of a thing, which we
possess as belonging to us, without any title to that possession,
or with a title which is void. Civ. Code of Lo. art. 3391, 3393.
7. Possession is civil, when a person ceases to reside in a
house or on the land which he occupied, or to detain the movable
which he possessed, but without intending to abandon the
possession. It is the detention of a thing, by virtue of a just
title, and under the conviction of possessing as owner. Id. art.
3392, 3394.
8. Possession applies properly only to corporeal things,
movables and immovables. The possession of incorporeal rights,
such as servitudes and other rights of that nature, is only a
quasi. possession, and is exercised by a species of possession of
which these rights are susceptible. Id. art. 3395.
9. Possession may be enjoyed by the proprietor of the, thing,
or by another for him; thus the proprietor of a house possesses
it by his tenant or farmer.
10. To acquire possession of a property, two things are
requisite. 1. The intention of possessing as owner. 2. The
corporeal possession of the thing. Id. art. 3399.
11. Possession is lost with or without the consent of the
possessor. It is lost with his consent, 1. When he transfers this
possession to another with the intention to divest himself of it.
2. When he does some act, which manifests his intention of
abandoning possession, as when a man throws into the street
furniture or clothes, of which he no longer chooses to make use.
Id. art. 3411. A possessor of an estate loses the possession
against his consent. 1. When another expels him from it, whether
by force in driving him away, or by usurping possession during
his absence, aud preventing him from reentering. 2. When the
possessor of an estate allows it to be usurped, and held for a
year, without, during that time, having done any act of
possession, or interfered with the usurper's possession. Id. art.
3412.
12. As to the effects of the purchaser's taking possession, see
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Sugd. Vend. 8, 9; 3 P. Wms. 193; 1 Ves. Jr. 226; 12 Ves. Jr.
27; 11 Ves. Jr. 464. Vide, generally, 5 Harr. & John. 230, 263;
6 Har. & John. 336; 1 Har. & John. 18; 1 Greenl. R. 109; 2
Har. & McH. 60, 254, 260; 3 Bibb, R. 209 1 Har. & McH., 210; 4
Bibb, R. 412, 6 Cowen, R. 632; 9 Cowen, R. 241; 5 Wheat. R.
116, 124; Cowp. 217; Code Nap. art. 2228; Code of the Two
Sicilies, art. 2134; Bavarian Code, B. 2, c. 4, n. 5; Prus.
Code, art. 579; Domat, Lois Civ. liv. 3, t, 7, s. 1; Vin. Ab.
h. t.; Wolff, Inst. §200, and the note in the French
translation; 2 Greenl. Ev. §614, 615; Co. Litt. 57 a; Cro. El.
777; 5 Co. 13; 7 John. 1.
POSSESSOR. He who holds, detains or enjoys a thing, either by
himself or his agent, which he claims as his own.
2. In general the possessor of personal chattels is presumed to
be the owner; and in case of real estate he has a right to
receive the profits, until a title adverse to his possession has
been established, leaving him subject to an action for the mesne
profits. (q. v.)
POSSESSORY ACTION, old Eng. law. A reall action in which the
plaintiff called the demandant, sought to recover the possession
of lands, tenements, and hereditaments. On account of the great
nicety required in its management, and the introduction of more
expeditious methods of trying titles by other actions, it has
been laid aside. Finch's Laws, 257; 3 Bouv. Inst. n. 2640.
2. In Louisiana, by this term is understood an action by which
one claims to be maintained in the possession of an immovable
property, or of a right upon or growing out of it, when he has
been disturbed: or to be reinstated to that possession, when he
has been divested or evicted. Code of Practice, art. 6; 2 L. R.
227, 454.
POSSIBILITY. An uncertain thing which may happen; Lilly's Reg.
h. t.; or it is a contingent interest in real or personal
estate. 1 Mad. Ch. 549.
2. Possibilities are near as when an estate is limited to one
after the death of another; or remote, as that one man shall be
married to a woman, and then that she shall die, and he be
married to another. 1 Fonb. Eq. 212, n. e; l6 Vin. Ab. h. t., p.
460; 2 Co. 51 a.
3. Possibilities are also divided into, 1. A possibility
coupled with an interest. This may, of course, be sold, assigned,
transmitted or devised; such a possibility occurs in executory
devises, and in contingent, springing or executory uses.
4. - 2. A bare possibility, or hope of succession; this is the
case of an heir apparent, during the life of his ancestor. It is
evident that he has no right which he can assign, devise, or
even, release.
5. - 3. A possibility' or mere contingent interest, as a devise
to Paul if he survive Peter. Dane's Ab. c. 1, a 5, §2, and the
cases there cited.
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POST. After. When two or more alienations or descents have
taken place between an original intruder ant or defendant in a
writ of entry, the writ is said to be in the post, because it
states that the tenant had not entry unless after the ouster of
the original intruder. 3 Bl. Com. 182. See Entry, limit of.
POST DATE. To date an instrument a time after that on which it
is made. Vide Date.
POST DIEM. After the day; as a plea of payment post diem,
after the, day when the money became due. Com. Dig. Pleader, 2 W
29.
POST DISEISIN, Engl. law. The name of a writ which, lies for
him who, having recovered lands and tenements by force of a novel
disseisin, is again disseised by a former disseisor. Jacob.
POST ENTRY, maritime law. When a merchant makes an entry on
the importation of, goods, and at the time he is not able to
calculate exactly the duties which he is liable to pay, gave rise
to the practice of allowing entries to be made after the goods
have been weighed, measured or gauged, to make up the deficiency
of the original or prime entry; the entry thus allowed to be
made is called a post entry. Chit. Com. Law, 746.
POST FACTO). after the fact. Vide Ex post facto.
POST LITEM MOTAM. After the commencement of the suit.
2. Declarations or acts of the parties made post litem motam,
are presumed to be made with reference to the suit then pending,
and, for this reason, are not evidence in favor of the persons
making them; while those made before an action has been
commenced, in so me cases, as when a pedigree is to be proved,
may in some cases be considered as evidence. 4 Camp. 401.
POST MARK. A stamp or, mark put on letters in the post office.
2. Post marks are evidence of a letter having passed through
the post office. 2 Camp. 620; 2 B. & P. 316; 15 East, 416; 1
M. & S. 201; 15 Com. R. 206.
POST MORTEM. After death; as, an examination post mortem, is
an examination made of a dead body to ascertain the cause of
death; an inquisition post mortem, is one made by the coroner.
POST NOTES. A species of bank notes payable at a distant
period, and not on demand. 2 Watts & Serg. 468. A kind of bank
notes intended to be transmitted at a distance by post. See 24
Maine, R. 36.
POST NATUS. Literally after born; it is used by the old law
writers to designate the second son. See Puisne; Post-nati.
POST NUPTIAL. Something which takes place after marriage; as a
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post nuptial settlement, which is a conveyance made generally by
the hushand for the benefit of the wife.
2. A post nuptial settlement is either with or without
consideration. The former is valid even against creditors, when
in other respects it in untainted with fraud. 4 Mason, 443; 2
Bailey 477. The latter, or when made without consideration, if
bona fide, and the hushand be not involved at the time, and it be
not disproportionate to his means, taking his debts and situation
into consideration, is valid. 4 Mason, 443.7 See 4 Dall. 304;
Settlement; Voluntary conveyance.
POST OBIT, contract. An agreement, by which the obligor borrows
a certain sum of money and promises to pay a larger sum,
exceeding the lawful rate of interest, upon the death of a
person, from whom he has some expectation, if the obligor be then
living. 7 Mass. R. 119; 6 Madd. R. 111; 5 Ves. 57; 19 Ves.
628.
2. Equity will, in general, relieve a party from these unequal
contracts, as they are fraudulent on the ancestor. See 1 Story,
Eq. §842; 2 P. Wms. 182; 2 Sim. R. 183, 192; 5 Sim. R. 524.
But relief will be granted only on equitable terms, for he who
seeks equity must do equity. 1 Fonb. B. 1, c. 2, §13, note, p; 1
Story, Eq. §344. See Catching Bargain; Macedonian Decree.
POST OFFICE. A place where letters are received to be sent to
the persons to whom they, are addressed.
2. The post office establishment of the United States, is of
the greatest importance to the people and to the government. The
constitution of the United States has invested congress with
power to establish post offices and post roads.. Art. 1, s. 8, n.
7.
3. By virtue of this constitutional authority, congress passed
several laws anterior to the third day of March, 1825, when an
act, entitled "An act to reduce into one the several acts
establishing and regulating the post office department," was
passed. 3 Story, U. S. 1985. It is thereby enacted, §1. That
there be established, the seat of the government of the United
States, a general post office, under the direction of a
postmaster general. The postmaster general shall appoint two
assistants, and such clerks as may be necessary for the
performance of the business of his office, and as are authorized
by law; and shall procure, and cause to be kept, a seal for the
said office, which shall be affixed to commissions of
postmasters, and used to authenticate all transcripts and copies
which may be required from the department. He shall establish
post offices, and appoint postmasters, at all such places as
shall appear to him expedieut, on the post roads that are, or may
be, established by law. He shall give his assistants, the
postmasters, and all other persons whom he shall employ, or who
may be employed in any of the departments of the general post
office, instructions relative to their duty. He shall provide for
the carriage of the mail on all post roads that are, or may be,
established by law, and as often "he, having regard to the
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productiveness thereof, and other circumstances, shall think
proper. He may direct the route or road, where there are more
than one, between places designated by law for a post road, Which
route shall be considered the post road. He shall obtain, from
the postmasters, their accounts and vouchers for their receipts
and expenditures, once in three months, or oftener, with the
balances thereon arising, in favor of the general post office. He
shall pay all expenses which may arise in conducting the post
office, and in the conveyance of the mail, and all other
necessary expenses arising on the collection of the revenue, and
management of the general post office. He shall prosecute
offences against the post office establishment. He shall, once in
three months, render, to the secretary of the treasury, a
quarterly account of all the receipts and expenditures in the
said department, to be adjusted and settled as other public
accounts. He shall, also, superintend the business of the
department in all tho duties that are, or may be assigned to it:
Provided, That, in case of the death, resignation, or, removal
from office, of the postmaster general, all his duties shall be
performed by his senior assistant, until a successor shall be
appointed, and arrive at the general post office, to perform the
business.
4. - §2. That the postmaster general, and all other persons
employed in the general post office, or in the care, custody, or
conveyance of the mail, shall, previous to entering upon the
duties assigned to them, or the execution of their trusts, and
before they shall be entitled to receive any emolument therefor,
respectively take and subscribe the following oath, or
affirmation, before some magistrate, and cause a certificate
thereof to be filed in the general post office: "I, A B, do
swear or affirm, (as the case may be, that I will faithfully
perform all the duties required of me, and abstain from
everything forbidden by the laws in relation to the establishment
of the post office and post road s within the United States."
Every person who shall be, in any manner, employed in the care,
custody, or conveyance, or mauagement of the mail, shall be
subject to all pains, penalties, and forfeitures, for violating
the injunctions, or neglecting the duties, required of him by the
laws relating to the establishment of the post office and post
roads, whether such person shall have taken the oath or
affirmation, above prescribed, or not.
5. - §3. That it shall be the duty of the postmaster general,
upon the appointment of any postmaster, to require, and take, of
such postmaster, bond, with good and approved security, in such
penalty as he may judge sufficient, conditioned for the faithful
discharge of all the duties of such postmaster, required by law,
or which may be required by any instruction, or general rule, for
the government of the department: Provided, however, That, if
default shall be made by the postmaster aforesaid, at any time,
and the postmaster general shall fail to institute suit against
such post-master, and said sureties, for two years from and after
such default shall be made, then, and in that case, the said
sureties shall not be held liable to the United States, nor shall
suit be instituted against them.
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6. - §4. That the postmaster general shall cause a mail to be
carried from the nearest post office, on any established post
road, to the court house of any county which is now, or may
hereafter be established in any of the states or territories of
the United States, and which is without a mail; and the road on
which such mail shall be transported, shall become a post road,
and so continue, until the transportation thereon shall cease. It
shall for the postmaster general to enter into contracts, for a
term not exceeding four years, for extending the line of posts,
and to authorize the persons, so contracting, as a compensation
for their expenses, to receive during the continuance of such
contracts, at rates not exceeding those for like distances,
established by this act, all the postage which shall arise on all
letters, newspapers, magazines, pamphlets, and packets, conveyed
by any such posts; and the roads designated in such contracts,
shall, during the continuance thereof, be deemed and considered
as post roads, within the provision of this act: and a duplicate
of every such contract shall, within sixty days after the
execution thereof, be lodged in the office of the comptroller of
the treasury of the United States.
7. - §5. That the postmaster general be authorized to have the
mail carried in any steamboat, or other vessel, which shall be
used as a packet in, any of the waters of the United States, on
such terms and conditions as shall be considered expedient:
Provided, That he does not pay more than three cents for each
letter, And more than one half cent for each newspaper, conveyed
in such mail.
8. - §8. That, whenever it shall be made appear, to the
satisfaction of the postmaster general, that any road
established, or which may hereafter be established as a post
road, is obstructed by fences, gates, or tars, or other than
those lawfally used on turnpike, roads to collect their toll, and
not kept in good repair, with proper bridges and ferries, where
the same may be necessary, it shall be the duty of the postmaster
general to report the same to congress, with such information as
can be obtained, to enable congress to establish some other road
instead of it, in the same main direction.
9. - §39. That it shall be the duty of the postmaster general
to report, annually, to congress, every post road which shall
not, after the second year from its establishment, have produced
one-third of the expense of carrying the mail on the same.
10. The act "to change the organization of the post office
department, and to provide more effectually for the settlement of
the accounts thereof," passed July 2, 1836, 4 Shars. cont. of
Story L. U. S. 2464, contains a variety of minute provisions for
the settlement of the revenue of the post office department.
11. By the act of the 3d of March, 1845, various provisions are
made to protect the department from fraud and to prevent the
abuse of franking.
12. Finding roads in use throughout the country, congress has
established, that is, selected such as suited the convenience of
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the government, and which the exigencies of the people required,
to be post roads. It has seldom exercised the power of making new
roads, but examples are not wanting of roads having been made
under the express authority of congress. Story, Const. §1133.
Vide Dead Letter; Jeopardy; Letter; Mail; Newspaper;
Postage; Postmaster; Postmaster general.
POSTAGE. The money charged by law for carrying letters, packets
and documents by mail. By act of congress of March 3, 1851,
Minot's Statute at Large, U. S. 587, it is enacted as follows:
2. - §1. That from and after the thirtieth day of June,
eighteen hundred and fifty-one, in lieu of the rates of postage
now established by law, there shall be charged the following
rates, to with or every single letter in manuscript, or paper of
any kind, upon which information shall be asked for, or
communicated, in writing, or, by marks or signs, conveyed in the
mail for any distance between places within the United State's,
not exceeding three thousand miles, when the postage upon such
letter shall have been prepaid, three cents, and five cents when
the postage thereon shall not have been prepaid; and for any
distance exceeding three thousand miles, double those rates. For
every such, single letter or paper when conveyed wholly or in
part by sea, and to or from a foreign country, for any distance
over twenty-five hundred miles, twenty cents, and for any
distance under twenty-five hundred miles, ten cents, (excepting,
however, all cases where such postages have been or shall be
adjusted at different rates, by postal treaty or convention
already concluded or hereafter to be made;) and for a double
letter there shall be charged double the rates above specified;
and for a treble letter, treble those rates; and for a quadruple
letter, quadruple those rates; and every letter or parcel not
exceeding half an ounce in weight shall be deemed a single
letter, and every additional weight of half an ounce, or
additional weight of less than half an ounce, shall be charged
with an adclitional single postage. And all drop letters, or
letters placed in any post office, not for transmission, but for
delivery only, shall be charged with postage at the rate of one
cent each; and all letters which shall hereafter be advertised
as remaining over or uncalled for in any post office, shall be
charged with one cent in addition to the regular postage, both to
be accounted for as other postages are.
3. - §2. That all newspapers not exceeding three ounces in
weight, sent from the office of publication to actual and bona
fide subscribers, shall be charged with postage as follows, to
wit: All newspapers published weekly only, shall circulate in
the mail free of postage within the county where published, and
that the postage on the regular numbers of a newspaper published
weekly, for any distance not exceeding fifty miles out of the
county where published, shall be five cents per quarter; for any
distance exceeding fifty miles and not exceeding three hundred
miles, ten cents per quarter; for any distance exceeding three
hundred miles and not exceeding one thousand miles, fifteen cents
per quarter; for any distance exceeding one thousand miles and
not exceeding two thousand miles, twenty cents per quarter; for
any distance exceeding two thousand miles and not exceeding four
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thousand miles, twenty-five cents per quarter; for any distance
exceeding four thousand miles, thirty cents per quarter; and all
newspapers published monthly, and sent to actual aud bona fide
subscribers, shall be charged with one-fourth the foregoing
rates; and on all such newspapers published semi-monthly shall
be charged with one-half the foregoing rates; and papers
published semi-weekly shall be charged double those rates;
triweekly, treble those rates; and oftener than tri-weekly, five
times, those rates. And there shall be charged upon every other
newspaper, and each circular not sealed, handbill, engraving,
pamphlet, periodical, magazine, book, and every other description
of printed matter, which shall be unconnected with any manuscript
or written matter, and which it may be lawful to transmit through
the mail, of no greater weight than one ounce, for any distance
not exceeding five hundred miles, one cent; and for each
additional ounce or fraction of an ounce, one cent; for any
distance exceeding five hundred miles and not exceeding one
thousand five hundred miles, double those rates; for any
distance, exceeding one thousand five hundred miles-and not
exceeding two thousand five hundred miles, treble those rates;
for any distance exceeding two thousand five hundred miles and
not exceeding three thousand five hundred miles, four times those
rates; for any distance exceeding three thousand five hundred
miles, five times those rates. Subscribers to all periodicals
shall be required to pay one quarter's postage in advance, and in
all such cases the postage shall be one-half the foregoing rates.
Bound books, and parcels of printed matter not weighing over
thirty-two ounces, shall be deemed mailable matter under the
provisions of this section. And the postage on all printed matter
other than newspapers and periodicals published at intervals not
exceeding three months, and sent from the office of publication,
to actual and bona fide subscribers, to be prepaid; and in
ascertaining the weight of newspapers for the purpose of
determining the amount of postage chargeable thereon, they shall
be weighed when in a dry state, And whenever any printed matter
on which the postage is required by this section to be prepaid,
shall, through the inattention of postmasters or otherwise, be
sent without prepayment, the same shall be charged with double
the amount of postage which would have been chargeable thereon if
the postage had been prepaid; but nothing in this act contained
shall subject to postage any matter which is exempted from the
payment of postage by any existing law, And the postmaster
general, by and with the advice and consent of the president of
the United States, shall be, and he hereby is, authorized to
reduce or enlarge, from time to time, the rates of postage upon
all letters. and other mailable matter conveyed between the
United States and any foreign country for the purpose of making
better postal arrangements with other governments, or
counteracting any adverse measures affecting our postal
intercourse with foreign countries, and postmasters at the office
of delivery are hereby authorized, and it shall be their duty, to
remove the wrappers and envelopes from all printed matter and
pamphlets not charged with letter postage, for the purpose of
ascertaining whether there is upon or connected with any such
printed matter, or in such package, any matter or thing which
would authorize or require the charge of a higher rate of postage
thereon. And all publishers of pamphlets, periodicals, magazines,
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and newspapers, which shall not exceed sixteen ounces in weight,
shall be allowed. to interchange their publications reciprocally,
free of postage: Provided, That such interchange shall be
confined to a single copy of each publication: And provided,
also, That said publishers may enclose in their publications the
bills for subscriptions thereto, without any additional charge
for postage; And provided, further, Thai in all cases where
newspapers shall not contain over three hundred square inches,
they may be transmitted through the mails by the publishers to
bona fide subscribers, at one-fourth the rates fixed by this act.
5. By the act of March 3, 1845, providing for the
transportation of the mail between the United States and foreign
countries, it is enacted by the 3d section, that the rates of
postage to be charged and collected on all letters, packages,
newspapers, and pamphlets, or other printed matter, between the
ports of the United States and the ports of foreign governments
enumerated herein, transported in the United States mail under
the provisions of this act, shall be as follows: Upon all
letters and packages not exceeding one-half ounce in weight,
between any of the ports of the United States aud the ports of
England or France, or any other foreign port not less than three
thousand miles distant twenty-four cents, with the inland postage
of the United States added when sent through the United States
mail to or from the post office at a port of the United States;
upon letters and packets over one-half an ounce in weight, and
not exceeding one ounce, forty-eight cents; and for every
additional half ounce or fraction of an ounce, fifteen cents;
upon all letters and packets not, exceeding one-half ounce, gent
through the United States mail between the ports of the United
States and any of the West India islands, or islands in the Gulf
of Mexico, ten cents; and twenty cents upon letters and packets
not exceeding one ounce; and five cents for every additional
half ounce or fraction of an ounce; upon each newspaper,
pamphlet, and price current, sent in the mail between the United
States and any of the ports and places above enumerated, three
cents, with inland United States postage added when the same is
transported to or from said port of the United States in the
United States mail.
POSTAGE STAMPS. The act of congress, approved March 3, 1847,
section 11, and the act of congress of March 3, 1841, sections 3,
4, provide that, to facilitate the transportation of letters in
the mail, the postmaster general be authorized to prepare
postage, stamps, which, when attached to any letter or packet,
shall be evidence of the payment of the postage, chargeable on
such letter. The same sections declare that any person who shall
falsely or fraudulently make, utter, or, forge any postage stamp,
with the intent to defraud the post office department, shall be
deemed guilty of felony, and be punished by a fine not exceeding
five hundred dollars, or by imprisonment not exceeding five
years, or by both such fine and imprisonment. And if any person
shall use or attempt to use, in pre-payment of postage, any
postage stamp which shall have been used before for like
purposes, such person shall be subject, to a penalty of fifty
dollars for every such offence, to be recovered in the name of
the United States in any court of competent jurisdiction.
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POSTEA, practice. Afterwards. The endorsement on the nisi prius
record purporting to be the return of the judge before whom a
cause is tried, of, what has been done in respect of such record.
It states the day of trial, before what judge, by name, the cause
is tried, and also who is or was an associate of such judge; it
also states the appearance of the parties by their respective
attorneys, or their defaults; and the summoning and choice of
the jury, whether those who were originally summoned, or those
who were tales, or taken from the standers by; it then states
the finding of the jury upon oath, and, according to the
description of the action, and the assessment of the damages with
the occasion thereof, together with the costs.
2. These are the usual matters of fact contained in the postea,
but it varies with the description of the action. See Lee's Dict.
Postea; 2 Lill. P. R. 337; 16 Vin. Abr. 465; Bac. Use of the
Law, Tracts, 127, 5.
3. When the trial is decisive, and neither the law nor the
facts can afterwards be controverted, the postea is delivered by
the proper officer to the attorney of the successful party, to
sign his judgment; but it not unfrequently happens that after a
verdict has been given, there is just cause to question its
validity, in such case the postea remains in the custody of the
court. Eunom. Dial. 2, §33, p. 116.
POSTERIORES. This term was used by the Romans to denote the
descendant in a direct line beyond the sixth degree. It is still
used in making genealogical tables.
POSTERIORITY, rights. Being or, coming after. It is a word of
comparison, the correlative of which is priority; as, when a man
holds lands from two landlords, he holds from his ancient
landlord by priority and from the other by posteriority. 2 Inst.
392.
2. These terms, priority and posteriority, are also used in
cases of liens the first are prior liens, and are to be paid in
the first place; the last are posterior liens, and are not
entitled to payment until the former have been satisfied.
POSTERITY, descents. All the descendants of a person in a
direct line.
POSTHUMOUS CHILD. after the death of its father; or, when the
Caesarian operation is performed, after that of the mother.
2. Posthumous children are entitled to take by descent as if
they had been born at the time of their deceased ancestor. When a
father has made a will without providing for a posthumous child,
such a will is in some states, as in Pennsylvania, revoked pro
tanto by implication. 4 Kent, Com. 506; Dig. 28, 5, 92;
Ferriere, Com. h. t.; Domat, Lois Civiles, part 2 ' liv. 2, t.
1, s. 1: Merl. Rep. h. t.; 2 Bouv. Inst. n. 2158.
POSTILS, postillae. Marginal notes made in a book or writing
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for reference to other parts of the same, or some other book or
writing.
POSTLIMINIUM. That right in virtue of which persons and things
taken by the enemy are restored to their former state, when
coming again under the power of the nation to which they belong.
Vat. Liv. 3, c. 14, s. 204; Chit. Law of Nat. 93 to, 104; Lee
on Captures, ch. 5; Mart. Law of Nat. 305; 2 Wooddes. p. 441,
s. 34; 1 Rob. Rep. 134; 3 Rob. Rep. 236; Id. 97 2 Burr. 683;
10 Mod. 79; 6 Rob. R. 45; 2 Rob. Rep. 77; 1 Rob. Rep. 49; 1
Kent, Com. 108.
2. The jus posiliminii was a fiction of the Roman law. Inst. 1,
12, 5.
3. It is a right recognized by the law of nations, and
contributes essentially to mitigate the, calamities of war. When,
therefore, property taken by the enemy is either recaptured or
rescued from him, by the fellow subjects or allies of the
original owner, it does not become the property of the recaptor
or rescuer, as if it had been a new prize, but it is restored to
the original owner by right of postliminy, upon certain terms.
POSTMAN, Eng. law. A barrister in the court of exchequer, who
has precedence in: motions.
POSTMASTER, or DEPUTY POSTMASTER. An officer of the United
States appointed by the postmaster general to hold his office.
during the, plaasure of the former. Before entering on the duties
of his office, he is required to give bond with surety to be
approved by the postmaster general. Act of 3d March, 1825, s. 3.
12. Every postmaster is required to keep an office in the place
for which he may be appointed; and it is his duty to receive and
forward by mail, without delay, all letters, papers, and packets
as directed; to receive the mails and deliver, at all reasonable
hours, all letters, papers and packets to the persons entitled
thereto.
3. In lieu of commissions allowed deputy postmasters by the
14th section of the act of 3d March, 1845,.the postmaster general
is authorized by the act of March 1, 1847, s. 1, to allow, on the
proceeds of their respective offices, a commission not exceeding
the following rates on the amount received in any one year, or a
due proportion thereof for less-than a year: On a sum not
exceeding one hundred dollars, forty per cent; on a sum over the
first hundred and not exceeding four hundred dollars,
thirty-three and one-third per cent; on a sum over and above the
first four hundred dollars and not exceeding twenty-four hundred
dollars, thirty per cent.; on a sum over twenty-four hundred
dollars, twelve and one-half per cent.; on all sums arising from
the postage on newspapers, magazines, and pamphlets, fifty per
cent.; on the amount of postages on letters or packets received
for distribution, seven per cent.: Provided, That all
allowances, commissions, or other emoluments, shall be subject to
the provisions of the forty-first section of the act which this
is intended to amend; and that the annual compensation therein
limited shall be computed for the fiscal year commencing on the
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first of July and ending the thirtieth of June each year, and
that for any period less than a year the restrictions contained
in said section shall be held to apply in a due proportion for
such fractional period: And, provided further, That the
compensation to any,, deputy postmaster under the foregoing
provisions to be computed upon the receipt at his office of a
larger sum shall in no case fall short of the amount to which he
would be entitled under a smaller sum received at his office.
4. By act of congress approved March 3, 1851, §6, it is
enacted, That to any postmaster whose commissions may be reduced
below the amount allowed at his office for the year ending the
thirtieth day of June, eighteen hundred and fifty-one, and whose
labors may be increased, the postmaster general shall be
authorized, in his discretion, to allow such additional
commissions as be may deem just and proper Provided, That the
whole amount of commissions allowed such postmaster during any
fiscal year, shall not exceed by more than twenty per centum the
amount of commissions at such office for the year ending the
thirtieth day of June, eighteen hundred and fifty-one.
5. Although not subject to all the, responsibilities of a
common carrier, yet a postmaster is liable for all losses and
injuries occasioned by his own default in office. 3 Wils. Rep.
443; Cowp. 754; 5 Burr. 2709; 1 Bell's Com. 468; 2 Kent. Com.
474; Story on Bailm. §463.
6. Whether a postmaster is liable for the acts of his clerks or
servants seems not to be settled. 1 Bell's Com. 468, 9. In
Pennsylvania it has been decided that he is not responsible for
their secret delinquencies, though perhaps he is answerable for
want of attention to the official conduct of his subordinates. 8
Watts. R. 453. Vide Frank; Post Office.
POSTMASTER GENERAL. The chief officer of the post office
department of the United States. Various duties are imposed upon
this officer by the acts of congress of March 3, 1825, and July
2, 1836, which will be found under the articles Mail; Post
Office and Postage.
2. The act of February 20, 1819, 3 Story's L. U. S. 1720, gives
the postmaster general a salary of four thousand dollars per
annum and that of March 2, 1827, 3 Story's L. U. S. 2076,
declares there shall be paid, annually, to the postmaster general
two thousand dollars, in addition to his present salary.
POST NATI. Born after. This term is applied to persons who came
to reside in tho United States after the declaration of
independence. They are generally considered aliens, unless they
become naturalized, or are otherwise so declared, by law. In
Massachusetts, by statutory provision, and in Connecticut, by
decision, a person born abroad, if he went there to reside before
the treaty of peace of the 3d of September, 1783, is considered a
citizen. 2 Pick. R. 394 5 Day, R. 169; 2 Kent, Com. 51, 2.
POSTULATIO, Rom. civ. law. The name given to the first act in a
criminal proceeding. A person who wished to accuse another of a
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crime, appeared before the praetor and asked his authority for
that purpose, designating the person intended. This act was
called postulatio. The postulant (calumniam jurabat) made oath
that he was not influenced by a spirit of calumny, but acted in
good faith, with a view to the public interest. The praetor
received this declaration, at, first made verbally, but
afterwards in writing, and called a libel. The postulatio was
posted lip in the forum, to give public notice of the names of
the accuser and the accused. A second accuser sometimes appeared
and went through the same formalities.
2. Other persons were allowed to appear and join the postulant
or principal accuser. These were said postulare subscriptionem
and were denominated subscriptores. Cic. in Caecil Divin. 15. But
commonly such persons acted concurrently with the postulant, and
inscribed, their names at the time he first appeared. Only one
accuser, however, was allowed to act, and if the first inscribed
did not desist in favor of the second, the right was determined,
after discussion, by judges appointed for the purpose. Cic. in
Verr. I. 6. The preliminary proceeding was called divinatio, and
is well explained, in the oration of Cicero, entitled Divinatio.
Bee Aulus Gellius, Att. Noct. lib. II. cap. 4.
3. The accuser having been determined in this manner, he
appeared, before the praetor, and formally charged the accused by
name, specifying the crime. This was called nominis et criminis,
delatio. The magistrate reduced it to writing, which was called
inscriptio, and the accuser and his adjuncts, if any, signed it,
subscribebant. This proceeding corresponds to the indictment of
the common law.
4. If the accused appeared, the accuser formally charged him
with the crime. If the accused confessed it, or stood mute, he
was adjudged to pay the penalty. If he denied it, the inscriptio
contained his answer, and he was then (in reatu) indicted, (as we
should say) and was called reus, and a day was fixed, ordinarily
after an interval of at least ten days, according to the nature
of the case, for the appearance of the parties. In the case of
Verres, Cicero obtained one hundred and ten days to prepare his
proofs, although he accomplished it in fifty days, and renounced,
as he might do, the advantage of the remainder of the time
allowed him.
5. At the day appointed for the trial the accuser and his
adjuncts or colleagues, the accused, and the judges, were
summoned by the herald of the preator. If the accuser did not
appear, the' case was erased from the roll. If the accused made
default he was condemned. If both parties appeared, a jury was
drawn by the praetor or judex questionis. The jury were called
jurati homines, and the drawing of them sortitio, and they were
taken from a general list made out for the year. Either party had
a right to object to a certain extent to the persons drawn, and
then there was a second drawing called subsortitio, to complete
the number.
6. In some tribunals (quaestiones) the jury were (editi)
produced in equal number by the accuser and the accused, and
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sometimes by the accuser alone, who were objected to or
challenged in different ways, according to the nature of the
case. The number of the jury also varied according to the.
tribunal, (quaestio) they were sworn before the trial began.
Hence they were called jurati.
7. The accusers ana often the subscriptores were heard, and
afterwards the accused, either by himself or by his advocates, of
whom he commonly had several. The witnesses, who swore by
Jupiter, gave their testimony after the discussions or during the
progress of the pleadings of the accuser. In some cases it was
necessary to plead the cause on the third day following the first
hearing, which was called comperendinatio.
8. After the pleadings were concluded the praetor or the judex
quastionis distributed tablets to the jury, upon which each wrote
secretly, either the letter A (absolvo) or the letter C,
(condemno) or N. L. (non liquet.) These tablets were deposited in
an urn. The president assorted and counted the tablets. If the
majority were for acquitting the accused, the magistrate declared
it by the words fecisse non videtur, and by the words fecisse
videtur if the majority were for a conviction. If the tablets
marked N. L. were so many as to prevent an absolute majority for
a conviction or acquittal, the cause was put off for more ample
information, ampliatio, which the preator declared by the word
amplies. Such in brief was the course of proceedings before the
quaestiones perpeduae.
9. The forms observed in the comitia centiniata and comitia
tributa were nearly the same, except the composition of the
tribunal, and the mode of declaring the vote.
10. It is easy to perceive in this account of a criminal
action, the germ of the proceedings on an indictment at common
law.
POT-DE-VIN, French law. A sum of money frequently paid, at the
moment of entering into a contract, be=yond the price agreed
upon.
2. It differs from arrha, (q. v.) in this, that it is no part
of the price of the thing sold, and, that the person who has
received it, cannot by returning double the amount, or the other
party by losing what he has paid, rescind the contract. 18 Toull.
n. 52.
POTENTATE. One who has a great power over, an extended country;
a sovereign.
2. By the naturalization laws, an alien is required, before he
can be naturalized, to renounce all allegiance aud fidelity to
any foreign prince, potentate, state, or sovereign whatever.
POTESTAS, civil law. A Latin word which signifies power;
authority; domination; empire. It has several meaning. 1. It
signifies imperium, or the jurisdiction of magistrates. 2. The
power of the father over his children, patriapotestas. 3. The
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authority of masters over their slaves, which makes it nearly
synonymous with dominium. See Inst. 1, 9, et 12; Dig. 2, 1, 13,
1; Id. 14, 1; Id. 14, 4, 1, 4.
POUND, weight. There are two kinds of weights, namely, the
troy, and the avoirdupois. The pound avoirdupois is greater than
the troy pound, in the proportion of seven thousand to five
thousand seven hundred and sixty. The troy pound contains twelve
ounces, that of avoirdupois sixteen ounces.
POUND, Eng. law. A place enclosed to keep strayed animals in. 5
Pick. 514; 4 Pick. 258; 9 Pick. 14.
POUND, money. The sum of twenty shillings. Previous to the
establishment of the federal currency,, the different states made
use of the pound in computing money; it was of different value
in the several states.
2. Pound sterling, is a denomination of money of Great Britain.
It is of the value of a sovereign. (q. v.) In calculating the
rates of duties, the pound sterling shall be considered and taken
as of the value of four dollars and eighty cents. Apt of March 3,
1833.
3. The pound sterling of Ireland is to be computed, in
calculating said duties, at four dollars and ten cents. Id.
4. The pound of the British provinces Nova Scotia, New
Brunswick, Newfoundland, and Canada, is to be so computed at four
dollars. Act of May, 22, 1846.
POUNDAGE, practice. The amount allowed to the sheriff, or other
officer, for commissions on, the money made by virtue of an
execution. This allowance varies in different states, and to
different officers.
POURPARLER, French law. The conversations and negotiations
which have taken place between the parties in order to make an
agreement. These form no part of the agreement. Pard. Dr. Com.
142.
2. The general rule in the common law is the same, parol proof
cannot, therefore, be given to contradict, alter, add to, or
diminish a written instrument, except in some particular cases. 1
Dall. 426; Dall. 340; 8 Serg. & Rawle, 609; 7 Serg. Rawle,
114.
POURSUIVANT. A follower, a pursuer. In the ancient English law,
it signified an officer who attended upon the king in his wars,
at the council table, exchequer, in his court, &e., to be sent as
a messenger. A poursuivant was, therefore, a messenger of the
king.
POWER. This is either inherent or derivative. The former is the
right, ability, or faculty of doing something, without receiving
that right, ability, or faculty from another. The people have the
power to establish a form of govemment, or to change one already
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established. A father has the legal power to chastise his son; a
master, his apprentice.
2. Derivative power, which is usually known, by the technical
name of power, is an authority by which one person enables
another to do an act for him. Powers of this kind were well known
to the common law, and were divided into two sorts: naked powers
or bare authorities, and powers coupled with an interest. There
is a material difference between them. In the case of the former,
if it be exceeded in the act done, it is entirely void; in the
latter it is good for so much as is within the power, and void
for the rest only.
3. Powers derived from, the doctrine of uses may be defined to
be an authority, enabling a person, through the medium of the
statute of uses, to dispose of an interest, vested either in
himself or another person.
4. The New York Revised Statute's define a power to be an
authority to do some act in relation to lands, or the creation of
estates therein, or of charges thereon, which the owner granting
or reserving such power might himself lawfully perform.
5. They are powers of revocation and appointment which are
frequently inserted in conveyances which owe their effect to the
statute of uses; when executed, the uses originally declared
cease, and new uses immediately arise to the persons named in the
appointment, to which uses the statute transfers the legal estate
and possession.
6. Powers being found to be much more convenient than
conditions, were generally introduced into family settlements.
Although several of these powers are not usually called powers of
revocation, such as powers of jointuring, leasing, and charging
settled estates with the payment of money, yet all these are
powers of revocation, for they operate as revocations, pro tanto,
of the preceding estates. Powers of revocation and appointment
may be reserved either to-the original owners of the land or to
strangers: hence the general division of powers into those which
relate to the land, and those which are collateral to it.
7. Powers relating to the land are those given to some person
having an interest in the land over which they are to be
exercised. These again are subdivided into powers appendant and
in gross.
8. A power appendant is where a person has an estate in land,
with a power of revocation and appointment, the execution of
which falls within the compass of his estate; as, where a tenant
for life has a power of making leases in possession.
9. A power in gross is where a person has an estate in the
land, with a power of appointment, the execution of which falls
outof the compass of his estate, but, notwithstanding, is annexed
in privity to it, and takes effect in the appointee, out of an
interest vested in the appointer; for instance, where a tenant
for life has a power of creating an estate, to commence after the
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determination of his own, such as to settle a jointure on his
wife, or to create a term of years to commence after his death,
these are called powers in gross, because the estate of the
person to whom they are given, will not be affected by the
execution of them.
10. Powers collateral, are those which are given to mere
strangers, who have no interest in the laud: powers of sale and
exchange given to trustees in a marriage settlement are of this
kind. Vide, generally, Powell on Powers, assim; Sugden on
Powers, passim; Cruise, Dig. tit. 32, ch.
13; Vin. Ab. h. t.; C om. Dig. Poiar; 1 Supp. to Ves. jr.
40, 92, 201, 307; 2 Id. 166, 200; 1 Vern. by Raithby, 406; 3
Stark. Ev. 1199; 4 Kent, Com. 309; 2 Lilly's Ab. 339; Whart.
Dig. h. t. See 1 Story, Eq. Jur. §169, as to the execution of a
power, and when equity will supply the defect of execution.
11. This classification of powers is admitted to be important
only with reference to the ability of the donee to suspend,
extinguish or merge the power. The general rule is that a power
shall not be exercised in derogation of a prior grant by the
appointer. But this whole division of powers has been condemned'
as too artificial and arbitrary.
12. Powell divides powers into general and particular. powers.
General powers are those to be exercised in favor of any person
whom the appointer chooses. Particular powers are those which are
to be exercised in favor of specific objects. 4 Kent, Com. 311,
Vide, Bouv. Inst. Index, h. t.; Mediate powers; Primary powers.
POWER OF ATTORNEY. Vide Letter of attorney, and 1 Mood. Or.
Cas. 57, 58.
POYNING'S LAW, Engl. law. The name usually given to an act
which was passed by a parliament holden in Ireland in the tenth
of Henry the Seventh; it enacts that all statutes made in the
realm of England before that time should be in force and put in
use in the realm of Ireland. Irish Stat. 10 H. VII. c. 22; Co.
Litt. 141 b; Harg. n. 3.
PRACTICE. The form, manner and order of conducting and carrying
on suits or prosecutions in the courts through their various
stages, according, to the principles of law, and the rules laid
down by the respective courts.
2. By practice is also meant the business which an attorney or
counsellor does; as, A B has a good practice.
3. The books on practice are very numerous; among the most
popular are those Of Tidd, Chiity, Archbold, Sellon, Graham,
Dunlap, Caines, Troubat and Haly, Blake, Impey.
4. A settled, uniform, and loll, continued practice, without
objection is evideuce of what the law is, and such practice is
based on principles which are founded in justice and convenience.
Buck, 279; 2 Russ. R. 19, 570; 2 Jac. It. 232; 5 T. R. 380; 1
Y. & J. 167, 168; 2 Crompt. & M. 55; Ram on Judgm. ch. 7.
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PRAEDA BELLICA. Lat. Booty; property seized in war. Vide
Booty; Prize.
PRAECIPE or PRECIPE, practice. The name of the written
instructions given by an attorney or plaintiff to the clerk or
prothonotary of a court, whose duty it is to make out the writ,
for the making of the same.
PRAEDIAL. That which arises immediately from the ground; as,
grain of all sorts, hay, wood, fruits, herbs, and the like.
PRAEDIUM DOMINANS, civil law. The name given to an estate to
which a servitude is due; it is called the ruling estate.
PRAEDIUM RUSTICUM, civil law. By this is understood all
heritages which are not destined for the use of man's habitation;
such, for example, as lands, meadows, orchards, gardens, woods,
even though they should be within the boundaries of a city.
PRAEDIUM SERVIENS, Civil law. The name of an estate which
suffers or yields a service to another estate.
PRAEDIUM URBANUM, civil law. By this term is understood
buildings and edifices intended for the habitation and use of
man, whether they be built in cities or whether they be
constructed in the country.
PRAEFECTUS VIGILUM, Roman civ. law. The chief officer of the
night watch. His jurisdiction extended to certain offences
affecting the public peace; and even to larcenies. But he could
inflict only slight punishments.
PRAEMUNIRE. In older to prevent the pope from assuming the
supremacy in granting ecclesiastical livings, a number of
statutes were made in England during the reigns of Edward I., and
his successors, punishing certain acts of submission to the papal
authority, therein mentioned. In the writ for the execution of
these statutes, the words praemunire facias, being used, to
command a citation of the party, gave not only to the writ, but
to the offence itself, of maintaining the papal power, the name
of praemunire. Co. Lit. 129; Jacob's L. D. h. t.
PRAETOR, Roman civil law. A municipal officer of Rome, so
called because, (praeiret populo,) he went before or took
precedence of the people. The consuls were at first called
praetors. Liv. Hist. III. 55. He was a sort of minister of
justice, invested with certain legislative powers, especially in
regard to the forms or formalities of legal proceedings.
Ordinarily, be aid not decide causes as a judge, but prepared the
grounds of decision for the judge and sent to, him the questions
to be decided between the parties. The judge was always chosen by
the parties, either directly, or by rejecting, under certain
rules and limitations, the persons proposes to them by the
praetor. Hence the saying of Cicero, (pro Cluentis, 43,) that no
one could be judged except by a judge of his own choice. There
were several kinds of officers called proctors. See Vicat, Vocab.
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2. Before entering on his functions he published an edict
announcing the system adopted by him for the application and
interpretation of the laws during his magistracy. His authority
extended over all jurisdictions, and was summarily expressed by
the word do, dico, addico, i, e. do I give the action, dico I
declare the law, I promulgate the edict, addico I invest the
judge with the right of judging. There were certain cases which
he was bound to decide himself, assisted by a council chosen by
himself perhaps the Decemvirs. But the greater part of causes
brought before him, be sent either to a judge, an arbitrator, or
to recuperators, (recuperatores,) or to the centumvirs, as before
stated. Under the empire the powers of the praetor passed by
degrees to the praefect of the praetorium, or the praefect of the
city; so that this magistrate, who at first ranked with the
consuls, at last dwindled into a director or manager of the
public spectacles or games.
3. Till lately, there were officers in certain cities of
Germany denominated praetors Vide 1 Kent, Com. 528.
PRAGMATIC SANCTION, French law. This expression is used to
designate those ordinances which concern the most important
object of the civil or ecclesiastical administration. Merl.
Repert, h. t.; 1 Fournel, Hist. des Avocats, 24, 38, 39. 2. In
the civil law, the answer given by the emperors on questions of
law, when consulted by a corporation or the citizens of a
province, or of a, municipality, was called a pragmatic sanction.
Lecons El. du Dr. Civ. Rom. §53. This differed from a rescript.
(q. v.)
PRAYER, chanc. pleadings. That part of a bill which asks for
relief.
2. The skill of the solicitor is to be exercised in framing
this part of the bill. An accurate specification of the matters
to be decreed in complicated cases, requires great discernment
and experience; Coop. Eq. Pl. 13; it is varied as the case is
made out, concluding always with a prayer of general relief, at
the discretion of the court. Mitf. Pl. 45.
PRAYER OF PROCESS, chanc. plead. That part of a bill which
prays that the defendant be compelled to appear and answer the
bill, and abide the determination of the court on the subject, is
called prayer of process. This prayer must contain the name's of
all Persons who are intended to be made parties. Coop. Eq. Pl.
16; Story, Eq. Pl. §44.
PRAYER FOR RELIEF, chan. pleading. This is the name of that
part of the bill, which, as the phrase imports, prays for relief.
This prayer is either general or special but the general course
is for the plaintiff to make a special prayer for particular
relief to which he thinks himself entitled, and then to conclude
with a prayer of general relief at the discretion of the court.
Story, Eq. Pl. §40; 4 Bouv. Inst. n. 4174-6.
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PREAMBLE. A preface, an introduction or explanation of what is
to follow: that clause at the head of acts of congress or other
legislatures which explains the reasons why the act is made.
Preambles are also frequently put in contracts to, explain the
motives of the contracting parties,
2. A preamble is said to be the key of a statute, to open the
minds of the makers as to the mischiefs which are to be remedied,
and the objects which are to be accomplished by the provisions of
the statutes. It cannot amount, by implication, to enlarge what
is expressly given. 1 Story on Const. B 3, c. 6. How far a
preamble is to be considered evidence of the facts it recites,
see 4 M. & S. 532; 1 Phil. Ev. 239; 2 Russ. on Cr. 720; and
see, generally, Ersk. L. of Scotl. 1, 1, 18; Toull. liv. 3, n.
318; 2 Supp. to Ves. jr. 239; 4 L. R. 55; Barr. on the Stat.
353, 370.
PRECARIOUS RIGHT. The right which the owner of a thing
transfers to another, to enjoy the same until it shall please the
owner to revoke it.
2. If there is a time fixed during which the right may be used
it is then vested for that time, and cannot be revoked until
after its expiration. Wolff, Inst. §833.
PRECARIUM. The name of a contract among civilians, by which the
owner of a thing at the request of another person, gives him a
thing to use as long as the owner shall please. Poth. h. t. n.
87. See Yelv. 172; Cro. Jac. 236; 9 Cowen, 687; Roll. R. 128;
Bac. Ab. Bailment, c; Ersk. Prin. B. 3, t. 1, n. 9; Wolff, Ins.
Nat. §333.
2. A tenancy at will is a right of this kind.
PRECATORY WORDS. Expressions in a will praying or requesting
that a thing shall be done.
2. Although recommendatory words used by a testator, of
themselves, seem to leave the devisee to act as he may deem
proper, giving him a discretion, as when a testator gives an
estate to a devisee, and adds that he hopes, recommends, has a
confidence, wish or desire that the devisee shall do certain
things for the benefit of another person; yet courts of equity
have construed such precatory expressions as creating a trust. 18
Ves. 41; 8 Ves. 380; Bac. Ab. Legacies, B, Bouv. ed.
3. But this construction will not prevail when either the
objects to be benefited are imperfectly described, or the amount
of property to which the trust should attach, is not sufficiently
defined . 1 Bro. C. C. 142; 1 Sim. 542, 556. See 2 Story, Eq.
Jur. §1070; Lewin on Trusts, 77; 4 Bouv. Inst. n. 3953.
PRECEDENCE. The right of being first placed in a certain order,
the first rank being supposed the most honorable.
2. In this country no precedence is given by law to men.
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3. Nations, in their intercourse with each other, do not admit
any precedence; hence in their treaties in one copy one is named
first, and the other in the other. In some cases of officers when
one must of necessity act as the chief, the oldest in commission
will have precedence; as when the president of a court is not
present, the associate who has the oldest commission will have a
precedence; or if their. commissions bear the same date, then
the oldest man.
4. In. the, army and navy there is an order of precedence which
regulates the officers in their command.
PRECEDENTS. the decision of courts of justice; when exactly in
point with a case before the court, they are generally held to
have a binding authority, as well to keep the scale of justice
even and steady, as because the law in that case has been
solemnly declared and determined. 9 M. R. 355.
2. To render precedents valid, they must be founded in reason
and justice; Hob. 270; must have been made upon argument, and
be the solemn decision of the court; 4 Co. 94; and in order to
give them binding effect, there must be a current of decisions.
Cro. Car. 528; Cro. Jac. 386; 8 Co. 163.
3. According to Lord Talbot, it is "much better to stick to the
known general rules, than to follow any one particular precedent,
which may be founded on reason, unknown to us." Cas. Temp. Talb.
26. Blackstone, 1 Com. 70, says, that a former decision is in
general to be followed, unless "manifestly absurd or unjust,",
and, in the latter case, ii is declared, when overruled, not that
the former sentence was bad law, but that it was not law.
4. Precedents can only be useful when they show that the case
has been decided upon a certain principle, and ought not to be
binding when contrary to such principle. If a precedent is to be
followed because it is a precedent, even when decided against an
established rule of law, there can be no possible correction of
abuses, because the fact of, their existence renders them above
the law. It is always safe to rely upon principles. See
Principle; Rewon. de 16 Vin. Ab. 499; Wesk. on Inst. h. t.: 2
Swanst. 163; 2 Jac. & W. 31; 3 Ves. 527; 2 Atk. 559; 2 P.
Wms. 258; 2 Bro. C. C. 86; 1 Ves. jr. 11; and 2 Evans Poth.
377, where the author argues against the policy of making
precedents binding when contrary to reason. See also 1 Kent,
Comm.475-77; Liv.Syst. 104-5; Gresl. Ev. 300; 16 Johns. R.
402; 20 Johns. R. 722; Cro. Jac. 527; 33 H. VII. 41; Jones,
Bailment, 46; and the articles Reason and Stare decisis.
PRECEPT. A writ directed to the sheriff or other officer,
commanding him to do something. The term is derived from the
operative praecipimus, we command.
PRECINCT. The district for which a high or petty constable is
appointed, is in England, called a precinct. Willc. Office of
Const. xii.
2. In day time all persons are bound to recognize a constable
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acting within his own precincts; after night the constable is
required to make himself known, and it is, indeed, proper he
should do so at all times. Ibid. n. 265, p. 93.
PRECIPUT, French law. An object which is ascertained by law or
the agreement of the parties, and which is first to be taken out
of property held in common, by one having a right, before a
partition takes place.
2. The preciput is an advantage, or a principal part to which
some one is entitled, praecipium jus, which is the origin of the
word preciput. Dict. de Jur. h. t.; Poth. h. t. By preciput is
also understood the right to sue out the preciput.
PRECLUDI NON, pleading. A technical allegation contained in a
replication which denies or confesses and avoids the plea. It is
usually in the following form; "And the said A B, as to the plea
of the said C D, by him secondly above pleaded, says, that he the
said A B, by reason of any thing by the said C D, in that plea
alleged, ought not to be barred from having and maintaining his
aforesaid action thereof against the said C D, because he says
that," &c. 2 Wils. 42; 1 Chit. Pl. 573.
PRECOGNITION, Scotch law. The examination of witnesses who were
present at the commission of a criminal act, upon the special
circumstances attending it, in order to know whether there is
ground for a trial, and to serve for direction to the prosecutor.
But the persons examined may insist on having their declaration
cancelled before thev give testimony at the trial. Ersk. Princ.
B. 4, t. 4, n. 49.
PRECONTRACT. An engagement entered into by a person, which
renders him unable to enter into another; as a promise or
covenant of marriage to be had afterwards. When made per verba de
presenti, it is in fact a marriage, and in that case the party
making it cannot marry another person.
PREDECESSOR. One who has preceded another.
2. This term is applied in particular to corporators who are
now no longer such, and whose rights have been vested in their
successor; the word ancestor is more usually applicable to
common persons. The predecessor in a corporation stands in the
same relation to the successor, that the ancestor does to the
heir.
3. The term predecessor is also used to designate one who has
filled an office or station before the present incumbent.
PRE-EMPTION, intern. law. The right of preemption is the right
of a nation to detain the merchandise of strangers passing
through her territories or seas, in order to afford to her
subjects the preference of purchase. 1 Chit. Com. Law, 103; 1
Bl. Com. 287.
2. This right is sometimes regulated by treaty. In that which
was made between the United States and Great Britain, bearing
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date the 10th day of November, 1794, ratified in 1795, it was
agreed, art. 18, after mentioning that the usual munitions of
war, and also naval materials should be confiscated as
contraband, that "whereas the difficulty of agreeing on precise
cases in which alone provisions and other articles not generally
contraband may be regarded as such, renders it expedient to
provide against the inconveniences and misunderstandings which
might thence arise. It is further agreed that whenever any such
articles so being contraband according to the existing laws of
nations, shall for that reason be seized, the same shall not be
confiscated, but the owners thereof shall be speedily and
completely indemnified; an the captors, or in their default-the
government under whose authority they act, shall pay to the
masters or owners of