P1:
PACE. A measure of length containing two feet and a half; the
geometrical pace is five feet long. The common pace is the length
of a step; the geometrical is the length of two steps, or the
whole space passed over by the same foot from one step to
another.
PACIFICATION. The act of making peace between two countries
which have teen at war; the restoration of public tranquillity.
TO PACK. To deceive by false appearance; to counterfeit; to
delude; as packing a jury. (q. v.) Bac. Ab. Juries, M; 12 Conn.
R. 262.
PACT, civil law. An agreement made by two or more persons on
the same subject in order to form some engagement, or to dissolve
or modify, one already made, conventio est duorum in idem
placitum consensus de re solvenda, id. est facienda vel
praestanda. Dig. 2, 14; Clef des Lois Rom. h. t.; Ayl. Pand.
558; Merl, Rep. Pacte, h. t.
PACTIONS, International law. When contracts between nations are
to be performed by a single act, and their execution is at an end
at once, they are not called treaties, but agreements,
conventions or pactions. 1 Bouv. Inst. n. 100.
PACTUM CONSTITUTAE PECUNIAE, civil law. An agreement by which a
person appointed to his creditor, a certain day, or a certain
time, at which he pro-mised to pay; or it maybe defined, simply.
an agreement by which a person promises a creditor to pay him.
2. When a person by this pact promises his own creditor to pay
him, there arises a new obligation which does not destroy the
former by which he was already bound, but which is accessory to
it; and by this multiplicity of obligations the right of the
creditor is strengthened. Poth. Ob. Pt. 2, c. 6, s. 9.
3. There is a striking conformity between the pactum
constitutae pecuniae, as above defined, and our indebitatus
assumpsit. The pactum constitutae pecuniae was a promise to pay a
subsisting debt whether natural or civil; made in such a manner
as not to extinguish the preceding debt, and introduced by the
praetor to obviate some formal difficulties. The action of
indebitalus assumpsit was brought upon a promise for the payment
of a debt, it was not subject to the wager of law and other
technical difficulties of the regular action of debt; but by
such promise, the right to the action of debt was not
extinguished nor varied. 4 Rep. 91 to 95; see 1 H. Bl. 550 to
655; Doug. 6, 7; 3 Wood. 168, 169, n. c; 1 Vin. Abr. 270;
Bro. Abr. Action sur le case, pl. 7, 69, 72; Fitzh. N. B. 94, A,
n. a, 145 G; 1 New Rep. 295; Bl. Rep. 850; 1 Chit. Pl. 89;
Toull. Dr. Civ. Fr. liv. 3, t. 3, c. 4, u. 388, 396.
PACTUM DE NON PETANDO, civil law. An agreement made, between a
creditor and his debtor that the former will not demand, from the
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latter the debt due. By this agreement the debtor is freed from
his obligation. This is not unlike the covenant not to sue, (q.
v.) of the common law. Wolff, Dr. de la Nat. §755.
PACTUM DE QUOTA LITIS. An agreement by which a creditor of a
sum difficult to recover, promises a portion, for example,
one-third, to the person who will undertake to recover it. In
general, attorneys will abstain from, making such a contract, yet
it is not unlawful.
PAGODA, comm. law. A denomination of money in Bengal. In the
computation of ad valorem duties, it is valued at one dollar and
ninety-four cent's. Act of March 2, 1799, s. 61, 1 Story's L. U.
S. 626. Vide Foreign Coins.
PAIS, or PAYS. A French word signifying country. In law, matter
in pais is matter of fact in opposition to matter of record: a
trial per pais, is a trial by the country, that is, by a jury.
PALFRIDUS, A palfrey; a horse to travel on. 1 Tho. Co. Litt.
471; F. N. B. 93.
PANDECTS, civil law. The name of an abridgment or compilation
of the civil law, made by order of the emperor Justinian, and to
which he gave the force of law. It is also known by the name of
Digest. (q. v.)
PANEL, practice. A schedule or roll containing the names of
jurors, summoned by virtue of a writ of venire facias, and
annexed to the writ. It is returned into the court whence the
venire issued. Co. Litt. 158, b.
PANNEL, Scotch law. A person, accused of a crime; one
indicted.
PAPER-BOOK, practice. A book or paper containing an abstract of
all the facts and pleadings necessary, to the full understanding
of a case.
2. Courts of error and other courts, on arguments, require that
the judges shall each be furnished with such a paper-book in the
court of king's bench, in England, the transcript containing the
whole of the proceedings, filed or delivered between the parties,
when the issue joined, in an issue in fact, is called the
paper-book. Steph. on Pl. 95; 3 Bl. Com. 317; 3 Chit. Pr. 521;
2 Str. 1131, 1266; 1 Chit. R. 277 2 Wils, R. 243; Tidd, Px.
727.
PAPER DAYS, Eng. law. Days on which special arguments are to
take place. Tuesdays and Fridays in term time are paper days
appointed by the court. Lee's Dict. of Pr. h. t.; Arch. Pr. 101.
PAPER MONEY. By paper money is understood the engagements to
pay money which are issued by governments and banks, and which
pass as money. Pardes. Dr. Com. n. 9. Bank notes are generally
considered as cash, and win answer, all the purposes of currency;
but paper money is not a legal tender if objected to. See Bank
note, Specie, Tender.
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PAR, comm. law. Equal. It is used to denote a state of equality
or equal value. Bills of exchange, stocks, and the like, are at
par when they sell for their nominal value; above par, or below
par, when they sell for more or less.
PARAGE. Equality of name or blood, but more especially of land
in the partition of an inheritance among co-heirs, hence comes
disparage and disparagement. Co. Litt. 166.
PARAGIUM. A Latin term which signifies equality. It is derived
from the adjective par, equal, and made a substantive by the
addition of agium; 1 Tho. Co. Litt. 681.
2. In the ecclesiastical law, by paragium is understood the
portion which a woman gets on her marriage. Ayl. Par. 336.
PARAMOUNT. That which is superior.
2. It is usually applied to the highest lord of the fee, of
lands, tenements, or hereditaments. F. N. B. 135. Where A lets
lands to B, and he underlets them to C, in this case A is the
paramount, and B is the mesne landlord. Vide Mesne, and 2 Bl.
Com. 91; 1 Tho. Co. Litt. 484, n. 79; Id. 485, n. 81.
PARAPHERNALIA. The name given to all such things as a woman has
a right to retain as her own property, after her hushand's death;
they consist generally of her clothing, jewels, and ornaments
suitable to her condition, which she used personally during his
life.
2. These, when not extravagant, she has a right to retain even
against creditors; and, although in his lifetime the hushand
might have given them away, he cannot bequeath such ornaments and
jewels by his will. 2 Bl. Com. 430; 2 Supp. to Ves. jr. 376; 5
Com. Dig. 230; 2 Com. Dig. 212; 11 Vin. Ab. 176; 4 Bouv. Inst.
n. 8996-7.
PARATITLA, civil law. An abbreviated explanation of some titles
or books of the Code or Digest.
PARATUM HABEO. A return made by the sheriff to a capias ad
respondendum, which signified that he had the defendant ready to
bring into court. This was a fiction where the defendant was at
large. Afterwards be was required by statute to take bail from
the defendant, and he returned cepi corpus and bail bond. But
still he might be ruled to bring in the body. 7 Penn. St. Rep.
535.
PARAVAIL. Tenant paravail is the lowest tenant of the fee, or
he who is the immediate tenant to one who holds of another. He is
called tenant paravail, because it is presumed he has the avails
or profits of the land. F. N. B. 135; 2 Inst, 296.
PARCEL, estates. Apart of the estate. 1 Com. Dig. Abatement, H
511 p. 133; 5 Com. Dig. Grant, E 10, p. 545. To parcel is to
divide an estate. Bac, Ab. Conditions, 0.
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PARCENARY. The state or condition of holding title to lands
jointly by parceners, before the common inheritance has been
divided. Litt. sec. 56. Vide 2 Bl. Com. 187; Coparcenary;
Estate In coparcenary.
PARCENERS, Engl. law. The daughters of a man or woman seised of
lands and tenements in fee simple or fee tail, on whom, after the
death of such ancestor, such lands and tenements descend, and
they enter. Litt. s. 243; Co. Litt. 164 2 Bouv. Inst. n. 1871-2.
Vide Coparceners.
PARCO FRACITO, Engl. law. The name of a writ against one who
violently breaks a pound, and takes from thence beasts which, for
some trespass done, or some other just cause, were lawfully
impounded.
PARDON, crim. law, pleading. A pardon is an act of grace,
proceeding from the power entrusted with the execution of the
laws, which exempts the individual on whom it is bestowed, from
the punishment the law inflicts for a crime he has committed. 7
Pet. S. C. Rep. 160.
2. Every pardon granted to the guilty is in derogation of the
law; if the pardon be equitable, the law is, bad; for where
legislation and the administration of the law are perfect,
pardons must be a violation of the law, But as human actions are
necessarily imperfect, the pardoning power must be vested
somewhere in order to prevent injustice, when it is ascertained
that an error has been committed.
3. The subject will be considered with regard, 1. To the kinds
of pardons. 2. By whom they are to be granted. 3. For what
offences. 4. How to be taken advantage of 5. Their effect.
4. - §1, Pardons are general or special. 1. The former are
express, when an act ofthe legislature is passed expressly
directing that offences of a certain class; shall be pardoned,
as in the case of an act of amnesty. See Amnesty. A general
pardon is implied by the repeal of a penal statute, because,
unless otherwise provided by law, an offence against such statute
while it was in force cannot be punished, and the offender goes
free. 2 Overt. 423. 2. Special pardons are those which are
granted by the pardoning power for particular cases.
5. Pardons are also divided into absolute and conditional. The
former are those which free the criminal without any condition
whatever; the. fatter are those to which a condition is annexed,
which must be performed before the pardon can have any effect.
Bac. Ab. Pardon, E; 2 Caines, R. 57; 1 Bailey, 283; 2 Bailey
516. But see 4 Call, R. 85.
6. - §2. The constitution of the United States gives to the,
president in general terms, "the power to grant reprieves and
pardons for offences against the United States." The same power
is given generally to the governors of the several states to
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grant pardons for crimes committed against their respective
states, but in some of them the consent of the legislature or one
of its branches is required.
7. - §3. Except in the case of impeachment, for which a pardon
cannot be granted, the pardoning power may grant a pardon of all
offences against the government, and for any sentence or
judgment. But such a pardon does not operate to discharge the
interest which third persons may have acquired in the judgment;
as, where a penalty was incurred in violation of the embargo
laws, and the custom house officers became entitled to one-half
of the penalty, the pardon did not discharge that. 4 Wash. C. C
R. 64. See 2 Bay, 565; 2 Whart. 440; 7 J. J. Marsh. 131.
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8. - §4. When the pardon is general, either by an act of
amnesty, or by the repeal of a penal law, it is not necessary to
plead it, because the court is bound, ex officio, to take notice
of it. And the criminal cannot even waive such pardon, because by
his admittance, no one can give the court power to punish him,
when it judicially appears there is no law to do it. But when the
pardon is special, to avail the criminal it must judicially
appear that it has been accepted, and for this reason it must be
specially pleaded. 7 Pet. R. 150, 162.
9. - §5. The effect of a pardon is to protect from punishment
the criminal for the offence pardoned, but for no other. 1
Porter, 475. It seems that the pardon of an assault and battery,
which afterwards becomes murder by the death of the person
beaten, would not operate as a pardon of the murder. 12 Pick.
496. In general, the effect of a full pardon is to restore the
convict to all his rights. But to this there are some exceptions:
1st. When the criminal has been guilty of perjury, a pardon will
not qualify him to be a witness at any time afterwards. 2d. When
one was convicted of an offence by which he became civilly dead,
a pardon did not affect or annul the second marriage of his wife,
nor the sale of his property by persons appointed to administer
on his estate, nor divest his heirs of the interest acquired in
his estate in consequence of his civil death. 10 Johns. R. 232,
483.
10. - §6. All contracts, made for the buying or procuring a
pardon for a convict, are void. And such contracts will be
declared null by a court of equity, on the ground that they are
opposed to public policy. 4 Bouv. Inst. n. 3857. Vide, generally,
Bac. Ab. h. t.; Com. Dig. h. t.; Nels. Ab. h. t.; Vin. Ab. h.
t.; 13 Petersd. Ab. h. t.; Dane's Ab. h. t.; 3 lust. 233 to
240; Hawk. b. 2, c. 37; 1 Chit. Cr. L. 762 to 778; 2 Russ. on
Cr. 595 Arch. Cr. Pl. 92; Stark. Cr. Pl. 368, 380.
PARENTAGE. Kindred. Vide 2 Bouv. Inst. n. 1955; Branch; Line.
PARENTS. The lawful father and mother of the party spoken of. 1
Murph. R. 336; 11 S. & R. 93.
2. The term parent differs from that of ancestor, the latter
embracing not only the father and mother, but every per ascending
line. It differs also from predecessor, which is applied to
corporators. Wood's Inst. 68; 7 Ves. 522; 1 Murph. 336; 6
Binn. 255. See Father; Mother.
3. By the civil law grandfathers and grandmothers, and other
ascendants, were, in certain cases, considered parents. Dict. de
Jurisp. Parente. Vide 1 Ashm. R. 55; 2 Kent, Com. 159; 5 East,
R. 223; Bouv. Inst. Index, h. t.
PARES. A man's equals; his peers. (q. v.) 3 Bl. Com. 349.
PARES CURIE, feudal law, Those vassals who were bound to attend
the lord's court were so called. Ersk. Inst. B. 2, tit. 3, s. 17.
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PARI DELICTO crim. law. In a similar offence or crime; equal in
guilt. A person who is in pari delicto with another, differs from
a particeps criminis in this, that the former always includes the
latter but the latter does not always include the former. 8 East,
381, 2.
PARI MATERIA. Of the same matter; on the same subject; as,
laws pari materia must be construed with reference to each other.
Bac. Ab. Stat. I. 3.
PARI PASSU. By the same gradation.
PARISH. A district of country of different extents. In the
ecclesiastical law it signified the territory committed to the
charge of a parson, vicar, or other minister. Ayl. Parerg. 404;
2 Bl. Com. 112. In Louisiana, the state is divided into parishes.
PARIUM JUDICIUM. The trial by jury , or by a man's peers, or
equals, is so called.
PARK, Eng. law. An enclosed chase (q.v.) extending only over a
man's own grounds. The term park signifies an enclosure. 2 Bl.
Com. 38.
PARLIAMENT. This word, derived from the French parlement, in
the English law, is used to designate the legislative branch of
the government of Great Britain, composed of the house of lords,
and the house of commons.
2. It is an error to regard the king of Great Britain as
forming a part of parliament. The connexion between the king and
the Iords spiritual, the lords temporal, and the commons, which,
when assembled in parliament, form the, three states of the
realm, is the same as that which subsists between the king and
those states - the people at large - out of parliament; Colton's
Records, 710; the king not being, in either case, a member,
branch, or coestate, but standing solely in the relation of
sovereign or head. Rot. Par. vol. iii,. 623 a.; 2 Mann. & Gr.
457 n.
PAROL. More properly parole. A French word, which means
literally, word or speech. It is used to distinguish contracts
which are made verbally or in writing not under seal, which are
called, parol. contracts, from those which are under seal which
bear the name of deeds or specialties (q. v.) 1 Chit. Contr. 1;
7 Term. R. 3 0 351, n.; 3 Johns. Cas. 60; 1 Chit. Pl. 88. It is
proper to remark that when a contract is made under seal, and
afterwards it is modified verbally, it becomes wholly a parol
contract. 2 Watts, 451; 9 Pick. 298; 13 Wend. 71.
2. Pleadings are frequently denominated the parol. In some
instances the term parol is used to denote the entire pleadings
in a cause as when in an action brought against an infant heir,
on an obligation of his ancestors, he prays that the parol may
demur, i. e., the pleadings may be stayed, till he shall attain
full age. 3 Bl. Com. 300; 4 East, 485 1 Hoffm. R. 178. See a
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form of a plea in abatement, praying that the parol may demur, in
1 Wentw. Pl. 43; and 2 Chit. Pl. 520. But a devisee cannot pray
the parol to demur. 4 East, 485.
3. Parol evidence is evidence verbally delivered by a witness.
As to the cases when such evidence will be received or rejected,
vide Stark, Ev. pt. 4, p. 995 to 1055; 1 Phil. Ev. 466, c. 10,
s. 1; Sugd. Vend. 97.
PAROL LEASES. An agreement made verbally, not in writing,
between the parties, by which one of them leases to the other a
certain estate.
2. By the English statute of frauds of 29 Car. III, c. 3, s. 1,
2, and 3, it is declared, that "all leases, estates, or terms of
years, or any uncertain interest in lands, created by livery
only, or by parol, And not put in writing, and signed by the
party, should have the force and effect of leases or estates at
will only, except leases not exceeding the term of three years,
whereupon the rent reserved during the term shall amount to two
third parts of the full improved value of the thing demised."
"And that no lease or estate, either of freehold or term of
years, should be assigned, granted, or surrendered, unless in
writing." The principles of this statute have been adopted with
some modifications, in nearly all the states of the Union. 4
Kent, Com. 95; 1 Hill. Ab. 130
PAROLE, international law. The agreement of persons who have
been taken by an enemy that they will not again take up arms
against those who captured them, either for a limited time, or
during the continuance of the war. Vattel, liv. 3, c. 8, §151.
PARRICIDE, civil law. One who murders his father; it is
applied, by extension, to one who murders his mother, his
brother, his sister, or his children. The crime committed by such
person is also called parricide. Merl. Rep. mot Parricide; Dig.
48, 9, 1, 1. 3, 1. 4.
2. This offence is defined almost in the same words in the
penal code of China. Penal Laws of China, B. 1, s. 2, §4.
3. The criminal was punished by being scourged, and afterwards
sewed in a sort of sack, with a dog, a cock, a viper, and an ape,
and then thrown into the sea, or into a river; or if there were
no water, he was thrown in this manner to wild beasts. Dig. 48,
9, 9; C. 9, 17, 1, 1. 4, 18, 6; Bro. Civ; . Law, 423; Wood's
Civ. Law, B. 3, c. 10, s. 9.
4. By the laws of France parricide is the crime of him who
murders his father or mother, whether they, be the legitimate,
natural or adopted parents of the individual, or the murder of
any other legitimate ascendant. Code Penal, art. 297. This crime
is there punished by the criminal's being taken to the place of
execution without any other garment than his shirt, barefooted,
and with his head covered with a black veil. He is then exposed
on the scaffold while an officer of the court reads his sentence
to the spectators; his right hand is then cut off, and he is
immediately put to death. Id. art. 13.
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5. The common law does not define this crime, and makes no
difference between its punishment, and the punishment of murder.
1 Hale's P. C. 380; Prin. Penal Law, c. 18, §8, p. 243; Dalloz,
Dict. mot Homicide.
PARSON, eccles. law. One who has full possession of all the
rights of a parochial church.
2. He is so called because by his person the church, which is
an invisible body, is represented: in England he is himself a
body corporate it order to protect and defend the church (which
he personates) by a the minority, if required to bring Story on
Partn. §489. 1 Bouv. Inst. n. 1217. 398; 5 Com. Dig. 346.
PARTICEPS FRAUDIS. fraud. Both parties be in pari delicto is
not allowed to allege his own turpitude in such cases, when
defendant at law, or prevented from alleging it, when plaintiff
in equity, whenever the refusal to execute the contract at law,
or the refusal to relieve against it in equity, would give effect
to the original purpose, and encourage the parties engaged, in
such transactions. 4 Rand. R. 372; 1 Black. R. 363; 2 Freem.
101.
PARTICULAR AVERAGE. This term, partipular average, has been
condemned as not being exact. See Average. It denotes, in
general, every kind of expense or damage, short of total loss
which regards a particular concern, and which is to be borne by
the proprietor of that concern alone. Between the insurer and
insured, the term includes losses of this description, as far as
the underwriter is liable. Particular average must not be
understood as a total loss of a part; for these two kinds of
losses are perfectly distinct from each other. A total loss of a
part may be recovered, where a particular average would not be
recoverable. See Stev. on Av. 77.
PARTICULAR AVFRMENT, pleading. Vide Avermzent.
PARTICULAR CUSTOM. A particular custom is one which only
affects the inhabitants of some particular district. To be good,
a particular custom must possess these requisites: 1. It must
have been used so long that the memory of man runneth not to the
contrary. 2. It must have been continued. 3. It must have been
peaceable. 4. It must be reasonable. 5. It must be certain. 6. It
must be consistent with itself. 7. lt must be consistent with
other customs. 1 Bl. Com. 74, 79.
PARTICULAR ESTATE. An estate which is carved out of a larger
and which precedes a remainder; as, an estate for years to A,
remainder to B for life; or, an estate, for life to A, remainder
to' B in tail: this precedent estate is called the particular
estate. 2 Bl. Com. 165; 4 Kent, Com. 226; 16 Vin. Abr. 216; 4
Com. Dig. 32; 5 Com. Dig. 346.
PARTTICULAR, LIEN, contracts. A right which a person has to
retain property in respect of money or labor expended on such
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particular property. For example, when a tailor has made garments
out of cloth delivered to him for the purpose, he is not bound to
part with the clothes until his employer, has paid him for his
services; nor a ship carpenter with a ship which he has
repaired; nor can an engraver be compelled to deliver the seal
which he has engraved for another, until his compensation has
been paid. 2 Roll. Ab. 92; 3 M. & S. 167; 14 Pick. 332; 3
Bouv. Inst. n. 2514. Vide Lien.
PARTICULARS, practice. The items of which the accounts of one
of the parties is composed, and which are frequently furnished to
the opposite party in a bill of particulars. (q. v.)
PARTIES, contracts. Those persons who engage themselves to do,
or not to do the matters and things contained in an agreement.
2. All persons generally can be parties to contracts, unless
they labor under some disability.
3. Consent being essential to all valid contracts, it follows
that persons who want, first, understanding; or secondly,
freedom to exercise their will, cannot be parties to contracts.
Thirdly, persons who in consequence of their situation are
incapable to enter into some particular contract. These will be
separately considered.
4. - §1. Those persons who want understanding, are idiots and
lunatics; drunkards and infants,
5. - 1. The contracts of idiots and lunatics, are riot binding;
as they are unable from mental infirmity, to form any accurate
judgment of their actions; and consequently, cannot give a
serious and sufficient consideration to any engagement. And
although it was formerly a rule that the party could not stultify
himself; 39 H. VI. 42; Newl. on Contr. 19 1 Fonb. Eq. 46, 7;
yet this rule has been so relaxed, that the defendant may now set
up this defence. 3 Camp. 128; 2 Atk. 412; 1 Fonb. Eq. n. d.;
and see Highm. on Lun. 111, 112; Long on Sales, 14; 3 Day's
Rep. 90 Chit. on Contr. 29, 257, 8; 2 Str. 1104.
6. - 2. A person in a state of complete intoxication has no
agreeing mind; Bull. N. P. 172; 3 Campb. 33; Sugd. Vend. 154
Stark. Rep. 126; and his contracts are therefore void,
particularly if he has been made intoxicated by the other party.
1 Hen. & Munf. 69; 1 South. Rep. 361; 2 Hayw. 394; see Louis.
Code, art. 1781; 1 Clarke's R. 408.
7. - 3. In general the contract of an infant, however fair and
conducive to his interest it may be, is not binding on him,
unless the supply of necessaries to him be the object of the
agreement; Newl. Contr. 2; 1 Eq. Cas. Ab. 286; l Atk. 489; 3
Atk. 613; or unless he confirm the agreement after he shall be
of full age. Bac. Abr. Infancy; I 3. But he may take advantage
of contracts made with him, although the consideration were
merely the infant's promise, as in an action on mutual promises
to marry. Bull. N. P. 155; 2 Str. 907; 1 Marsh. (Ken.) Rep. 76;
2 M. & S. 205. See Stark. Ev. pt. iv. page 724; 1 Nott & McCord,
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197; 6 Cranch, 226; Com. Dig. Infant; Bac. Abr. Infancy and
Age; 9 Vin. Ab. 393, 4; Fonbl. Eq. b. 1 c. 2; §4, note b; 3
Burr. 1794; 1 Mod. 25; Stra. 937; Louis. Code, article 1778.
8. - §2. Persons who have understanding, who, in law, have not
freedom to exercise their will, are married women; and persons
under duress.
9. - 1. A married woman has, in general, no power or capacity
to contract during the coverture. Com. Dig. Baron & Feme, W;
Pleader, 2 A 1. She has in legal contemplation no separate
existence, her hushand and herself being in law but one person.
Litt. section 28; see Chitty on Cont. 39, 40. But a contract
made with a married woman, and for her benefit, where she is the
meritorious cause of action, as in the instance of an express
promise to the wife, in consideration of her personal labor, as
that she would cure a wound; Cro. Jac. 77; 2 Sid. 128; 2 Wils.
424; or of a bond or promissory note, payable on the face
thereof to her, or to herself and hushand, may be enforced by the
hushand and wife, though made during the coverture. 2 M. & S.
396, n. b.; 2 Bl. Rep. 1236; 1 H. Black. 108. A married woman
has no original power or Authority by virtue of the marital tie,
to bind her bushand by any of her contracts. The liability of a
bushand on his wife's engagements rests on the idea that they
were formed by his authority; and if his assent do not appear by
express evidence or by proof of circumstances from which it may
reasonably, be inferred, he is not liable. 1 Mod. 125; 3 B. & C.
631; see Chitty on Cont. 39 to 50.
10. - 2. Contracts may be avoided on account of duress. See
that word, and also Poth. Obl. P. 1, c. 1, s. 1, art. 3, §2.
11. - §3. Trustees, executors, administrators, guardians, and
all other, persons who make a contract for and on behalf of
others, cannot become, parties to such contract on their own.
account; nor are they allowed in any case to purchase the trust
estate for themselves. 1 Vern. 465; 2 Atk. 59; 10 Ves. 3; 9
Ves. 234; 12 Ves. 372, 3 Mer. Rep. 200; 6 Ves. 627; 8 Bro. P.
C. 42 10 Ves. 381; 5 Ves. 707; 13 Ves. 156; 1 Pet. C. C. R.
373; 3 Binn. 54; 2 Whart. 53; 7 Watts, 387; 13 S. & R, 210;
5 Watts, 304; 2 Bro. C. C. 400; White's L. C. in Eq. *104-117;
9 Paige, 238, 241, 650, 663; 1 Sandf. R. 251, 256; 3 Sandf. R.
61; 2 John. Ch. R. 252; 4 How. S. C. 503; 2 Whart. 53, 63; l5
Pick. 24, 31. As to the transactions between attorneys and others
in relation to client's property, see 2 Ves. jr. 201; 1 Madd.
Ch. 114; 15 Ves. 42; 1 Ves. 379; 2 Ves. 259. The contracts of
alien enemies may in, general be avoided, except when made under
the license of the government, either express or implied. 1 Kent,
Com. 104. See 15 John. 6; Dougl. 641. As to the persons who make
contracts in equity, see Newl. Cont. c. 1, pp. l to 33.
PARTIES TO ACTIONS. Those persons who institute actions for the
recovery of their rights, and those persons against whom they are
instituted, are the parties to the actions; the former are
called plaintiffs, and the latter, defendants. The term parties
is understood to include all persons who are directly interested
in the subject-matter in issue, who have right to make defence,
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control the proceeding, or appeal from the judgment. Persons not
having these rights are regarded as strangers to the cause. 20
How. St. Tr. 538, n.; Greenl. Ev. §523
2. It is of the utmost importance in bringing actions to have
proper parties, for however just and meritorious the claim may
be, if a mistake has been made in making wrong persons, either
plaintiffs or defendants, or including too many or too few
persons as parties, the plaintiff may in general be defeated.
3. Actions are naturally divided into those which arise upon
contracts, and those which do not, but accrue to the plaintiff in
consequence of some wrong or injury committed by the defendant.
This article will therefore be divided into two parts, under
which will be briefly considered, first, the parties to actions
arising upon contracts; and, secondly, the parties to actions
arising upon injuries or wrongs, unconnected with contracts,
committed b the defendant.
4. - Part I. Of parties to actions arising on contracts. These
are the plaintiffs and the defendants.
5. - Sect. 1. Of the plaintiffs. These will be considered as
follows:
§1. Between the original contracting parties. An action. on a
contract, whether express or implied, or whether it be by parol,
or under seal, or of record, must be brought in the name of the
party in whom the legal interest is vested. 1 East, R. 497; and
see Yelv. 25, n. l; 13 Mass. Rep. 105; 1 Pet. C. C. R. 109; 1
Lev. 235; 3 Bos. & Pull. 147; 1 Ii. Bl. 84; 5 Serg. & Rawle,
27; Hamm. on Par. 32; 2 Bailey's R. 55; 16 S. & R. 237,; 10
Mass. 287; 15 Mass. 286 10 Mass. 230; 2 Root, R. 119.
6.- §2. Of the number of plaintiffs who must join. When a
contract is made with several, if their legal interests were
joint, they must all, if living, join in the action for the
breach of the contract. 1 Saund. 153, note 1; 8 Serg. & Rawle,
308; 10 Serg. & Rawle, 257; 10 East, 418; 8 T. R. 140; Arch.
Civ. Pl. 58; Yelv. 177, note 1. But dormant partners need not
join their copartners. 8 S. & R. 85; 7 Verm. 123; 2 Verm. 65;
6 Pick. 352; 4 Wend. 628; 8 Wend. 666; 3 Cowen, 84; 2 Harr. &
Gill, 159. When a contract is made and a bond is given to a firm
by a particular name, as A B and Son, the suit must be brought by
the actual partners, the two sons of A B, t-he latter having been
dead several years at the time of making the contract. 2 Campb.
548. When a person who has no interest in the contract is joined
with those who have, it is fatal. 19 John. 213 2 Penn. 817; 2
Greenl. 117.
7. - §3. When the interest of the contract has been assigned.
Some contracts are assignable at law; when these are assigned,
the assignee may maintain an action in his own name. Of this kind
are promissory notes, bills of exchange, bail-bonds,
replevin-bonds; Hamm. on Part. 108; and covenants running with
the land pass with the tenure, though not made with assigns. 5
Co. 24; Cro. Eliz., 552; 3 Mod. 338; 1 Sid. 157; Hamm, Part.
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116; Bac. Abr.; Covenant, E 5. When a contract not is signable
at law has been assigned, and a recoverly on such contract is
sought, the action must be in the name of the assignor for the
use of the assignee.
8. - §4. When one or more of several obligees, &c., is dead.
When one or more of several obligees, covenantees, partners or
others, haviug a joint interest in the contract; not running
with the land, dies, the action must be brought in the name of
the survivor, and that fact averred in the declaration. 1 Dall.
65, 248; 1 East, R. 497; 2 John. Cas. 374; 4 Dalt. 354; Arch.
Civ. Pl. 54, 5; Addis. on Contr. 285; 1 Chan. Rep. 31; Yelv.
177.
9. - §5. In the case o executors and administrators. When a
personal contract, or a covenant not running with the land, has
been made with one person only, and he is dead, the action for
the breach of it must be brought in the name of the executor or
administrator in whom the legal interest in the contract is
vested; 2 H. Bl. 310; 3 T. R. 393; and all the executors or
administrators must join. 2 Saund. 213; Went.95; 1 Lev.161; 2
Nott & McCord, 70; Hamm. on Part. 272.
10. - §6. In the case of bankruptcy or insolvency. In the case
of the bankruptcy or insolvency of a person who is beneficially
interested in the performance; of a contract made before the act
of bankruptcy or before, the assignment under the insolvent laws,
the action should be brought in the name of his assignees. 1
Chit. Pl. 14; 2 Dall. 276; 3 Yeates, 520; 7 S. & R. 182; 5 S.
& R. 394; 9 S, & R. 434. See 3 Salk. 61; 3 T. R. 779; Id. 433;
Hamm. on Part. 167; Com. Dig. Abatement, E 17.
11. - §7. In case of marriage. This part of the subject will be
considered with reference to tbose cases. 1st. When the hushand
and wife, must join. 2d. When the hushand must sue alone. 3d.
When the wife must sue alone. 4th. When they may join or not at
their election. 5th. Who is to sue in the case of the death of
the hushand or wife. 6th. When a woman marries, lis pendens.
12. - 1. To recover the chose in action of the wife, the
hushand must, in general, join, when the cause of action would
survive. 3 T. R. 348; 1 M. & S. 180; Com. Dig. Baron & Feme, V;
Bac. Ab. Baron & Feme, K; 1 Yeates' R. 551; 1 P. A. Browne's R.
263; 1 Chit. Pl. 17.
13. - 2. In general the wife cannot join in any action upon a
contract. made during coverture, as for work and labor, money
lent, or goods sold by her during that time, 2 Bl. Rep. 1239;
and see 1 Salk. 114; 2 Wils. 424.; 9 East, 412; 1 Str. 612; 1
M. & S. 180; 4 T. R. 516; 3 Lev. 103; Carth. 462; Ld. Raym.
368; Cro, Eliz. 61; Com. Dig. Baron & Feme, W.
14. - 3. When the hushand is civiliter mortuus, see 4 T. Rep.
361; 2 Bos. & Pull. 165; 4 Esp. R. 27; 1 Selw. N. P. 286;
Cro. Eliz. 1519; 9 East, R. 472; Bac. Ab. Baron & Feme, M.;
or, as has been decided in England, when he is an alien and has
left the country, or has never been in it, the wife may, on her
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own separate contracts, sue alone. 2 Esp. R. 544; 1 Bos. & Pull.
357; 2 Bos. & Pull. 226; 1 N. R. 80; 11 East, R. 301; 3 Camp.
R. 123; 5 T. R. 679. But the rights of such hushand being only
suspended, the disability may be removed, in one case, by a
pardon, and, in the other, by the hushand's return, and then: he
must be joined. Broom on Part. s. 114.
15. - 4. When a party being indebted to a wife dum sola, after
the marriage gives a bond to the hushand and wife in
consideration of such debt, they may join, or the hushand may sue
alone on such contract. 1 M. & B. 180; 4 IT. R. 616 1 Chit. Pl.
20.
16. - 5. Upon the death of the wife, if the hushand survive, he
may sue for, anything he became entitled to during the coverture;
as for rent accrued to the wife during the coverture. 1 Rolle's
Ab. 352, pl. 5; Com. Dig. Baron & Feme, Z; Co. Litt. 351, a, n.
1. But the hushand cannot sue in his own right for the choses in
action of the wife, belonging to her before coverture. Hamm. on
Part. 210 to 215.
17. When the wife survives the hushand, she may sue on all
contracts entered into with her before coverture, which remain
unsatisfied; and she may recoverall arrears of rent of her real
estate, which became due during the coverture, or their joint
demise. 2 Taunt. 181; 1 Roll's Ab. 350 d.
18. - 6. When a suit is instituted by a single woman, or by her
and others, and she afterwards marries, lis pendens, the suit
abates. 1 Chit. Pl. 437; 14 Mass. R. 295; Brayt. R. 21.
19. - §8. When the plaintiff, is a foreign government, it must
have been recognized by the government of this country to entitle
it to bring an action. 3 Wheat. R. 324; Story, Eq. Pl. §55. See
4 Cranch, 272; 9 Ves. 347; 10 Ves. 354; 11 Ves. 283; Harr.
Dig. 2276.
20. - Sect. 2. Of the defendants. These will be considered in
the following order: §1. Between the original parties. The
action upon an express contract, must in general be brought
against the party who made it. 8 East, R. 12. On implied
contracts against the person subject to the legal liability.
Ramm. Part. 48; 2 Hen. Bl. 563. Vide 6 Mass. R. 253; 8 Mass.
Rep. 198; 11 Mass. R. 335; 6 Binn. R. 234; 1 Chit. Pl. 24.
21. - §2. Of the number of defendants. For the breach of a
joint contract made by several parties, they should all be made
defendants; 1 Saund: 153, note 1; Id. 291 b, n. 4; even
though one be a bankrupt or insolvent. 2 M. & S. 23. Even an
infant must be joined, unless the contract as to him be entirely
void. 3 Taunt. 307; 5 John R. 160. Vide 5 John. R. 280; 11
John. R. 101; 5 Mass. R. 270; 1 Pick. 500. When a joint
contractor is dead, the suit should be brought against the
survivor, 1 Saund. 291, note 2. The misjoinder of defendants in
an action ex contractu, by joining one who is not a contractor,
is fatal. 3 Conn. 194; Pet. C. C. 16; 2 J. J. Marsh. 88; 1
Breese, 128; 2 Rand. 446; 10 Pick. 281.
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22. - 3. In case of a change of credit, and of covenants
running with the land, &c. In general in the case of a mere
personal contract, the action for the breach of it, cannot be
brought against the person to whom the contracting party has
assigned his interest, and the original party can alone be sued;
for example, if two partners dissolve their partnership, and one
of them covenant with the other that he will pay all the debts, a
creditor may nevertheless sue both. Upon a covenant running with
land, which must concern real property, or the estate therein; 3
Wils. 29; 2 H. Bl. 133; 10 East, R. 130; the assignee of the
lessee is liable to an' action for a breach of the covenant after
the assignment of the estate to him, and while the estate remaim
in him, although he have - not take possession. Bac. Ab.
Covenant, E 34; 3 Is. 25; 2 Saund. 304, n. 12; Woodf. L. & T.
113; 7 T. R. 312; Bull. N. P. 159; 3 Salk. 4; 1 Dall. R.
210,; 1 Fonbl. Eq. 359, note y; Hamm. N. P. 136.
23. - §4. When one of several obligers, &c. is dead. When the
parties were bound by a joint contract, and one of them dies, his
executor or administrator is at law discharged from liability,
and the survivor alone can be sued. Bac. Ab. Obligation, D 4;
Vin. Ab. Obligation, P 20; Carth. 105; 2 Burr. 1196. And when
the deceased was a mere surety, his executors are not liable even
in equity. Vide 1 Binn. R. 123.
24. - §5. In the case of executors an administrators. When the
contracting party is dead, his executor or administrator, or, in
case of a joint contract, the executor or administrator of the
survivor, is the party to be made defen-dant. Ham. on Part. 156.
On a joint contract, the executors of the deceased contractor,
the other surviving, are discharged at law, and no action can be
supported against them; 6 Serg. & R. 262; 2 Whart. R. 344; 2
Browne, Rep. 31; and, if the deceased joint contractor was a
mere surety, his representatives are not liable either at, law or
in equity. 2 Serg. & R. 262; 2 Whart. 344; P. A. Browne's R.
31. All the executors must be sued jointly; when administration
is taken on the debtor's estate, all his administrators must be
joined, and if one be a married woman, her hushand must also be a
party. Cro. Jac. 519.
25. - §6. In the case of bankruptcy or insolvency. A discharged
bankrupt cannot be sued. A discharge under the insolvent laws
does not protect the property of the insolvent, and he may in
general be sued on his contracts, though he is not liable to be
arrested for a debt which was due and not contingent at the date.
of his discharge. Dougl. 93; 8 East, R. 311; 1 Saund. 241, n.
5; Ingrah. on Insol. 377.
26. - §7. In case of marriage. This head will be divided by
considering, 1. When the bushand and wife must be joined. 2. When
the hushand must be sued, alone. 3. When the wife must be sued
alone. 4. When the hushand and wife may be joined or not at the
election of the plaintiff. 5. Who is to be sued in case of the
death of the hushand or wife. 6. Of actions commenced against the
wife dum sola, which are pending at her marriage.
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27. - 1. When a feme sole who has entered into a contract
marries, the hushand and wife must in general be jointly sued. 7
T. R. 348; All. 72; 1 Keb. 281; 2 T. R. 480; 3 Mod. 186; 1
Taunt. 217; 7 Taunt. 432; 1 Moore, 126; aid, s6e 8 Johns. R.
2d ed. 115.; 15 Johns. R. 403, 483; 17 Johns. Rep, 16't;- 7
Mass. R. 291 - Com. Dig. Pleader, 2 A 2-; 1 Bingh. R. 60. But if
the hushand be away, or live separate from his wife, she may, on
a contract of which she is the meritorious cause, bring an action
in the Paine of her hushand, on indemnitying the latter for
costs. 4 B. & A. 419; 2 C. & M. 388 Addis. on Contr. 342. And,
on such contract, she may sue as a feme sole when her hushand is
civiliter inortu'us. Addis. on Contr. 342 1 Salk. 116; 1 Lord
Raym. 147; 2 M. & W. 65; Moore, 851.
28. - 2. When the wife cannot be considered either in person,
or property as creating the cause of action, as in the case of a
mere personal contract made during the coverture, the hushand
must be sued alone. Com. Dig. Pleader, 2 A 2; 8 T. R. 545; 2 B.
& P. 105; Palm. 312; 1 Taunt. 217; 4 Price, 48; 16 Johns. R.
281.
29. - 3. The wife can in general be sued alone, in the same
cases where she can sue alone, the cases being reversed.
30. - 4. When the hushand, in consequence of some new
consideration, undertakes to pay a debt of the wife dum sola, he
may be sued alone, or the hushand and wife. may be made joint
defendants. All. 73; 7 T. R. 349; vide other cases in Com. Dig.
Baron & Feme, Y; 1 Rolle's Ab. 348, pl. 45, 50; Bac. Ab. Baron
& Feme, L.
31. - 5. Upon the death of the wife, her executor, when she has
appointed one under a power, or her administrator, is alone
responsible for a debt or duty she contracted dum sola. The
hushand, as such, is not liable. Com. Dig. Baron & Feme, 2 C; 3
Mod. 186; Rep. Temp. Talb. 173; 3 P. Wms. 410. When the wife
survives, she may be sued for her contracts made before
coverture. 7 T. R. 350; 1 Camp. R. 189.
32. - 6. When a single woman, being sued, marries Iis pendens,
the plaintiff may proceed to judgment, as if she were a feme
sole. 2 Rolle's R. 53; 2 Str, 811.
33. Part 2. Of parties to actions in form ex delicto. These are
plaintiffs and defendants.
34. - Sect. 1. Of plaintiffs. These will be separately,
considered as follows:
35. - §1. With reference to the interest. Of the plaintiff. The
action for a tort must, in general, be brought in the name of the
party whose legal right has been affected, 8 T. R. 330; vide 7
T. R. 47; 1 East, R. 244; 2 Saund. 47 d; Hamm. on Part. 35, 6;
6 Johns. R. 195;.10 Mass. R. 125 10 Serg. & Rawle, 357.
36. - §2. With reference to the number of plaintiffs. It is a
general rule that when an injury is done to the property of two
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or more joint owners, they must join in the action; and even
when the property is several, yet when the wrong has caused a
joint damage, the parties must join in the action. 1 Saund. 291,
g. When suits are brought by tenants in common, against strangers
for the recovery of the land, inasmuch as they have several
titles, they cannot agreeably to the rules of the common law,
join, but must bring separate actions; and this seems to be the
rule in Missouri. 1 Misso. R. 746. This rule has been changed in
some of the states. In Connecticut, when the plaintiff claims on
the title of all the tenants, he recovers for their benefit, and
his possession will be theirs. 1 Swift's Dig. 103. In
Massachusetts, Mass. Rev. St. 611, and Rhode Island, R. I. Laws,
208, all the tenants or any two may join or any one may sue
alone. In Tennessee they usually join. 2 Yerg. R. 228.
37. When personal reputation is the object affected, two or
more cannot join as plaintiffs in the action, although the mode
of expression in which the slander was couched comprehended them
all; as when a man addressing himself to three, said, you have
murdered Peter. Dyer, 191, pl. 112; Cro. Car. 510; Goulds. pl.
6, p. 78. The reason of this is obvious, no one has any interest
in the character of the others, the damages are, therefore,
several to each.
38. - §3. In general, rights or causes of action arising ex
delicto are not assignable.
39. - §4. When one of several parties who had an interest is
dead. In such case the action must be instituted by the survivor.
1 Show. 188; S. C. Carth. 170.
40. - §5. When the party injured is dead. The executors or
administrators cannot in general recover damages for a tort, when
the, action must be ex delicto, and the plea to it is not guilty.
Vide the article Actio personalis moritur cum persona, where the
subject is more fully examined.
41. - §6. In case of insolvency. The statutes generally
authorize the trustee or assignee of an insolvent to institute a
suit in his own name for the recovery of the rights and property
of the insolvent. 6 Binn. 189; 8 Serg. & Rawle, 124. But for
torts to the person of the insolvent, as for slander, the trustee
or assignee cannot sue. W. Jones' Rep. 215.
42.- §7. When the tort has been committed, against a woman dum
sola who afterwards married. A distinction is made between those
injuries committed before and those which take place during
coverture. For injuries to the person, personal or real property
of the wife, committed before coverture, when the cause of action
would survive to the wife, she must join in the action. 3 T. R.
627; Rolle's Ab. 347; Com. Dig. Baron & Feme, V. For an injury
to the person of the wife during coverture, by battery, or to her
character, by slander, or for any other such injury, the wife
must be joined with her hushand in the suit; when the injury is
such that the hushand receives a separate damage or loss, as if
in consequence of the battery, he has been deprived of her
society or been put to expense, he may bring a separate action,
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in his own name; and for slander of the wife, when words are not
actionable of themselves, and the hushand has received some
special damages, the hushand must sue alone. 1 Lev. 140; 1 Salk.
119; 3 Mod. 120.
43. - Sect. 2. Of the defendants. §1. Between the orginal
parties. All natural persons are liable to be sued for their
tortious acts, unconnected with or in disaffirmance of a
contract; an infant is, therefore, equally liable with an adult
for slander, assaults aud batteries, and the like; but the
plaintiff cannot bring an action ex delicto which arose out of a
contract, and by that means charge an infant for a breach of a
contract. The form is of no consequence; the only question is
whether the action arose out of contract or otherwise. A
plaintiff who hired a horse to an infant, and the infant by hard,
improper and injudicious driving, killed the horse,, cannot
maintain an action ex delicto to recover damages for a breach of
this contract. 8 Rawle's R. 351; 6 Watts' R. 9; 8 T. R. 385;
Hamm. N. P. 267. But see contra, 6 Cranch,226; 15 Mass. 359; 4
McCord, 387. Vide Infant.
44. - §2. As to the number of defendants. There are torts
which, when committed by several, may authorize a joint action
against all the parties; but when in legal contemplation several
cannot concur in the act complained of, separate actions must be
brought against each; the cases of several persons joining in
the publication of a libel, a malicious prosecution, or an
assault and battery, are cases of the first kind verbal slander
is of the second. 6 John. R: 32. In general, When the parties
have committed a tort which might be committed by several, they
may be jointly sued, or the plaintiff may sue one or more of them
and not sue the others, at his election. Bac Ab. Action Qui Tam,
D; Roll. Ab. 707; 3 East, R. 62.
45. - §3. When the interest has been assigned. A liability for
a tort cannot well be assignee; but an estate may be assigned on
which was erected a nuisance, and the assignee will be liable for
continuing it, after having possession of the estate. Com. Dig.
Case, Nuisauce, B; Bac. Ab. Actions, B; 2 Salk. 460; 1 B. & P.
409.
46.- 4. When the wrongdoer is dead. In this case the remedy for
wrongs ex delicto, and unconnected with contract, cannot in
general be maintained. Vide Actio personalis moritur cum persona.
47. - §5. In case of insolvency. Insolvency does not discharge
the right of action of the plaintiff in any case; it merely
liberates the defendant from arrest when he has received the
benefit of, and been discharged under, the insolvent laws; an
insolvent may therefore be sued for his torts committed before
his discharge.
48. - §6. In case of marriage. Marriage does not affect or
change the liabilities of the hushand and he is alone to be sued
for his torts committed either before or during the coverture.
But it is otherwise with the wife; after her marriage she has no
personal property to pay the damages which may be recovered, and
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she cannot even appoint an attorney to defend her. For her torts
committed by her before the marriage, the action must be against
the hushand and wife jointly. Bac. Ab. Baron and Feme, L; 5
Binn. 43. They must also be sued jointly for the torts of the
wife during the coverture, as for slander, assault and battery,
&c. Bac. Ab. Baron and Feme, L. See, generally, as, to parties to
actions,, 3 United States Dig. Pleading, I, and Promissory Note,
XVI.; Bouv. Inst. Index, h. t.
PARTIES TO A SUIT IN EQUITY. The person who seeks a remedy in
chancery by suit, commonly called a plaintiff, and the person
against whom the remedy is sought, usually denominated the
defendant, are the parties to a suit in equity.
2. It is of the utmost importance, that there should be proper
parties; and therefore no rules connected with the science of
equity pleading, are so necessary to be attentively considered
and observed, as those which relate to the persons who are to be
made parties. to a suit, for when a mistake in this respect is
discovered at the hearing of the cause, it may sometimes be
attended with defeat, and will, at least, be followed by delay
and expense. 3 John. Ch. R. 555; 1 Hopk. Ch. R. 566; 10 Wheat.
R. 152.
3. A brief sketch will be here given by considering, 1. Who may
be plain-tiffs. 2. who may be made defendants. 3. The number of
the parties.
4. - §1. Of the plaintiff. Under this head will be considered
who may sue in equity: and,
5. - 1. The government, or as the style is in England, the
crown) may sue in a court of equity, not only in suits strictly
on behalf of the government, for its own peculiar rights and
interest, but also on behalf of the rights and interest of those,
who partake of its prerogatives, or claim its peculiar
protection. Mitf. Eq. Plead. by Jeremy, 4, 21-24; Coop. Eq. 21,
101. Such suits are usually brought by the attorney general.
6.- 2. As a general rule all persons, whether natural or
artificial, as corporations, may sue in equity; the exceptions
are persons who are not sui juris, as a person not of full age, a
feme covert, an idiot, or lunatic.
7. The incapacities to sue are either absolute, or partial.
8. The absolute, disable the party to sue during their
continuance; the partial, disable the party to sue by himself
alone, without the aid of another. In the United States, the
principal ab solute incapacity, is alienage. The alien, to be
disabled to sue in equity, must be an alien enemy, for an alien
friend may sue in chancery. Mitf. Equity, PI, 129; Coop. Equity
Pl. 27. But still the subject matter of the suit may. disable an
alien to sue. Coop. Eq. Pl. 25; Co. Lit. 129 b. An alien
sovereign or an alien corporation may maintain a suit in equity
in this country. 2 Bligh's Rep. 1, N. S.; 1 Dow. Rep.. 179, N.
S.; 1 Sim. R. 94; 2 Gall. R. 105; 8 Wheat. Rep. 464; 4 John.
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Ch. Rep. 370. In case if a foreign sovereign, he must have been
recognized by the government of this country before he can sue.
Story's Eq. pl. §55; 3 Wheat. Rep. 324; Cop. Eq. Pl. 119
9. Partial incapacity to sue exists in the case of infants, of
married women, of idiots and lunatics, or other persons who are
incapable, or are by law specially disabled to sue in their own
names; as for example, in Pennsylvania, and some other states,
habitual drunkards, who are under guardianship. 10.-1. An infant
cannot, by himself, exhibit a bill, not only on account of his
want of discretion, but because of his inability to bind himself
for costs. Mitf. Eq. Pl. 25. And when an infant sues, he must sue
by his next friend. Coop, Eq. 27; 1 Sm. Chan. Pl. 54. But as the
next friend may sometimes bring a bill. from improper motives,
the court will, upon a proper application, direct the master to
make inquiry on this subject, and if there be reason to believe
it be not brought for the benefit of the infant, the proceedings
will be stayed. 3 P. Wms. 140; Mitf. Eq. Pl. 27; Coop. Eq. Pl.
28.
11. - 2. A feme covert must, generally, join with her hushand;
but when he has abjured the realm, been transported for felony,
or when he is civilly dead, she may sue as a feme sole. And when
she has a separate claim, she may even sue her hushand, with the
assistance of a next friend of her own selection. Story's Eq. Pl.
§61; Story's Eq. Jur. §1368; Fonbl. Eq. b. 1, c. 2, §6, note p.
And the hushand may himself sue the wife.
12. - 3. Idiots and lunatics are generally under the
guardianship of persons who are authorized to bring a suit in the
idiot's name, by their guardian or committee.
13. - §2. Of the defendant. 1. In general, those persons who
may sue in equity, may be sued. Persons sui juris may defend
themselves, but those under an absolute or partial inability, can
make defence only in a particular manner. A bill may be exhibited
against all bodies politic or corporate, against all persons not
laboring under any diability, and all persons subject to such
incapacity, as infants, married women, and lunatics, or habitual
drankards.
14. - 2. The government or the state, like the king in England,
cannot be sued. Story, Eq. Pl. §69.
15. - 3. Bodies politic or corporate, like persons sui juris,
defend a suit by themselves.
16. - 4. Infants institute a suit, as has been seen, by next
friend, but they must defend a suit by guardian appointed by the
court, who is usually the nearest relation, not concerned in
interest, in the matter in question. Mitf. Eq. Pl. 103; Coop.
Eq. Pl. 20, 109; 9 Ves. 357; 10 Ves. 159; 11 Ves. 563; 1
Madd. R. 290; Vide Guardian, n. 6.
17. - 5. Idiots and lunatics defend by their committees, who,
in ordinary circumstances, are appointed guardians ad litem, for
that purpose, as a matter of course. Mitf. Eq. Pl. 103; Coop.
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Eq. Pl. 30, 32; Story's Eq. Pl. SS70; Shelf on Lun. 425.; and
vide 2 John. Ch. R. 242, where, Chancellor Kent held, that the
idiot need not be made a party as defendant to a bill for the
payment of his debts, but his committee only. When the idiot or
lunatic has no committee, or the latter has an interest adverse
to that of the lunatic or idiot, a guardian ad litem will be
appointed Mitf. Eq. Pl. 103;; Story's Eq. Pl. §70.
18. - 6. In general, a married woman, when she is sued, must be
joined with her hushand, and their answer must also be joint. But
there axe exceptions to this rule in both its requirements.
19. - 1. A married woman may be made a defendant, and answer as
a feme sole, in some instances, as when her hushand is plaintiff
in the suit, and sues her as defendant, and from the like
necessity, when the hushand is an exile or has abjured the realm,
or has been transported under a criminal sentence, or is an alien
enemy. She may be sued and answer as a feme sole. Mitf. Eq. Pl.
104, 105; Coop. Eq. Pl. 30.
20. - 2. When her hushand is joined, or ought to be joined, she
cannot make a separate defence, without a special order of court.
The following are instances where such orders will made. When a
married woman claims as defendant in opposition to her hushand,
or lives separate from him, or disapproves of the defence he
wishes her to make, she may obtain an order of court for liberty
to answer, and defend the suit separately. And when the hushand
is abroad, the plaintiff may obtain, an order that she shall
answer separately; and, if a woman obstinately refuses to join a
defence with her hushand, the latter may obtain an order to
compel her to make a separate answer. Mitf. Eq: Pl.: 104;
Coop. Eq. Pl. 30; Story's Eq 71.
21. - 3. As to the number of parties. It is a general rule that
every person who is at all interested in the subject-matter of
the suit, must be made a party. It is, the constant aim of a
court of equity, to do complete justice by deciding upon and
settling the rights of all persons interested in the subject of
the suit, to make the performance of the order of the court
perfectly safe to those who are compelled to obey it, and, to
prevent future litigation. For this purpose, all persons
materially interested in the subject ought to be parties to the
suit, plaintiffs or defendants, however numerous they may be, so
that a complete decree may be made binding on those parties.
Mitford's Eq. Pl. 144; 1 John. Ch. R. 349; 9 John. R. 442; 2
Paige's C. R. 278; 2 Bibb, 184; 3 Cowen's R. 637; 4 Cowen's R.
682 9 Cowen's R. 321; 2 Eq. Cas. Ab. 179; 3 Swans. R. 139. When
a great number of individuals are interested as in the instance
of creditors seeking an account of the estate of their deceased
debtor for payment of their demands, a few suing on behalf of the
rest may substantiate the suit, and the other creditors may come
in under the decree. 2 Ves. 312, 313. In such case the bill
should expressly show that it is fifed as well on the behalf of
other members as those who are really made the complainants; and
the parties must not assume a corporate, name, for if they assume
the style of a corporation, the bill cannot be sustained. 6 Ves.
jr. 773; Coop. Eq. Pl. 40; 1 John. Ch. R. 349; 13 Ves. jr. 397
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16 Ves. jr. 321; 2 Ves. sen. 312 S. & S. 18; Id. 184. In some
cases, however, when all the persons interested are, not made
parties, yet, if there be such privily between the plaintiffs and
defendants, that a complete decree may be made, the want of
parties is not a cause of demurrer. Mitf. El q. Pl. 145. Vide
Calvert on Parties to Suits in Equity; Edwards on Parties to
Bills in Chancery; Bouv Inst. Index, h. t.
PARTITION, conveyancing. A deed of partition is, one by which
lands held in joint tenancy, coparcenary, or in common, are
divided into distinct portions, and allotted to the several
parties, who take them in severalty.
2. In the old deeds of partition, it was merely agreed that one
should enjoy a particular part, and the other, another part, in
severalty; but it is now the practice for the parties mutually
to convey and assure to each other the different estates which
they are to take in severalty, under the partition. Cruise Dig.
t. 32, c. 6, s. 15.
PARTITION, ?states. The division which is made between several
persons, of lands, tenements, or hereditaments, or of goods and
chattels which belong to them as co-heirs or co-proprietors. The
term is more technically applied to the division of real estate
made between coparceners, tenants in common or joint tenants.
2. The act of partition ascertanas and fixes what each of the
co-proprietors is entitled to have in severalty
3. Partition is either voluntary, or involuntary, by
compulsion. Voluntary partition is made by the owners of the
estate, and by a conveyance or release of that part to each other
which is to be held by him in severalty.
4. Compulsory partition is made by virtue of special laws
providing that remedy. "It is presumed," says Chancellor Kent, 4
Com. 360, "that the English statutes of 31 and 32 Henry VIII.
have been generally reenacted and adopted in this country, and
probably, with increased facilities for partition." In some
states the courts of law have jurisdiction; the courts of equity
have for a long time exercised jurisdiction in awarding
partition. 1 Johns. Ch. R. 113; 1 Johns. Ch. R. 302; 4
Randolph's R. 493; State Eq. Rep. S. C. 106. In Massachusetts,
the statute authorizes a partition to be effected by petition
without writ. 15 Mass. R. 155; 2 Mass. Rep. 462. In
Pennsylvania, intestates' estates, may be divided upon petition
to the orphans' court. By the civil code of Louisiana, art. 1214,
et seq., partition of a succession may be made. Vide, generally,
Cruise's Dig. tit. 32, ch. 6, s. 1 5; Com. Dig. Pleader, 3 F;
Id. Parcener, C; Id. vol. viii. Append. h. t. 16 Vin. Ab. 217;
1 Supp. to Yes. jr. 168, 171; Civ. Code of Louis. B. 3, t. 1, c.
8.
5. Courts of equity exercise jurisdiction in cases of partition
on various grounds, in cases of such complication of titles, when
no adequate remedy can be had at law; 17 Ves. 551; 2 Freem. 26;
but even in such cases the remedy in equity is more complete, for
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equity directs conveyances to be made, by which the title is more
secure. "Partition at law, and in equity," says Lord Redesdale,
"are very different things. The first operates by the judgment of
a court of law, and delivering up possession in pursuance of it,
which concludes all the parties to it. Partition in equity
proceeds upon conveyances to be executed by the parties; and if
the parties be not competent to execute the conveyance, the
partition cannot be effectually had." 2 Sch. & Lef. 371. See 1
Hill. Ab. c. 55, where may be found an abstract of the laws of
the several states on this subject.
PARTNERS, contracts. Persons who have united together and
formed a partnership. 2. Every person sui juris is competent to
contract the relation of a partner. An infant may by law be a
partner. 5 B & A. 159; but a feme covert, not being capable of
contracting, cannot enter into partnership; and altbough married
women are not unfrequently entitled to shares in banking houses,
and other mercantile concerns, under positive covenants, yet when
this happens, their hushands are entitled to such shares, and
become partners in their steads. Whether a feme sole trader in
Pennsylvania could enter into such contract, seems not settled.
See 2 Serg. & Rawle, 189; see also, 2 Nott & McC. R. 242; 2
Bay, 162, 333; Code Civ. par Sirey, art. 220.
3. Partners are considered as ostensible, dormant, or nominal
partners. 1. An actual ostensible partner is a party who not only
participates, in the profits and contributes to the losses,
but.who appears and exhibits himself to the world as a person
connected with the partnership, and as forming a component member
of a firm. He is clearly answerable for the debts and engagements
of, the partnership; his right to a share of the, profits, or
the permitted exhibition of his name as partner, would be
sufficient to render him responsible. 6 Serg. & Rawle, 259, 337;
Barnard. 343; 2 Blackst. R. 998; 17 Ves. 404;. 18 Ves. 301; 1
Rose, 297; 16 Johns. R. 40; 3 Hayw. R. 78.
4. - 2. A dormant partner is one who is a participant in the
profile of the trade, but his name being suppressed and concealed
from the firm, his interest is consequently not apparent. He is
liable as a partner, because he receives and takes from the
creditors a part of that fund which is the proper security to
them for the satisfaction of debts, and upon which they rely for
payment. 16 Johns. R. 40. Another reason assigned for subjecting
a dormant partner to responsibility is, that if he were exempted
he would receive usurious interest for his capital, without its
being attended with any risk. 1 Dougl. 371; 4 East, R. 143; 10
Johns. R. 226; 4 B. & A. 663; 8 Man. Gr. & Scott, 641, 650. But
in order to render one liable as a partner, he must receive the
profits as such, and not merely his wages; to be paid out of the
profits. Vide Profits.
5. - 3. A, nominal partner is one who has not any actual
interest in the trade or its profits, but, by allowing his name
to be used, he holds himself out to the world as having an
apparent interest. He is liable as a partner, because of these
false appearance he holds forth to the world in representing
himself to be jointly concerned in interest with those with whom
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he is apparently associated. 2 H. Bl. 235; 1 Esp. N. P. O. 29;
6 Serg. & R. 338; Watts. Partn. 26.
6. A partner in a private commercial partnership cannot
introduce a stranger into the firm as a partner without the
consent of all the copartners. If he should attempt to do so,
this may make such stranger a partner with the partner who has
associated with such third person; this will be a partnership,
distinct from the first, and limited to the share of that partner
who has so joined himself with another. 2 Rose 255; Domat, de la
Societe, tit. 8, s. 2, n. 5.
7. As between the members of a firm and the persons having
claims upon it, each individual member is answerable in solido
for the amount of the whole of the debts contracted by the
partnership, without reference either to the extent of his own
separate beneficial interest in the concern, or. to any private
arrangement or agreement that may exist between himself and his
copartners, stipulating for a restricted responsibility. 1 Ves. &
Bea. 157; 9 East, 527; 5 Burr. 2611; 2 Bl. R. 947; 1 East, R.
20; 1 Ves. sen. 497; 2 Desaus. R. 148; 4 Serg. & Rawle, 356;
6 Serg. & Rawle, 333; Kirby, 53, 77, 147. In Louisiana, ordinary
partners are not bound in solido for the debts of the partner-
ship; Civ. Code of Lo. art. 2843; each partner is bound for his
share of the partnership debts, calculating such share in
proportion to the number of the partners, without any attention
to the proportion of the stock or profits each is entitled to id.
art. 2844.
8. Partners are bound by what is done by one in the course of
the business of the partnership. Their liability under contracts
is commensurate and coextensive with their rights. Although the
general rule of law is, that no one is liable upon any contract
except such as are privy to it; yet this is not contravened by
the liability of partners, as they are imagined virtually present
at and sanctioning the proceedings they singly enter. into in the
course of trade; or as each is vested with a power enabling him
to act, at once as principal and as the authorized agent of his
copartners. Wats. Partn. 167; Gow. Partn. 53. It is doubtful,
however, whether one can close the business by a general
assignment of the partnership property for the benefit of
creditors. Pierpont and Lord v. Graham. Cir. Court, April 1820,
MS. Whart. Dig. 453, 1st ed.; 4 Wash. C. C. R. 232; see 1
Brock. R. 456; 3 Paige's R. 517; 5 Paige's R. 30; 1 Desaus. R.
537; 4 Day's. R. 425; 5 Cranch, 300; 1 Hoffm. R. 08, 511;
Stor. Partn. §101; 2 Washb. R. 390.
9. One partner can, in simple contracts, bind his copartners in
transactions relative to the partnership. 7 T. R. 207; 4 Dall.
286; 1 Dall. 269. But a security given by, one partner, in the
partnership name, known to be for his individual debt, does not
bind the firm. 2 Caines' R. 246; 4 Johns. R. 251; 4 Johns. R.
262, in note; 2 Johns. R. 300; 16 Johns. R. 34; 4 Serg. &
Rawle, 397. Nor can one partner bind his copartners by deed; and
this both for technical reason and the general policy of the law.
Wats. Partn. 218; Gow on Partn. 83; 3 Murph. 321; 4 Sm. &
Marsh. 261; 7 N. H. Rep. 549; 1 Pike, 206; 2 Harr. 147; 2 B.
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Monr. 267; 5 B. Monr. 47; 4 Miss. 417; 1 McMullen, 311; 3
Johns. Cas. 180; Taylor's R. 113; 2 Caines' R. 254; 2 Caines'
Err. 1;. 2 Johns. R. 213; 19 Johns. R. 513; 1 Dall. 11,9. But
see 6 Watts & Serg. 165, where it is said this rule admits of
sorae qualifications. The rule does not however apply to cases
where the object is to discharge a debt as due to it; as to give
a general release by deed. 3 John. 68; 7 N. H. Rep. 550; 1
Wend. 326; 20 Wend. 251; 22 Wend. 324. It seems to be an
admitted principle, that one partner has no power to submit to
arbitration any matters whatsoever, concerning or arising out of
the partnership business. Story, Partn. §114; Com. Dig.
Arbitrament, D 2; 3 Bing. R. 101; 1 C. M. & R. 681; 1 Pet. R.
222; 19 John. R. 137; 3 Kent, Com. 49, 4th ed. But in
Pennsylvania, 12 S. & R. 243, and Kentucky, 3 Mont. R. 433, one,
partner may by an unsealed, instrument refer any partnership
matter to arbitration, though he has no implied authority to
consent to an order for a judgment in an action against himself
and his copartner. 3 Mann. G. & Scott, 742. Nor has one partner
the power to confess a judgment, or authorize the confession of a
judgment against the firm, when no writ has been issued against
both. 1 Wend. 311; 9 Wend. 437; 1 Blackf. 252; 1 Scamm. 428,
442. Such a judgment, however is binding on the one who confessed
it. 2 Bl. R. 1133; 1 Dall. 119; 1 W. & S. 340, 519; 7 W. & S.
142; 2 Caines, 254; 20 Wend. 609; and see 7 Watts, 331; 1 W.
& S. 519, 525; 2 Miles, 436; 1 Hoff. Ch. R. 525.
10. With regard to the tight of the majority of, the partners,
when there is a dissent among them, it may be laid down, 1. That
when there are stipulations on this subject, they must govern.
Tum. & Russ. 496, 517. 2. In the absence of all agreement on the
subject, each partner has an equal voice, though their interests
be different, and a majority have a right to conduct the
business. 3 John. Ch. R . 400; 3 Chit. Com. Law, 236; Colly.
Partn. B. 2, c. 2, s. 1; Id. B. 3, c. 1, s. 262 - Story, Partn.
123. 3. When there are only two partners, and they dissent,
neither can bind the partnership, when the person with whom they
deal has notice of such disagreement. 1 Stark. R. 164. See 1
Camp. R. 403; 10 East, R. 264; 7 Price, Rep. 193; 6 Ves. 777;
16 Vin. Ab. 244. But this right of the majority is confined to
transactions in the usual scope of the business, and not to a
change of the articles of the partnership, for in such case all
the partners must consent, 4 John. Ch. R. 573.
11. The stock used in a joint undertaking by way of partnership
in trade, is always considered in common and not as joint
property, and consequently there is no survivorship therein; jus
accrescendi inter mercatores, pro beneficio commercii, locum non
habet. On the death of one partner, therefore, his
representatives become tenants in common with the survivor, of
all the partnership effects in possession. But with respect to
choses in action, survivorship so far exists at law, as that the
remedy or right to reduce them into possession vests exclusively
in the survivor; although when they are recovered, the
representatives of the deceased partner have, in equity, the same
right of sharing and participating in them which their testator
or intestate would have possessed had he been living. 1 Ld. Raym.
340. See 2 Dall. 65, 66, in note; 1 Dall. 248; 4 Dall. 354; 2
Serg. & Rawle, 494.
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12. When real estate is owned by a partnership, it is held by
the partners subject in all respects to the ordinary incident's
of land held in common. 1 Sumn. R. 174; 7 Conn. 11; 5 Hill, (N.
Y.) Rep. 118; 4 Mete. 537. But in equity the partners may by
agreement, express or implied, affect real estate with a trust
as, a partnership property, and, by that means, render it in,
equity subject to the rules applicable to partnership property as
between the partners themselves and all claiming under them. 2
Edw. R. 28; 2 Rand. R. 183; 7, S. & R. 438, 441; Conn. 11; 5
Metc. 582; 6 Yerg. 20.
See, generally, as to partners, 5 Com. Dig. Merchant, D; Bac.
Abr. Merchant, C; Wats. on Partn. passim; Gow on Partn. passim;
Supp. to Ves. jr. vol. 1, p. 36, 279 281, 312, 389, 449, 503;
Id. vol. 2, p. 40, 314, 315, 317, 362, 364, 377, 384, 456; 1
Salk. 291, 392; 1 Swanst. R. 506, 9; 10 East R. 265; 4 Ves.
396; 1 Hare & Wall. Sel. Dec. 292, 304; Civ. Code of Lo. B. 3,
t. 11; Code Civ. L. 3, t. 9; Code de Proc. Civ. L. 1, t. 3;
Chit. Contr. 66 to 82; Poth. Contrat de Soeiete; Bouv. Inst.
Index, h. t. Vide Articles of Partnership; Death of. a partner;
Dissolution; Firm; Partnership.
PARTNERSHIP, contracts. An agreement between two or more
persons, for joining together their money, goods, labor and
skill, or either or all of them, for the purpose of advancing
fair trade, and of dividing the profits and losses arising from
it, proportionably or otherwise, between them. 2 Bouv. Inst. n.
1435; Watson on Partn. 1; Gow on Partn. 2; see Civ. Code of
Lo. art. 2772; Code Civ. art. 1832; Forbes. Inst. of Scotch
Law, part 2, B. 3, s. 3, p. 184; edit. Edin. 1722, 12mo.;
Dolmat, Civ. Law, vol. 1, p. 85; 9. John. R. 488; Puffend. B.
5, c. 8; 2 H. Bl. 246; 1 H. Bl. 37; Ersk. Inst. B. 3, t. 3,
§18; Tapia, Elemontos de Jurisp. Mercantil, p. 86; 5 Duv. Dr.
Civ. Fr. tit. 9, c. 1, n, 17; 4 Pard. Dr. Com. n. 966; 2 Bell's
Com. 611, 5th ed.; Aso & Mann. Inst. B. 2, tit.
15. Sometimes partnership signifies a moral being composed of
the reunion of all the partners. 4 Pard. n. 966. As a partnership
has a separate existence as a person, it becomes liable to fulfil
all its engagements, and the partners are individually bound and
responsible only on its default, as sureties. 2 Bell's Comm. B.
6, c. 1, n. 4, p. 619, 5th ed.
2. Partnerships will be considered, 1st. In respect to their
character and extent, as they regard property. 2d. With relation
to the number and character of parties. 3d. As they are divided
by the French code. 4th. As to their creation. 5th. As to their
object. 6th. As to their duration. 7th. As to their dissolution.
8th. As to partnerships in Louisiana.
3. - §1. In respect to their character and extent, as they
regard property, partnerships maybe divided into three classes,
namely: universal partnerships; general partnerships; and
limited or special partnerships. 1. A universal partnership is
one where the parties agree to bring into the firm all their
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property, real, personal and mixed, and to employ all their
skill, labor, and services, in the trade, or business, for their
common benefit. This, kind of partnership is perhaps unknown in
the United States. 5 Mason, R. 176.
4. - 2. General partnerships are properly such, where the
parties carry on all their trade and business for their joint
benefit and profit; and it is not material whether the capital
stock be limited or not, or the contributions of the partners be
equal or unequal. Cowp. 814. The game appellation is given to a
partnership where the parties are engaged in one branch of trade
only.
5. - 3. Special partnerships, are those formed for a special or
particular branch of business, as contradistinguished from the
general business or employment of the parties, or of one of them.
When they extend to a single transaction or adventure only, such
as the purchase and sale of a particular parcel of goods, they
are more commonly called limited partnerships. The appellation is
however given to both classes of cases indiscriminately. Story,
Partn. §75
6. - §2. When considered in relation to the number and
character of the parties, partnerships are divided into private
partnerships and public companies. 1. Private partnerships are
those which consist of two or more partners for some private
undertaking, trade, or business.
7. §2. Public companies are those where a greater number of
persons are concerned, and the stock is divided into a
considerable number of shares, the object embracing generally
public as well as private interests. This term is, however,
perhaps loosely applied, as these companies have for the most
part the character of private associations. They are either
incorporated or not. The incorporated are to be governed by the
rules established in their respective charters. See Corporation.
The unincorporated are in general subject, to all the regulations
of a common private partnership.
8. - §3. In the French law, partnerships are divided into three
kinds, namely: 1. Partnerships under a collective name, that is,
where the name of the firm contains the names of all or some of
the partners.
9. - 2. Partnerships en commandite or in commendam; these are
limited partnerships, where one or more persons are general
partners, and are jointly and severally responsible with all
their estates, and one or, more other persons who furnish a part
or the whole of the capital, who are liable only to the extent of
the capital they have furnished. The business is carried on in,
the name of the general partners. This species of partnership,
with some modifica- tions, has been adopted in several of the
states of the American union. 3 Kent, Com. 34, 4th ed.; 2 Bouv.
Inst. n. 1473, et seq.
10. - 3. Anonymous partnerships are those in which all the
partners are engaged in the business, there is no social name or
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firm, but a name designating the object of the association. The
business is managed by syndics or directors. Vide Poth. de
Societe, h. t.; 5, Duv. Dr. Civ., Fr. h. t.; Pardes. Dr: Com.
h. t.; Code de Com. h. t.; Merl. Repert. h. t. In Louisiana a
similar division has been made. Civ. Code of Lo. h. t.
11. - §4. Partnerships are created by mere act of the parties;
and in this they differ from, corporations which require the
sanction of public authority, either express or implied. Aug. &
Ames on Corp. 23. The consent of the parties may be testified,
either in express terms, as by articles of partnership, or
positive agreement; or the assent may be tacit, and to be
implied solely from the act of the parties. An implied or
presumptive assent has equal operation with one that is express
and determined. And it may be laid down as a general and
undeniable proposition, that persons having a mutual interest in
the profits and loss of any business, or particular branch of
business, carried on by them, or persons appearing ostensibly to
the world as joint traders, are to be recognized and treated as
partners, whatever may be the nature of the agreement under which
they act, or whatever motive or inducement may prompt them to
such an exhibition. 1 Dall. 269. 12. A community of property does
not of itself create a partnership, however that property may be
acquired, whether by purchase, donation, accession, inheritance
or prescription. Civ. Code of Louis. art. 2777. Hence joint
tenants or tenants in common of lands, goods, or chattels, under
devises or bequests in last wills or testaments, and doeds or
donations inter vivos, and inheritances or successions, are not
partners. Story, Partn. §3.
13. Joint owners of ships are not, in consequence of such
ownership, to be considered as partners. Abbot on Ship. 68; 3.
Kent, Com. 25, 4th ed.; 15 Wend. 187; and see Poth. De Societe,
n. 2; 4 Pard. Dr. Com. n. 969; 17 Dur. Dr. Fr. n. 320; 5 Duv.
Dr. Civ. Fr. n. 33.
14.- The free and personal choice of the contracting parties is
so essentially necessary to the constituting of a partnership,
that even executors and representatives of deceased partners do
not, in their representative capacity, succeed to the state and
condition of partners; 2 Ves. sen. 34; Wats. on Partn. 6;
although a community of interest necessarily exists between them
and the surviving partners, until the affairs of the partnership
are wound up. 11 Ves. 3. When there is a positive agreement at
the commencement of the partnership, that the personaI
representative or heir of a partner shall succeed him in the
partnership, the obligation will be considered valid. Coll. on
part. B. 1; ch. 1, §11; Story, Partn. §5.
15. - §5. The object of the partnership must be legal. All
partnerships, therefore, which are formed for any purpose
forbidden by law or good morals, are null and void. But all the
partners in such a partnership are jointly liable to third
persons who may contract with them without a knowledge of the
illegal or immoral object of the partnership. Civ. Code of Lo.
art.- 2775; 5 B. & A. 341 2 B. & P. 371; 3 T. R. 454; Poth.
Oblig. by Evaans, vol. 2, page 3; Gow on Partn. 8; Wats. Partn.
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131. Partnerships are not confined to mere commercial trade or
business; but generally extend to, manufactures and, to all
other lawful occupations and employments, or to professional or
other business. They may extend to all the business of the
parties; to a single branch of such business; to a single
adventure; or to a single thing. But there cannot lawfully be a
partnership in a mere, personal office, especially when it is of
a public nature, requiring the personal confidence in the skill
and integrity of the officer. Story, Partn. §81; Colly. Partn.
31.
16. - §6. Partnerships may be formed to last for life, or for a
specific period of time; they may be conditional or indefinite
in their duration, or for a single adventure or dealing; this
depends altogether on the will of the parties. The period of
duration is either expressed or implied, but the law will not
presume that it shall last beyond life. 1 Swanst. 521; 1 J.
Wils. R., 181. When a particular term is fixed, it is presumed to
endure until the period has elapsed; when no term is fixed, it
is presumed to endure for the life of the parties, unless
previously dissolved, by the acts of one of them, by mutual
consent, or by operation of law. Story, Partn. §84. When no time
is limited for the duration of a general trading partnership, it
is a partnership at will, and may be dissolved at any time at the
pleasure of any one or more of the partners.
17. - §7. A partnership may be dissolved in several ways: when
the partnership is formed for a single dealing or transaction, it
follows that it is at an end so soon as the dealing or
transaction in which the partners jointly engaged is completed.
Gow on Partn. 268; Inst. Lib. 3, tit., 26, s. 6.
18. Where a general partnership is formed, either for a
definite, or an indefinite period of time, the causes which may
operate a destruction of it, are various. In the case of a
partnership limited as to its duration, it may, in the
intermediate time, before the restricted period of its
termination arrives, be dissolved either by the death, the
confirmed insanity, the bankruptcy of all or one of the partners,
or it may endure the stipulated period, and expire with the
effluxion of time; but where the partnership is unlimited as to
its existence, although in the instances of death or bankruptcy,
it is determined, yet if they do not intervene, any partner may
withdraw himself from it whenever he thinks proper. Code, lib. 4,
t. 37, 1, 5.
19. Besides the causes above stated for a dissolution, a
partnership, limited or unlimited as to its duration, may be
dissolved by the decree of a court of equity, where the conduct
of some or all of the partners has been such as not to carry on
the trade or undertaking on the terms stipulated; Gow on Partn.
269; or by the involuntary or compulsory, sale or transfer of
the partnership interest of any one of the partners. 17 John. R.
525.
20. In New York, it has been held that there is no such thing
as an indissoluble partnership, and that, therefore, any partner
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may withdraw at any time; and by that act the partnership will
be solved; the other party having his action against the
withdrawing partner upon his covenant to continue the
partnership; 19 Johns. R. 538. This doctrine is not in
accordance with the English law. Indeed it is even doubtful in
New York. Story, Eq. Jur. §668; Story, Partn. §275; 3 Kent Com.
61, 4th ed.; 1 Hoffm. Ch. R. 534. See Gow on Partn. 803, 305,
and 4 Wash. C. C. R. 232.
21. It may also be dissolved by the extinction of the thing or
object of the partnership; or by the agreement of the parties.
See Civ. Code of Louis. art. 2847 Code Civ. B. 3, fit. 9, c 4
art. 1865 to 1872; 2 Bell's Com. 631 to 6414, 6th ed. See
Dissolution.
22. The effect of the dissolution of the partnership is to
disable any one of the partners from contracting new obligations
or engagements on account of the firm. 1 Pet., R. 351; 3 McCord,
378; 4 Munf. 215; 2 John., 300; 5 Mason, 56; Harper, R. 470;
4 John. 224; 1 McCord, 338; 6 Cowen, 701. But notwithstanding
the dissolution there remain, with each of the partners, certain
powers, rights, duties, authorities, and relations between them,
which are indispensable to the complete arrangement and final
settlement of the affairs of the firm. The partnership must,
therefore, subsist for many purposes, notwithstanding the
dissolution. Among these are, 1st. The completion of an the
unperformed engagements of the partnership. 2d. The conversion of
all the property, means and assets of the partnership, existing
at the time of the dissolution, for the benefit of those who,
were partners, according to their respective shares. 3d. The
application of the partnership funds, to, the liquidation of the
partnership debts. Story, Partn. §324.
23. - §3. By the laws of Louisiana, partnerships are divided,
as to their object, into commercial partnerships and ordinary
partnerships Commercial partnerships are such as are formed, 1.
For the purchase of any personal property, and the sale thereof,
either in the same state or changed by manufacture. 2. For buying
and selling any personal property whatsoever, as factors or
brokers. 3. For carrying personal property for hire, in ships or
other vessels. Civ. Code of Lo. art., 2796.
24. Ordinary partnerships are, such as are not commercial;
they are divided into universal or particular partnerships. Id.
art. 2797.
25. Universal partnership is a contract by which the parties
agree to make a common stock of all the property they
respectively possess; they may extend it to all the property
real and personal, or restrict it to personal only; they may,
as, in other partnerships, agree that the property itself shall
be common stock, or that the fruits only shall be such; but prop
erty which may accrue to one of the parties, after entering into
the partnership, by donation, succession, or legacy, does not
become common stock, and any stipulation to that effect, previous
to the obtaining the property aforesaid, is void. Code Civ. of
Lo.art. 2800.
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26. Particular partnerships are such as are formed for any
business not of a commercial nature. Id. art. 2806. The business
of this partnership must be conducted in the name of all the
persons concerned, unless a firm is adopted by the articles of
partnership reduced to writing, and recorded as is prescribed
with respect to partnerships in commendam. Id. art 2808.
27. There is also a species of partnership which may be
incorporated with either of the other kinds, called partnership
in commendam, or limited partnership. Id. art. 799. Partnership
in commendam is formed by a contract, by which one person or
partnership agrees to furnish another person or partnership a
certain amount, either in property or money, to be employed by
the person or partnership whom it is furnished, in his or their
own name or firm, on condition of receiving a share in the
profits, in the proportion determined by the contract, and of
being liable to losses and expenses to the amount furnished, and
no more. Id. art. 2810.
28. Every species of partnership may receive such partners. It
is therefore a modification of which the several kinds of
partnerships are susceptible, rather than a separate division of
partnerships. Vide Bouv. Inst. Index, h. t.: Firm.
PARTOWNERS. Persons who hold real or personal property by the
same title, either as tenants in common, joint tenants, or
coparceners. They are sometimes called guasi partners and differ
from partners in this, that they are either joint owners, or
tenants in common, each having an independent, although an
undivided interest in the property; neither can transfer or
dispose of the whole property, nor act for the others in relation
to it, but merely for his own share, and to the extent of his own
several right and interest.
2. In joint tenancy of goods or chattels, it is true, the joint
tenants are seized per my et per tout; but still each one has an
independent, and to a certain extent a distinct right during his
lifetime, which he can dispose of and sever the tenancy.
3. Tenants in common hold undivided portions of the property by
several titles, or in several rights, although by one title.
Their possession, however, they hold in common and undivided.
Whereas, in partnerships, the partners are joint owners of the
property, and each has a right to sell or dispose of the whole,
unless otherwise provided for in the articles of partnership.
Colly. Partn. 86; Wats. Partn. 66; Story, Partn. §91.
4. At common law, each of the owners of a chattel has an equal
title and right to possess and use it; and in the case of common
cbattels the law has generally left this right to the free
discretion of the several owners but in regard to ships, the
common law has adopted and followed' out the doctrine of the
courts of admiralty. It authorizes the majority in value and
interest to employ the ship upon any probable design. This is
done, not without guarding the rights, of the minority. When the
majority desire to employ a ship upon any particular voyage or
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adventure, they have a right to do so, upon giving security by
stipulation to the minority, if required, to bring back and
restore the ship to them, or in case of her loss, to pay them the
value of their shares. Abbott, Shipp. 70; 3 Kent Com. 151, 4th
ed.; 2 Bro. Civ. Law, 131; Molloy, B. 2, c. 1, §3; 2 Pet. Adm.
R. 288; Story, Partn. 428 11 Pet. R. 175. When the majority do
not choose to employ the ship, the minority have the same right,
upon giving similar security. 11 Pet. R. 175; 1 Hagg. Adm. R.
306; Jacobi: Sea Laws, 442.
5. When part owners are equally divided as to the employment,
upon any particular voyage, the courts of admiralty have man
fested a disposition to support the right of the court to order a
sale of the ship. Story Partn. §439; Bee's Adm. R. 2; Gilpin,
R. 10; 18 Am. Jur. 486.
PARTURITION. The act of giving birth to a child.
2. Sometimes questions arise how far means may be employed to
promote par turition, which cause, or are likely to cause others
in relation to it, but merely for his own share, and to the
extent of his own several right and interest.
3. In joint tenancy of goods or chattels, it is truej tbd joint
tenants are so ized per my et per toitt, but still each one has
an independent, and to a certain extent a distinct right during
his lifetime, which he can dispose of and sever the tenancy.
3. Tenants in common hold undivided portions of the, property
by several titles, or in several rights, although by one title.
Their possession, bowever, they hold in common and undivided.
Whereas, in partnerships, the partners are joint owners of the
property, and each has a right to sell or dispose of the whole,
unless otherwise provided for in the articles of partnership.
Colly. Partn. 86; Wats. Partn. 66; Story Partn. §91.
4. At common law, etch of the owners of a ebattel has an equal
title and right to possess and use it; and in the case of common
chattels the law has generally, left this right to the free
discretion of the several owners, but in regard to ships, the
common law has adopted and followed out the doctrine of the
courts of admiralty. It authorizes the majority in value and
interest to employ the rehip upon any probable design. This is
done, not without guarding the rights, of the minority: When the
maiority desire to employ a ship upon any particular voyage or
adventure, they have a right to do so, upon giving security by
stipulation to the minority, if required, to bring back and
restore the rbip to them, or in case of her loss, to pay them the
value of their shares. Abbott, Shipp. 70; 3 Kent, Com. 151, 4th
ed.; 2 Bro. Civ. Law, 131; Molloy, B. 2, c. 1, §3; 2 Pet. Adm.
R. 288, Story, Partn. 428; 11 Pet. R. 175. When the majority do
not choose to employ the ship, the minority have, the same right,
upon 'vi" similar security. 11 Pet. R. 175; I @agg! Adm. R. 306;
Jacobi. Sea Laws, 442.
6. When part owners are equally divided as to the employment,
upon any particular voyage, the courts of admiralty, have
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manifested a disposition to support the right of the court to
order a sale of the ship. Story, Partn. §439; Bee's Adm. R. 12 i
Gilpili, R. 10; 18 Am. Jur. 486.
PARTURITION. Tho act of giving birth to a child
2. Sometimes questions arise bow far means may be employed to
promote par-turition, which cause, or are likely to cause, the
death of the foetus. These means, in cases of deformed pelvis,
are abortion in the early months, by embryotomy, by symphysotomy,
and by the Caesarian section. These means are justifiable to save
the life of the mother, and sometimes some of them have saved the
lives of both. Vide Caesarian operation; Delivery; Pregnancy.
PARTUS. The child just before it is born, or immediately after
its birth. Before birth the partus is considered as a portion of
the mother. Dig. 25, 4, 1, 1. -See Birth; Foetus; Proles;
Prolicide.
PARTY, practice, contracts. When applied to practice, by party
is understood either the plaintiff or defendant. In contracts, a
party is one or more persons who engage to perform or receive the
performance of some agreement. Vide Parties to contrads; Parties
to 'actions; Parties to a suit in equity.
PARTY-JURY. An ancient word used to signify a jury de medietas
linguae, (q. v.) or one composed one-half of natives, and the
other of foreigners. Lexic. Techn. h. t.
PARTY WALL. A wall erected on the line between two adjoining
estates, belonging to different persons, for the use of both
estates. 2 Bouv. Inst. n. 1615.
2. Party walls are generally regulated by acts of the local
legislatures. The principles of these acts generally are, that
the wall shall be built equally on the lands of the adjoining
owners, at their joint expense, but when only one owner wishes to
use such wall, it is built at his expense, and when the other
wishes to make use of it, he pays one half of its value; each
owner has a right to place his joists in it, and use it for the
support of his roof. When the party wall has been built, and the
adjoining owner is desirous of having a deeper foundation, he has
a right to undermine such wall, using due care and diligence to
prevent any injury to his neighbor, and having done so, he is not
answerable for any consequential damages which may ensue. 17
Jobn. R. 92; 12 Mass. 220; 2 N. H. Rep. 534. Vide 1 Dall. 346;
5 S . & R. 1.
3. When such wall exists between two buildings, belonging to
different persons, and one of them takes it down with his
buildings, he is required to erect another in its place in a
reasonable time, and with the least inconvenience; the other
owner must contribute to the expense, if the wall required
repairs, but such expense will be limited to the costs of the old
wall. 3 Kent, Com. 436. When the wall is taken down, it must be
done with care; but it is not the duty of the person taking it
down to shore up or prop the.,house of his neighbor, to prevent
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it from falling; if, however, the work be done with negligence,
by which injury accrues to the neighboring house, an action will
lie. 1 Moody & M. 362. Vide 4 C. & P. 161; 9 B. & C. 725; 12
Mass. R. 220; 4 Paige's R. 169; 1 C. & J. 20; 1 Pick. 434; 12
Mass. 220; 2 Roll., Ab. 564; 3 B. & Ad. 874; 2 Ad. &-Ell. 493
Crabb on R. P. §500. In the excellent treatise of M. Lepage,
entitled "Lois des Batimens," part 1, c. 3, s. 2, art. l, will be
found a very minute examination of the subject of party walls,
with many cases well calculated to illustrate our law. See also
Poth. Contr. de Societe, prem. app. n. 207; 2 Hill.: Ab. 119;
Toull. liv. 2, t. 2, c. 3.
PASS. In the slave states this word signifies a certificate
given by the master or mistress to a slave, in which it is stated
that he is permitted to leave his home, with the authority of his
master or mistress. The paper on which-such certificate is
written is also called a pass.
PASS, practice. To be given, or entered; to proceed; as, let
the judgment pass for the plaintiff.
TO PASS. To accomplish, to complete, to decide.
2. The title to goods passes by the sale whenever the parties
have agreed upon the sale and the price, and nothing remains to
be done to complete the agreement. 1 Bouv. Inst. n. 939.
3. When a jury decide upon the rights of the parties, which are
in issue, they are said to pass upon them.
PASS BOOK, com. law. A book used by merchants with their
customers, in which an entry of goods sold and delivered to a
customer is made.
2. It is kept by the buyer, and sent to the merchant whenever
he wishes to purchase any. article. It ought to be a counterpart
of the mercbant's books, as far as regards the customer's
account.
3. Among English bankers, the term pass-book is given to a
small book made up from time to time, from the banker's ledger,
and forwarded to the customer; this is not considered as a
statement of account between the parties, yet when the customer
neglects for a long time to make any objection to the correctness
of the entries he will be bound by them. 2 Atk. 252; 2 Deac. &
Ch. 534; 2 M. & W. 2.
PASSAGE. A way over water; a voyage made over the sea or great
river; as, the Sea Gull had a quick passage: the money paid for
the transportation of a person over the sea; as, my, passage to
Europe was one hundred and fifty dollars.
PASSAGE MONEY, contracts. The sum claimable for the conveyance
of a person with or without luggage on the water.
2. The difference between freight and passage money is this,
that the former is claimable for the carriage of goods, and the
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latter for the carriage of the person. The same rules which
govern the claim for freight affect that for passage money. 3
Chit. Com. Law, 424; 1 Pet. Adm. Dee. 126; 3 John. 335.
PASSIVE, com. law. All the sums of which one is a debtor. It is
used in contradistinction to active. (q. v.) By active debts are
understood those which may be employed in furnishing assets to a
merchant to pay those which he owes, which are called passive
debts.
PASSPORT, SEA BRIEF, or SEA LETTER, maritime law. A paper
containing a permission from the neutral state to the captain or
master of a ship or vessel to proceed on the voyage proposed; it
usually contains his name and residence; the name, property,
description, tonnage and destination of the ship; the nature and
quantity of the cargo; the place from whence it comes, and its
destination; with such other matters as the practice of the
place requires.
2. - This document is indispensably necessary in time of war
for the safety of every neutral vessel. Marsh. Ins. B. 1, c. 9,
s. 6, p. 406, b.
3. In most countries of continental Europe passports are given
to travellers; these are intended to protect them on their
journey from all molestation, while they are obedient to the
laws. Passports are also granted by the secretary of state to
persons travelling abroad, certifying that they are citizens of
the United States. 9 Pet. 692. Vide 1 Kent, Com. 162, 182; Merl.
Repert. h. t.
PASSENGER, cont. One who has taken a place. in a public
conveyance, for the purpose of being transported from one place
to another.
2. By act of Feb. 22, 1847, Minot's Statutes at Large of United
States, p. 127, it is provided as follows: That if the master of
any vessel owned in whole or in part by a citizen of the United
States of America, or by a citizen of any foreign country, shall
take on board, such vessel, at any foreign port or place, a
greater number of passengers than in the following proportion, to
the space occupied by them and appropriated for their use, and
unoccupied by stores, or other goods, not being the personal
luggage of such passengers, that is to say, on the lower deck or
platform one passenger for every fourteen clear superficial feet
of deck, if such vessel is not to pass within the tropics during
such voyage; but if such vessel is to pass within the tropics
during such voyage, then one passenger, for every twenty such
clear superficial feet of deck, and on the orlop deck (if any)
one passenger for every thirty such superficial feet in all
cases, with intent to bring such passengers to the United States
of America, and shall leave such port or place with the same or
any other number thereof, within the jurisdiction of the United
States aforesaid, or if any such master of vessel shall take on
board of his vessel, at any port or place within the jurisdiction
of the United States aforesaid, any greater number of passengers
than the proportions aforesaid admit, with intent to carry the
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same to any foreign port or place, every such master shall be
deemed guilty of a misdemeanor, and, upon conviction thereof
before any circuit or district court of the United States
aforesaid, shall, for each passenger taken on board beyond the
above proportions, be fined in the sum of fifty dollars, and may
also be imprisoned for any term not exceeding one year:
Provided, That this act shall not be construed to permit any ship
or vessel to carry more than two passengers to five tons of such
ship or vessel.
3. - §2. That if the passengers so taken on board of such
vessel, and brought into or transported from the United States
aforesaid, shall exceed the number limited by the last section to
the number of twenty in the whole, such vessel shall be forfeited
to the United States aforesaid, and be prosecuted and distributed
as forfeitures are under the act to regulate duties on imports
and tonnage.
4. - §3. That if any such vessel as aforesaid shall have more
than two tiers of berths, or in case, in such vessel, the
interval between the floor and the deck or platform beneath shall
not be at least six inches, and the berths well constructed, or
in case the dimensions of such berths shall not be at least six
feet in length, and at least eighteen inches in width, for each
passenger as aforesaid, then the master of said vessel, and the
owners thereof, severally, shall forfeit and pay the sum of five
dollars for each and every passenger on board of said vessel on
such voyage, to be recovered by the United States aforesaid, in
any circuit or district court of the. United States where such
vessel may arrive, or from which she sails.
5. - §4. That, for the purposes of this act, it shall in all
cases be computed that two children, each being under the age of
eight years, shall be equal to one passenger, and that children
under the age of one year shall not be included in the
computation of the number of passengers.
6. - §5. That the amount of the several penalties imposed by
this act shall be liens on the vessel or vessels violating its
provisions; and such vessel may be libelled and sold therefor in
the district court of the United States aforesaid in which such
vessel shall arrive.
9. By act of March 2, 1847, Minot's Statutes at Large of United
States, p. 149, it is enacted, That so much of said act as
authorizes shippers to estimate two children of eight years of
age and under as one passenger, in the assignment of room, is
hereby repealed.
10. The act of May 17, 1848, Minot's Statute at Large of United
States, p. 220, further provides, That all vessels, whether of
the United States or any other country, having sufficient
capacity according to law for fifty or more passengers, (other
than cabin passengers,) shall, when employed in transporting such
passengers between the United States and Europe, have on the
upper deck, for the use of such passengers, a house over the
passage-way leading to the apartment allotted to such passengers
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below deck, firmly secured to the deck, or combings, of the
hatch, with two doors, the sills of which shall be at least one
foot above the deck, so constructed that one door or window in
such house may, at all times, be left open for ventilation; and
all vessels so employed, and having the capacity to carry one
hundred and fifty such passengers, or more, shall have two such
houses; and the stairs or ladder leading down to the aforesaid
apartment shall be furnished with a handrail of wood or strong
rope: Provided, nevertheless, Booby hatches may, be substituted
for such houses in vessels having three permanent decks.
11. - §2. That every such vessel so employed, and having the
legal capacity for more than one hundred such passengers, shall
have at least two ventilators to purify the apartment or
apartments occupied by such passengers; one of which shall be
inserted in the after part of the apartment or apartments, and
the other shall be placed in the forward portion of the apartment
or apartments, and one of them shall have an exhausting cap to
carry off the foul air, and the other a receiving cap to carry
down the fresh air which said ventilators shall have a capacity
proportioned to the size of the apartment or apartments to be
purified; namely, if the apartment or apartments will lawfully
authorize the reception of two hundred such passengers, the
capacity of such ventilators shall each of them be equal to a
tube of twelve inches diameter in the clear, and in proportion
for larger or smaller apartments; and all said ventilators shall
rise at least four feet six inches above the upper deck of any
such vessel, and be of the most approved form and construction:
Provided, That if it shall appear from the report to be made and
approved., as provided in the seventh section of this act that
such vessel is equally well ventilated by any other means, such
other means of ventilation shall be deemed, and held to be, a
compliance with the provisions of this section.
12. - §3. That every vessel carrying more than fifty such
passengers shall have for their use on deck, housed and
conveniently arranged, at least one camboose or cooking range,
the dimensions of which shall be equal to four feet long and one
foot six inches wide for every two hundred passengers; and
provisions shall be made, in the manner aforesaid in this ratio
for a greater or less number of passengers: Provided, however,
Ana nothing herein contained shall take away the right to make
such arrangements for cooking between decks, if that shall be
deemed desirable.
13. - §4. That all vessels employed as aforesaid shall have on
board, for the use of such passengers, at the time of leaving the
last port whence such vessel shall sail, well secured under deck,
for each passenger, at least fifteen pounds of good navy bread,
ten pounds of rice, ten pounds of oatmeal, ten pounds of wheat
flour, ten pounds of peas and beans, thirty-five pounds of
potatoes, one pint of vinegar, sixty gallons of fresh water, ten
pounds of salted pork, free of bone, all to be of good quality,
and a sufficient supply of fuel for cooking; but at places where
either rice, oatmeal, wheat flour or peas and beans cannot be
procured, of good quality and on reasonable terms, the quantity
of either or any of the other last-named articles may be
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increased and substituted therefor; and in case potatoes cannot
be procured on reasonable terms, one pound of either of said
articles maybe substituted in lieu of five pounds of potatoes;
and the captains of such vessels, shall deliver to each passenger
at least one-tenth part, of the aforesaid provisions weekly,
commencing on the day of sailing, and daily at least three quarts
of water, and sufficient fuel for cooking; and if the passengers
on board of any such vessel in which the provisions, fuel and
water herein required shall not have been provided as aforesaid,
shall at any time be put on short allowance during, any voyage,
the master or owner of any such vessel shall pay to each and
every passenger who shall have been put on short allowance the
sum of three dollars for each and every day they may have been on
such short allowance, to be recovered in the eircuit or district
court of the United States; Provided, nevertheless, and nothing
herein contained shall prevent any passenger, with the consent of
the captain, from furnishing for himself the articles of food
herein specified; and, if, put on board in good order, it shall
fully satisfy the provisions of this act so far as regards food,
and provided further, That any passenger may also, with the
consent of the captain, furnish for himself an equivalent for the
articles of food required in other and different articles: and
if, without waste or neglect on the part of the passenger, or
inevitable accident, they prove insufficient, and the captain
shall furnish comfortable food to such passengers during the
residue of the voyage, this, in regard to food, shall also be a
compliance with the terms of this act.
14. - §5. That the captain of any such vessel so employed is
hereby authorized to maintain good discipline, and such habits of
cleanliness among such passengers, as will tend to the
preservation and promotion of health,; and to that end, he shall
cause such regulations as he may adopt for this purpose to be
posted up, before sailing, on board such vessel, in a place
accessible to such passengers, and stall keep the same so posted
up during the voyage; and it is hereby made the duty of said
captain to cause the apartment occupied by such passengers to be
kept, at all times, in a clean healthy state, and the owners of
every such vessel so employed are required to construct the
decks, and all parts of said apartment, so that it can be
thoroughly cleansed; and they shall also provide a safe,
convenient privy or water closet for the exclusive use of every
one hundred such passengers. And when the weather is such that
said passengers cannot be mustered on deck with their bedding, it
shall be the duty of the captain of every such vessel to cause
the deck occupied by such passengers to be cleaned [cleansed]
with chloride of lime, or some other equally efficient
disinfecting agent, and also at such other times as said captain
may deem necessary.
15. - §6 That the master and owner or owners of any such vessel
so employed, which shall not be provided with the house or houses
over the passage-ways, as prescribed in the first section of this
act; or with ventilators, as proscribed in the second section of
this act; or with the cambooses or cooking ranges, with the
houses over them, as prescribed in the third section of this act;
shall severally forfeit and pay to the United States the sum of
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two hundred dollars for each and every violation of, or neglect
to conform to, the provisions of each of said sections; and
fifty dollars for each and every neglect or violation of any of
the provisions of the fifth section of this act; to be recovered
by suit in any circuit or district court of the United States,
within the jurisdiction of which the said vessel may arrive, or
from. which it may be about to depart, or at any place within the
jurisdiction of such courts, wherever the owner or owners, or
captain of such vessel, may be found.
16. - §7. That the collector of the customs, at any port in the
United States at which any vessel so employed shall arrive, or
from which any such vessel shall be about to depart, shall
appoint and direct one of the inspectors of the customs for such
port to examine such vessel, and report in writing to such
collector whether the provisions of the first, second, third and
fifth sections of this act have been complied with in respect to
such vessel; and if such report shall state such compliance, and
be approved by such collector, it shall be deemed and held as
conclusive evidence thereof.
17. - §8. That the first section of the act entitled, "An act
to regulate the carrying of passengers in merchant vessels,"
approved February twenty-second, eighteen hundred and
forty-seven, be so amended that, when the height or distance
between the decks of the vessels referred to in the said section
shall be less than six feet, and not less than five feet, there
shall be allowed to each passenger sixteen clear superficial feet
on the deck, instead of fourteen, as prescribed in said section;
and if the height or distance between the decks shall be less
than five feet, there shall be allowed to each passenger
twenty-two clear superficial feet on the deck; and if the master
of any such vessel shall take on board his vessel, in any port of
the United States, a greater number of passengers than is allowed
by this section, with the intent specified in said first section
of the act of eighteen hundred and forty-seven, or if the master
of any such vessel shall take on board at a foreign port, and
bring within the jurisdiction of the United, States, a greater
numher of passengers than is allowed by this section, said master
shall be deemed guilty of a misdemeanor, and upon conviction
thereof shall be punished in the manner provided for the
punishment of persons convicted of a violation of the act
aforesaid; and in computing the number of passengers on board
such vessels, all children under the age of one year, at the time
of embarkation, shall be excluded from such computation.
18. - §9. That this act shall take effect, in respect to such
vessels sailing from ports in the United States, in thirty days
from the time of its approval; and in respect to every such
vessel sailing from ports in Europe, in sixty days after such
approval; and it is hereby made the duty of the secretary of
state to give notice, in the ports of Europe, of this act, in
such manner as he may deem proper.
19. - §10. That so much of the first section of the act
entitled " An act regulating passenger ships and vessels,"
approved March second, eighteen hundred and nineteen, or any
other act that limits the number of passengers. to two for every
five tons, is hereby repealed.
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20. By act of March 3, 1849, Minot's Statutes at Large of
United States, p. 399, it is enacted, That all vessels bound from
any port in the United States to any port or place in the Pacific
Ocean, or on its tributaries, or from any such port or place to
any port in the, United States on the Atlantic, or its
tributaries, shall be subject to the provisions of all the laws
now in force relating to the carriage of passengers in merchant
vessels, sailing to and from foreign countries, and the
regulation thereof; except the fourth section of the "Act to
provide for the ventilation of passenger vessels, and for other
purpoes," approved May seventeenth, eighteen hundred and
forty-eight, relating to provisions, water, and fuel; but the
owners and masters of all such vessels shall in all cases furnish
to each passenger the daily supply of water therein mentioned,
and they shall furnish for themselves, a sufficient supply of,
good and wholesome food; and in case they shall fail so to do,
or shall provide unwholesome or unsuitable provisions, they shall
be subject to the penalty provided in said fourth section in case
the passengers are put on short allowance of water or provisions.
21. - §2. That the act, entitled "An act to regulate the
carriage of passengers in merchant vessels," approved February
twenty-second, eighteen hundred and forty-seven, shall be so
amended as that a vessel passing into or through the tropics
shall be allowed to carry the same number of passengers as
vessels that do not enter the tropics,
22. By act of January 31, 1848, Minot's Statutes at Large of
United States, p. 210, it is enacted, That, from and after the
passage of this act, all and every vessel and vessels which shall
or may be employed by the American Colonization Society, or by
the Maryland State Colonization Society, to transport, and which
shall actually transport, from any port or ports in the United
States to any colony or colonies on the west coast of Africa,
colored emigrants to reside there, shall be, and the same are
hereby, excepted out of and exempted from the operation of the
act entitled " An act to regulate the carriage of passengers in
merchant vessels," passed twenty-second February, eighteen
hundred and forty-seven; and of the act. entitled " An act to
amend an act entitled 'An act to regulate the carriage of
passengers in merchant vessels, and to determine the time,' when
said act shall take effect,"' passed, second March, eighteen
hundred and forty-seven.
23. No deduction is to be made, in estimating, the number of
passengers in a vessel, for children or persons not paying. Gilp.
R. 334. For his rights and duties, vide Common Carriers.
PASTURES, pastures. The land on which beasts are fed; and by a
grant of pastures the land itself passes. 1 Thorn. Co, Litt. 202.
PATENT, constrction. That which is open or manifest.
2. This word is usually applied to ambiguities which are said
to be latent, or patent.
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3. A patent ambiguity -is one which is produced by the
uncertainty, contradictoriness or deficiency of the language of
an instrument, so that no discovery of facts or proof of
declaration can restore the doubtful or smothered sense without
adding ideas which the actual words will not of themselves
sustain. Bac. Max. 99 T. Raym. R. 411; Roberts on Fr. 15.
4. A latent ambiguity may be explained by parol evidence, but
the rule is, different with regard to a patent abiguity, which
cannot be explained by parol proof. The following instance has
been proposed by the court as a patent ambiguity: " If A B, by
deed, give goods to one of the sons of J S, who has several sons,
he shall not aver which was intended; for by judgment of law
upon this deed, the gift is void for uncertainty, which cannot be
supplied by averment." 8 Co. 155 a. And no difference exists
between a deed and a will upon this subject. 2 Atk. 239.
5. This rule, which allows an explanation of latent
ambiguities, and which forbids the use of parol evidence to
explain a patent ambiguity, is difficult of application. It is
attended, in some instances, with very minute nicety of
discrimination, and becomes a little unsteady in its application.
When a bequest is made " to Jones, son of, Jones," or " to Mrs.
B," it is not easy to show that the ambiguity which this
imperfect designation creates, is not ambiguity arising upon the
face of the will, and as such, an ambiguity patent, yet parol
evidence is admitted to ascertain the persons intended by those
ambiguous terms.
6. The principle upon which parol testimony is admitted in
these cases, is probably, in the first of them, a presumption of
possible ignorance in the testator of the christian name of the
legatee; and in the second, a similar presumption of his being
in the habit of calling the person by the name of Mrs. B.
Presumptions, which being raised upon the face of the will, may
be confirmed and explained by extrinsic evidence. Rob' on. Fr.
15, 27; 2 Vern.
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624, 5; 1 Vern. by Raithby, 31, note 2; 1 Rop. Leg. 147; 3
Stark. Ev. 1000; 3 Bro. C. C. 311 2 Atk. 239; 3 Atk. 257; 3
Ves. Jr. 547. Vide articles Ambiguity; Latent.
PATENT, contracts. A patent for an invention is a giant made by
the government of the United States to the inventor of any new or
useful art, machine, manufacture or composition of matter, or any
new and useful improvement in any art, machine, manufacture or
composition of matter not known or used by others before his or
their discovery or invention thereof, and not, at the time of his
application for a patent, in public use or on sale, with his
consent or allowance, as the inventor or discoverer; securing to
him for a limited time, therein expressed, the full and exclusive
right and liberty of making, constructing, using, and vending to
others to be used, the said invention or discovery, on certain
conditions, among which is the one of at once giving up his
secret and making public his discovery or invention, and the
manner of making and using the same, so that at the expiration of
his privilege, it may become public property. The instrument
securing this grant is also called a patent. The subject will be
considered by taking a succint view of, 1. The legislation of the
United States on the subject. 2. The patentee. 3. The subject to
be patented. 4. The caveat and preliminary proceedings. 5. The
proceedings to obtain a patent. 6. The patent. 7. The duty or tax
on patents. 8. Courts having jurisdiction in patent cases. 9.
Actions for violations of patents. §1. Legislation of the United
States. 2. The constitution of the United States authorizes
congress to pass laws " to, promote the progress of science and
the useful arts, by securing, for limited times, to authors and
inventors, the exclusive right of their respective writings and
discoveries." Art. 1, s. 8, n. 8. By virtue of this authority
congress can grant patents to inventors, and it rests in the
sound, discretion of the legislature to say when, and for what
length of time, and under what circumstances the patent for an
invention shall be granted. Congress may, therefore, grant a
patent which shall operate retrospectively by securing to the
inventor the use of his invention, though it was in public use
and enjoyed by the community at the time this act was passed . 3
Sumn. 535; 2 Story, R. 164. The first act passed under this
power is that which established the patent office on the 10th of
April, 1790, 1 Story, L. U. S. 80. There were several supplements
and modifications to this first law, namely, the acts passed
February 7, 1793, Idem, 300; June 7, 1794, Idem, 363; April 17,
1800, Idem, 753; July 3,1832, 4 Sharsw. cont. of Story, L. U.S.
2300; July 13, 1832, Idem, 2313.
3. These acts were repealed by the act of July 4, 1836, 4
Sharsw. cont. Story, L. U. S. 2504, which. enacts:
§21. That all acts and parts of acts theretofore passed on this
subject be, and the same are hereby repealed: Provided, however,
That all actions and processes, in law or equity sued out prior
to the passage of this act, may be prosecuted to final judgment
and execution, in the same manner as though this act had not been
passed, excepting and saving the application to any such action,
of the provisions of the fourteenth and fifteenth sections of
this act, so far as they maybe applicable thereto. And provided,
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also, That all applications and petitions for patents, pending at
the time of the passage of this act, in cases where the duty has
been paid, shall be proceeded with and acted on in the same
manner as though filed after the passage thereof.
4. The existing laws on the subject of patents are the act of
July 4, 1836, already mentioned; the acts of March 3, 1837;
Idem, 2546; March 3, 1839; 9 Laws U. S, 1019; August29,1842;
ch. 263, Pamph. Laws, 171; May 27, 1848. Minot's Stat. at Large,
U. S. 231. §2. Of the patentee.
5. Any person or persons having discovered or invented the
thing to be pa-tented, whether he be a citizen of the United
States or an alien, is entitled to a patent on fulfilling the
requirements of the law. Act of July 4, 1836, s. 6.
6. By the 10th section of the same act it is provided, That
where any person hath made, or shall have made, any new
invention, discovery or improvement, on account of which a patent
might by virtue of this act be granted, and, such person shall
die before any patent shall be granted therefor, the right of
applying for and obtaining such patent shall devolve on the
executor or administrator of such person, in trust for the heirs
at, law of the deceased, in case he shall have died intestate;
but if otherwise, then in trust for his devisees, in as full and
ample manner, and under the same conditions, limitations, and
restrictions, as the same was held, or might have been claimed or
enjoyed by such in his or her lifetime; and when application for
a patent shall be made by such legal representatives, the oath or
affirmation provided in the sixth section of this act, shall be
so varied as to be applicable to them.
7. And by the act of March 3, 1837, section 6, it is enacted,
That any patent hereafter to be issued, may be made and issued to
the assignee or assignees of the inventor or discoverer, the
assignment thereof being first entered of record, and the
application therefor being duly made, and the specifications duly
sworn to by the inventor. And in all cases, hereafter, the
applicant for a patent shall be held to furnish duplicate
drawings, Whenever the case admits of drawings, one of which to
be deposited in the office, and the other to be annexed to the
patent, and considered a part of the specification.
§3. The subject to be patented
8. Patents are granted, 1. For inventions and discoveries. 2.
For importations. 1. Patents for inventions and discoveries. By
the act, of July 4, 1836, sect. 6, it is enacted, that any person
or persons having discovered or invented any new and useful art,
machine,, manufacture, or composition of matter, or any new and
useful improvement on any art, machine, manufacture, or
composition of matter, not known or used by others before his or
their discovery or invention thereof, and not, at the time of his
application for a patent, in public use or on sale, with his
consent or allowance, as the inventor or discoverer, and shall
desire to obtain an exclusive property therein, may make
application in writing to the commissioner of patents, expressing
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such desire, and the commissioner on due proceedings had, may
grant a patent therefor.
9. The thing to be patented must be an invention Or discovery;
it must be new and useful.
10. - 1. The invention or discovery must be something which the
inventor has himself found out; some peculiar device or manner
of producing any given effect. A patent cannot, therefore, be
taken out for the elementary principles of motion, which
philosophy and science have discovered, but only for the manner
of applying them. 1 Gallis. 478; 2 Gallis. 51.
11. A patent may be taken out for an improvement on a machine
which is known and used; 3 Wheat. 454; but a mere change of
former proportions, will not entitle a party to a patent. 1
Gallis. 438; 2 Gallis. 51.
12. It is provided by the act of July 4, 1836, s. 13, that
whenever the original patentee shall be desirous of adding the
description and specification of any new improvement of the
original invention or discovery which shall have been invented or
discovered by him subsequent to the date of his patent, he may,
like proceedings being had in all respects as in the case of
original applications, and on the payment of fifteen dollars, as
hereinbefore provided, have the same annexed to the original
description and specification; and the commissioner shall
certify, on the margin of such annexed description and
specification, the time of its being annexed and recorded; and
the same shall thereafter have the same effect in law, to all
intents and purposes as though it had been embraced in the
original description and specification.
13. And by the act of March 3, 1837, s. 8, that, whenever
application shall be made to the commissioner for any addition of
a newly discovered improvement to be made on an existing patent,
or when ever a patent shall be returned for correction, and
re-issue, the specification of claim annexed to every such patent
shall be subject to revision and restriction, in the same manner
as are original applications for patents; the commissioner,
shall not add any such improvement to the patent in the one case,
nor grant the re-issue in the other case, until the applicant
shall have entered a disclaimer, or altered his specification of
claim in accordance with the decision of the commissioner; and
in all such cases the applicant, if dissatisfied with such
decision, shall have the same remedy and be entitled to the
benefit of the same privileges and proceedings as are provided by
law in the case of original applications for patents.
14. - 2. The thing patented must be a new and useful invention,
discovery or improvement.
15. Among inventors, he who is first in time, has a right to
the patent for the invention. Pet. C. C. R. 394.
16. But by the act of March 3, 1839, sect. 7, it is provided,
that every person or corporation who has, or shill have,
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purchased or constructed any newly invented machine, manufacture,
or composition of matter, prior to the application by the
inventor or discoverer for a patent, shall be held to possess the
right to use, and vend to others to be used, the specific
machine, manufacture, or composition of matter so made or
purchased, without liability therefor to the inventor, or any
other person interested in such invention; ana no patent shall
be held to be invalid by reason of such purchase, sale, or use,
prior to the application for a patent as aforesaid, except on
proof of abandonment of such invention to the public; or that
such purchase, sale, or prior use has been for more than two
years prior to such application for a patent.
17. By the term useful invention is meant an invention which
may be applied to some beneficial use in society, in
contradistinction to an invention which is injurious to morals,
to the health, or good order of society. 1 Mason, C. C. R. 302;
4 Wash. C. C; R. 9. The term is also opposed to that which is
frivolous or mischievous. 1 Mason, C. C. R. 182; Renouard, 177;
Perpigna, Man. des Inv. c. 2, s. 1, page 50. See 3 Car. & P. 502;
1 Pet. C. C. R. 480; 1 U. S. Law Journ. 563; 1 Paine, 203; 2
Kent, Com. 368, Dr; Phill. on Pat. c. 7, s. 14.
18. The act of August 29, 1842, sect, 3, provides that any
citizen or citizens, or alien or aliens, having resided, one year
in the United States, and taken the oath of his or their
intention to become a citizen or citizens, who by his, her, or
their own industry, genius, efforts, and expense, may have
invented or produced any new and original design for a
manufacture, whether of metal, or other material or materials, or
any new and original design for the printing of woolen, silk,
cotton, or other fabrics, or any new and original design for a
bust, statue, or has relief or composition in alto or basso
relievo, or any new and original impression or ornament, or to be
placed on any article of manufacture, the same being formed in
marble or other material, or any new and useful pattern, or
print, or picture, to be either worked-into or worked on, or
printed, or painted, or cast, or otherwise fixed on, any article
of manufacture, or any new and original shape or configuration of
ally article of manufacture not known or used by others before
his, her, or their invention or production thereof, and prior to
the time of his, her, or their application for a patent therefor,
and who shall desire or obtain an exclusive Property or right
therein to make, use, and sell and vend. the same, or copies of
the same, to others, by them, made, used, and sold, may make
application in writing to the commissioner of patents, expressing
such desire, and the commissioner, on due proceedings had, may
grant a patent therefor, as in the case. now of application for a
patent: Provided, That the fee in such cases which by the now
existing laws would be required of the particular applicant shall
be one-half the sum, and that the duration of said patent shall
be seven years, and that all the regulations and provisions which
now apply to the obtaining or protection of patents not
inconsistent with the provision's of this act, shall apply to
applications under this section.
2. Patents-for importations.
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19. It is enacted by the act of March 3, 1839, s. 6, that no
person shall be debarred from receiving a patent for any
invention or discovery, as provided in the act approved on the
fourth day of July, one thousand eight hundred and thirty-six, to
which this is additional, by reason of the same having been
patented in, a foreign country, more than six months prior to his
application: Provided, That the same shall not have been
introduced into public and common use, in the United States,
prior to the application for such patent: And provided, also,
That in all cages every such patent shall be limited to the term
of fourteen years from the date or publication of such foreign
letters-patent.
20. And by the act of July 4, 1836, s. 8, it is provided, that
nothing in this act contained shall be, construed to deprive an
origisal and true inventor of the right to a patent for his
invention, by reason of his having previously taken out
letters-patent therefor in a foreign country, and the same having
been published at any time within six mouths next preceding the
filing of his specification and drawing.
4. Of the caveat and other preliminary, proceedings.
21. The act of July 4, 1836, s. 12, provides that any citizen
of the United States, or alien who have been resident in the
United States one year next preceding, and shall have made oath
of his intention to become a citizen thereof, who shall have
invented any new art, machine, or improvement thereof, and shall
desire further time to mature the same, may, on paying to the
credit of the treasury, in manner as provided in the ninth
section of this act, the sum of twenty dollars, file in the
patent office a caveat, setting forth the design and purpose
thereof, and its principal and distinguishing characteristics,
and praying protection of his right, till he shall have matured
his invention - which sum of twenty dollars, in case the person
filing such caveat shall afterwards take out a patent for the
invention therein mentioned, shall be considered a part of the
sum herein required for the same. And such caveat shall be filed
in the confidential archives of the office, and preserved in
secrecy. And if application shall be made by any other person
within one year from the time of filing such caveat, for a patent
of any invention with which it may in any respect interfere, it
shall be the duty of the commissioner to deposit the description,
specifications, drawings, and model, in the confidential archives
of the office, and to give notice, by mail, to the person filing
the caveat, of such application, who shall, within three months
after receiving the notice, if he would avail himself of the
benfit of his caveat, file his description, specifications,
drawings, and model: and if, in the opinion of the commissioner,
the specifications of claim interfere with each other, like
proceeding& may be had in all respects as are in this act
provided in the case of interfering applications: Provided,
however, That no opinion or decision of any board of examiners,
under the provisions of this act, shall preclude any person
interested in favor of or against the validity of any patent
which has been or may hereafter be granted, from the right to
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contest the same in any judicial court in any action in which
its, validity may come in question.
22. And the same act, s. 8, directs, that whenever, the
applicant shall request it, the patent shall take date from the
time of the filing of the specification and drawings, not
however, exceeding six mouths prior to the actual issuing of the
patent; and on like request, and the payment of the duty herein
required, by any applicant, his specification and drawings shall
be filed in the secret archives of the office, until he shall
furnish the model and the patent be issued, not exceeding the
term of one year, the applicant being entitled to notice of
interfering application.
§5. Of the proceedings to obtain a patent.
23 . This section will be divided by considering the
proceedings when there is no opposition, and when there are
conflicting claims.
1. Proceedings without opposition
24. The sixth section of the act of July 4, 1836, directs, that
before any inventor shall receive a patent for any such new
invention or discovery, he shall deliver a written description of
his invention or discovery, and of the manner and process of
making, constructing, using, and compounding the same, in such
full, clear, and exact terms, avoiding unnecessary prolixity, as
to enable any person skilled in the art or science to which it
appertains, or with which it is most nearly connected, to make,
construct, compound, and use the same; and in case of any
machine, he shall fully explain the principle and the several
modes in which he has contemplated the application of that
principle or character by which it may be distiguished from other
inventions and shall particularly specify and point out the part,
improvement, or combination, which he claims as his own invention
or discovery. He shall, furthermore, accompany the whole with a
drawing, or drawings, and written references, where the nature of
the case admits of drawings, or with specimens of ingredients,
and of the composition of matter, sufficient in quantity for the
purpose of experiment, where the invention or discovery is of a
composition of matter; which descriptions and drawings, signed
by the inventor and attested by two witnesses; shall be filed in
the patent office; and be shall, moreover, furnish a model of
his invention, in all cases which admit of a representation by
model, of a convenient size to exhibit advantageously its several
parts. The applicant shall also make oath or affirmation that he
does verily believe that he is the original and first inventor or
discoverer of the art, machine, composition, or improvement, for
which he solicits a patent, and that he does not know or believe
that the same was ever known or used; and also of what country
he is a citizen; which oath or affirmation may, be made before
any person authorized by law to administer oaths.
25. The fourth section of the act of August 29, 1842, provides
that the oath required for applicants for patents, may be taken,
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when the applicant is not, for the time being, residing in the
United States, before any minister pleni-potentiary, charge d
affaires; consul, or commercial agent, holding a commission
under the government of the United States, or before any notary
public of the country in which such applicant may be.
26. And the act of March 3, 1837, sect. 13, provides that in
all cases in which an oath is required by this act, or by the act
to which this is additional, if the person of whom it is required
shall be conscientiously scru-pulous of taking an oath,
affirmation may be substituted therefor.
27. The seventh section of the act of July 4, 1836, further
enacts, that on the filing of any such application, description,
and specification, and the payment of the duty hereinafter
provided, the commissioner shall make or cause to be made, an
examination of the alleged new invention or discovery; and if,
on any such examination, it shall not appear to the commissioner
that the same had been invented or discovered by any other person
in this country prior to the alleged invention or discovery
thereof by the applicant, or that it had been patented or
described in any printed publication in this or any foreign
country, or had been in public use or on sale with the
applicant's consent or allowance prior to the application, if the
commissioner shall deem it to be sufficiently useful and
important, it shall be his duty to issue a patent therefor. But
whenever on such examination it shall appear to the commissioner
that the applicant wag not the original and first inventor or
discoverer thereof, or that any part of that which is claimed as
new had before been invented or discovered, or patented, or
described in any printed, publication in this or any foreign
country, as aforesaid, or that the description is defective and
insufficient, he shall notify the applicant thereof, giving him,
briefly, such information and, references as may be useful in
judging of the propriety of renewing his application, or of
altering his specification to embrace only that part of the
invention or discovery which is new. In every such case, if the
applicant shall elect to withdraw his application, relinquishing
his claim to the model, he shall be entitled to receive back
twenty dollars part of the duty required by this act, on filing a
notice in writing of such election in the patent office, a copy
of which, certified by the commissioner, shall be a sufficient
warrant to the treasurer for paying back to said applicant the
said sum of twenty dollars. But if the said applicant in such
case shall persist in his claim for a patent, with or without any
alteration of his specification, he shall be required to make
oath or affirmation anew in manner as aforesaid. And if the
specification and claim shall not have been so modified as in the
opinion of the commissioner, shall entitle the applicant to a
patent, he may, on appeal, and upon request in writing, have the
decision of the board of examiners, to be composed of three
disinterested persons, who shall be appointed for that purpose by
the secretary of state, one of whom at least, to be selected, if
practicable and convenient, for his knowledge and skill in the
particular art, manufacture, or branch of science to which the
alleged invention appertains; who shall be under oath or
affirmation for the faithful and impartial performance of the
Bouvier's Law Dictionary : P1 : Page 48 of 100
duty imposed upon them by said appointment. Said board shall be
furnished with a certificate in writing, of the opinion and
decision of the commissioner, stating the particular grounds of
his objection, and the part or parts of the invention which he
considers as not entitled to be patented. And the same board
shall give reasonable notice to the applicant, as well as to the
commissioner of the time and place of their meeting; that they
may have an opportunity of furnishing them with such facts and
evidence as they may deem necessary to. a just decision; and it
shall be the duty of the commissioner to furnish to the board of
examiners such information as he may possess relative to the
matter under their consideration. And on an examination and
consideration of the matter by such board, it shall be in their
power, or of a majority of them, to reverse the decision of the
commissioner, either in whole or in part; and their opinion
being certified to the commissioner, he shall be governed therby,
in the further proceedings to be had on such application:
Provided, however, That before a board shall be instituted in any
such case, the applicant shall pay to the credit of the treasury,
as provided in the ninth section of this act, (see 47,) the sum
of twenty-five dollars, and each of said persons so appointed
shall be entitled to receive for his services in each case, a sum
not exceeding ten dollars, to be determined and paid by the
commissioner out of any moneys in his hands, which shall be in
full compensation to, the persons who may be so appointed, for
their examination and certificate as aforesaid.
28. By the twelfth section of the act of March 3, 1839, the
commissioner of patents is vested with power to make all such
regulation's in respect to the taking of evidence to be used in
contested leases before him, as may be just and reasonable and so
much of the act of July 4, 1836, as provides for a board of
examiners, is thereby repealed.
29. And by the same act, sect. 11, it is provided, that in all
cases where an appeal is now. allowed by law from the decision of
the commissioner of patents to a board of examiners provided for
in the seventh section of the act to which this is additional,
the party, instead thereof, shall have a right to appeal to the
chief justice of the district court of the United States for the
district of Columbia, by giving notice thereof to the
commissioner, and filing in the patent office, within such time
as the commissioner shall appoint, his reasons of appeal,
specifically set forth in writing, and also paying into the
patent office, to the credit of the patent fund, the sum of
twenty-five dollars. And it shall be the. duty of said chief
justice, on petition, to hear and determine all such appeals, and
to revise such decisions in a summary manner, on the evidence
produced before the commissioner, at such early and convenient
time as he may appoint, first notifying the commissioner of the
time and place of hearing, whose duty it shall be to give notice
thereof to all parties who appear to be interested therein, in
such manner as said judge shall prescribe. The commissioner shall
also lay before the said judge all the original papers and
evidence in the case, together with the grounds of his decision,
fully set forth in writing, touching all the points involved by
the reasons of appeal, to which the revision shall be confined.
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And at the request of any party interested, or at the desire of
the judge, the commissioner and the examiners in the patent
office, may be examined under oath, in explanation of the
principles of the machine, or other thing for which a patent, in
such case, is prayed for. And it shall be the duty of said judge
after a hearing of any such case, to return all the papers to the
commissioner, with a certificate of his proce edings and
decision, which shall be entered of record in the patent office;
land such decision, so certified, shall govern the further
proceedings of the commissioner in such case, Provided, however,
That no opinion or decision of the judge in any such case, shall
preclude any person interested in favor or against the validity
of any patent, which has been or way hereafter be granted, from
the right to contest the same in any judicial court, in any
action in which its validity may come in question.
2. When there are conflicting claims.
30. It is enacted by the 8th section of the act of July 4,
1836, that whenever an application shall be made for a patent,
which, in the opinion of the commissioner, would interfore with
any other patent for which an application may be pending, or with
any unexpired patent which shall have been granted, it shall be
the duty of the commissioner to give notice thereof to such
appli-cants or patentees; as the case maybe; and if either
shall be dissatisfied with the decision of the commissioner on
the question of priority, right or invention, on a hearing
thereof, he may appeal from such decision, on the like terms and
conditions as are provided in the preceding section of this act
and like proceedings, shall be had, to determine which, or
whether either of the applicants is entitled to receive a patent
as prayed for.
31. And by the 16th section of the same act, that whenever
there shall be two interfering patents, or whenever a patent on
application shall have been refused on an adverse decision of a
board of examiners, on the ground that the patent applied for
would interfere with an unexpired patent previously granted, any
person interested in any such patent, either by assignment or
otherwise, in the one case, and any such applicant in the other,
may have remedy by bill in equity; and the court having
cognizance thereof, on notice to adverse parties and other due
proceedings had, may adjudge and declare either the patents void
in whole or in part, or inoperative and invalid in any particular
part or portion of the United States, according to the interest
which the parties in such suit may possess in the patent or the
inventions patented, and may also adjudge that such applicant is
entitled, according to the principles and provisions of this act,
to have and receive a patent for his invention, as specified in
his claim, or for any part thereof, as the fact of priority of
right or invention shall in any such case be made to appear. And
such adjudication, if it be in favor of the right of such
applicant, shall authorize the Commissioner to issue such patent,
on his filing a copy of the adjudication, and otherwise complying
with the requisitions of this act. Provided, however, that no
such judgment or adjudication shall affect the rights of any
persons except the parties to the action and those deriving title
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from or under them subsequent to the rendition of such judgment.
And the commissioner is vested by the 12th section of the act of
March 3, 1839, with powers to make such rules and regulations in
respect to the taking of evidence to be used in contested cases
before him, as may be just and reasonable.
32. The act of March 3, 1839, section 10, provides, that the
provisions of the sixteenth section of the before recited act
shall extend to all cases where the patents are refused for any
reason whatever, either by the commissioner of patents or by the
chief justice of the district of Columbia, upon appeals from the
decision of said commissioner, as well as where the same shall
have been refused on account of, or by reason of interference
with a previously existing patent; and in all cases where there
is ne opposing party, a copy of the bill shall be served upon the
commissioner of patents, when the whole of the expenses of the
proceeding shall be paid by the applicant, whether the final
decision shall be in his favor or otherwise.
§6. Of the patent.
33. This section will be divided by considering, 1. The form of
the patent. 2. The correction of the patent. 3. The special
provisions of the acts of congress occasioned by the burning of
the patent office. 4. The disclaimer. 5. The assignment of
patents. 6. The extension of the patent. 7. The requisites to be
observed after the granting of a patent to secure it.
1. Form of the patent.
34. The patent is to be issued in the form prescribed by the
act of congress. The fifth section of the act of July 4, 1836,
directs, that all patents issuing from said office shall be
issued in the name of the United States, and under the seal of
said office, and be signed by the secretary of state, and
countersigned by the commissioner of the said office, and shall
be recorded, together with the descriptions, specifications and
drawings, in the said office, in books to be kept for that
purpose. Every such patent shall contain a short description or
title of the invention or discovery, correctly indicating its
nature and design, and in its terms grant to the applicant or
applicants, his or their heirs, administrators, executors or
assigns, for a term not exceeding fourteen years, the full and
exclusive right and liberty of making, using, and vending to
others to be used, the said invention or discovery, referring to
the specifications for the particulars thereof, a copy of which
shall be annexed to the patent, specifying what the patentee
claims as his invention or discovery. It is usually dated at the
time of issuing it, but by a provision of the last mentioned act,
section 8, whenever the applicant shall request it, the patent
shall take date, from the time of filing, the specification and
drawings, not, however, exceeding six months prior to the actual
issuing of the patent.
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2. Correction of patent.
35. It is provided by the thirteenth section of the act of
July. 4, 1836, that whenever any patent which has heretofore been
granted, or which shall hereafter be granted, shall be
inoperative or invalid, by reason of a defective or insufficient
description or specification, or by reason of the patentee
claiming in his specification as his own invention, more than he
had or shall have a right to claim as new; if the error has, or
shall have arisen b y inadvertency, accident or mistake, and
without any fraudulent or deceptive intention, it shall be lawful
for the c6mmissioner, upon the surrender to him of such patent,
and the payment of the further duty of fifteen dollars, to cause
a new patent to be issued to the said inventor, for the same
invention, for the residue of the period then unexpired for which
the original patent was granted, in accordance with the
patentee's corrected description and specification. And in the
event of his death, or any assignment by him made of the original
patent, a similar right shall vest in his executors,
administrators, or assignees. And the patent, so reissued,
together with the corrected description and specification, shall
have the same effect and operation in law, on the trial of all
actions, hereafter commenced for causes subsequently accruing, as
though the same had been originally filed in such corrected form,
before the issuing out of the original patent. And whenever the
original patentee shall be desirous of adding the description and
specification of any new improvement of the original invention or
discovery which shall have been invented or discovered by him
subsequent to the date of his patent, he may, like proceedings
being had in all respects as in the case of original
applications, and on the payment of fifteen dollars, as
hereinbefore provided, have the same annexed to the original
description and specification; and, the commissioner shall
certify, on the margin of such annexed description and
specification, the time of its being annexed and recorded; and
the same shall thereafter have the same effect in law, to all
intents and purposes, as though it had been embraced in the
original description and specification.
36. And it is enacted by the act of March 3, 1837, section 5,
that, whenever a patent shall be returned for correction and
reissue under the thirteenth section of the act to which this is
additional, and the patentee shall desire several patents to be
issued for distinct and separate parts of the thing patented, he
shall first pay, in manner and in addition to the sum provided by
that act, the sum of thirty dollars for each additional patent so
to be issued; Provided, however, that no patent made prior to
the aforesaid fif-teenth day of December, 1836, shall be
corrected and reissued until a duplicate of the model and drawing
of the thing as originally invented, verified by oath as shall be
required by the commissioner, shall be deposited in the patent
office: Nor shall any addition of an improvement be made to any
patent heretofore granted, nor any new patent to be issued for an
improvement made in any machine, manufacture, or process, to the
original inventor, assignee or possessor, of a patent therefor,
nor any disclaimer be admitted to record, until a duplicate model
and drawing of the thing originally intended, verified as
aforesaid, shall have been deposited in the patent office, if the
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commissioner shall require the same; nor shall any patent be
granted for an invention, improvement, or discovery, the model or
drawing of which shall have been lost, until another model and
drawing, if required by the commissioner, shall, in like manner,
be deposited in the patent office:
37. And in all such cases, as well as in those which may arise
under the third section of this act, the question of compensation
for such models and drawings, shall be subject to the judgment
and decision of the commissioners provided for in the fourth
section, under the same limitations and restrictions as are
therein prescribed.
3. Special provisions occasioned by the burning the patent
office.
38. The act of March 3, 1837, was passed to remedy the
inconveniences arising from the burning of the patent office. It
is enacted,
39. - Sect. 1. That any person who may be in possession of, or
in any way interested in, any patent for an invention,
disocovery, or improvement, issued prior to the fifteenth day of
December, in the year of our Lord one thosand eight hundred and
thirty-six, or in an assignment of any patent, or interest
therein, executed, and recorded prior to the said fifteenth day
of December, may, without charge, on presentation or transmission
thereof to the commissioner of patents, have the same recorded
anew in the patent office, together with the descriptions,
specifications of claim and drawings annexed or belonging to the
same; and it shall be the duty of the commisioner to cause the
same, or any authenticated copy of the original record,
specification, or drawing which he may obtain, to be transcribed
and copied into books of record to be kept for that purpose; and
wherever a drawing was not originally annexed to the patent and
referred to in the specification and drawing produced as a
delineation of the invention, being verified by oath in such
manner as the commissioner shall require, may be transmitted and
placed on file, or copied as aforesaid, together with the
certificate of the oath; or such drawings may be made in the
office, under the direction of the commisioner, in conformity
with the specification. And it shall be the duty of the
commissioner to take such measures as may be advised and
determined by the board commissioners provided for by the fourth
section, of this act, to obtain the patents, specifications, and
copies aforesaid, for the purpose of being so transcribed and
recorded. And it shall be the duty of each of the several clerks
of the judicial courts of the United States, to transmit, as soon
as may be, to the commissioner of the patent office, a statement
of all the authenticated copies of patents, descriptions,
specifications, and drawings of inventions and discoveries made
and executed prior to the aforesaid fifteenth day of December,
which may be found on the files of his office; and also to make
out and transmit to said commissioner for record as aforesaid, a
certified copy of every such patent, description, specification,
or drawing, which shall be specially required by such
commissioner.
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40. - Sect. 2. That copies of such record and drawings,
certified by the commissioner, or, in his absence, by the chief
clerk, shall be prima facie evidence of the particulars of the
invention and of the patent granted therefore, in any judicial
court of the United States, in all cases where copies of the
original record or specification and drawings would be evidence,
without proof of the loss of such originals and no patent issued
therefor by the patentee or other person inprior to the
aforesaid, fifteenth day of December, shall, after the first day
of June next, be received in evidence in, any of the said courts
in behalf of the patentee or other person who shall be in
possession of the same, unless it shall have been so recorded
anew, and a drawing of the invention, if separate from the
patent, verified as, aforesaid, deposited in the patent office;
nor shall any written assignment of any such patent, executed
and, recorded prior to the said fifteenth day of December, be
received in evidence in any of the said courts in behalf of the
assignee or other person in possession thereof, until it shall
have been so recorded anew.
41. - Sect. 3. That whenever it shall appear to the
commissioner that any patent was destroyed by the burning of the
patent office building on the aforesaid fifteenth day of
December, or was otherwise lost prior thereto, it shall be his
duty, on application terested therein, to issue a new patent for
the same invention or discovery bearing the date of the original
patent, with his certificate thereon that it was made and issued
pursuant to the provisions of the third section of this act, and
shall enter the same of record: Provided, however, That before
such patent shall be issued, the applicant therefor shall deposit
in the patent office a duplicate, as near as may be, of the
original model, drawings, and description, with specification of
the invention or discovery, verified by oath, as shall be
required by the commissioner; and such patent and copies of such
drawings and descriptions, duly certified, shall be admissible as
evidence in any judicial court of the United States, and shall
protect the rights of the patentee, his administrators, heirs and
assigns, to the extent only in which they would have been
protected by the original patent and specification.
42. The act of August 29, 1842, sect. 2, extends the provisions
of the last section to patents granted prior to the said
fifteenth day of December, though they may have been lost
subsequently; provided, however, the same shall not have been
recorded anew under the provisions of said act.
4. Of the disclaimer.
43. The act of March 3, 1837 sect. 7, authorizes any patentee
who shall have, through inadvertence, accident, or mistake, made
his specification of claim too broad, claiming more than that of
which he was the original or first inventor, some material and
substantial part of the thing patented being truly and justly his
own, any such patentee, his administrators, executors, and
assigns, whether of the, whole or of a sectional interest
Bouvier's Law Dictionary : P1 : Page 54 of 100
therein, may make disclaimer of such parts of the thing patented
as the disclaimant shall not claim to hold by virtue of the
patent or assignment, stating therein the extent of his interest
in, such patent; which disclaimer shall be in writing, attested
by one or more witnesses, and recorded in the patent office, on
payment by the person disclaiming, in manner as, other patent
duties are required by law to be paid, of the sum of ten dollars.
And such disclaimer shall thereafter be taken and considered as
part of the originals specification, to the extent of the
interest which shall be possessed in the patent or right secured
thereby, by the disclaimant, and by those claiming by or under
him subsequent to the record thereof. But no such disclaimer
shall affect any action pending at the time of its being filed,
except so far as may relate to the question of unreasonable
neglect or delay in filing the same.
5. Assignment of patents.
44. By virtue of the act of July 4, 1836, sect. 11,
every-patent shall be assignable in law, either as to the whole
interest, or, any undivided part thereof, by any instrument in
writing; which assignment, and also every grant and conveyance
of the exclusive right under any patent, to make and use, and to
grant to others to make and use, the thing patented within and
throughout any, specified part or portion of the United States,
shall be recorded in the patent office within three months from
the execution thereof. This act required the payment of a fee of
three dollars to be paid by the assignee, but this provison has
been repealed by the act of March 3, 1839, s. 8, and such
assignments, grants, and conveyances, shall, in future, be
recorded without any charge whatever. But, by the act of May 27,
1848, Minot's. Stat. at Large, U. S. 231, it is enacted, That
hereafter the commissioner of patents shall require a fee of one
dollar for recording any assignment, grant or conveyance, of the,
whole or any part of the interest in letters-patent, or power of
attorney, or license to make or use the things patented, when
such instrument shall not exceed three hundred words; the sum of
two dollars when it shall exceed three hundred, and shall not
exceed one thousand words and the sum of three dollars when it
shall exceed one thousand words; which fees shall in all cases
be paid in advance.
6. The extension of the patent.
45. The act of July. 4, 1836, sect. 18; directs, That whenever
any patentee of an invention or discovery shall desire an
extension of his patent beyond the term of its limitation, be may
make application therefor, in writing, to the commissioner of the
patent office, setting forth the grounds thereof, and the
commissioner shall, on the applicant's paying the sum of forty
dollars to the treasury, as in the case of an original
application, for a patent, cause to be published, in one or more
of the principal newspapers in the city of Washington, and in
such other paper or papers as he may deem proper, published in
the section of country most interested adversely to the extension
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of the patent, a notice of such application and of the time and
place when and where the same will be considered, that any,
person may appear and show cause why the extension should not be
granted. And the secretary of state, the commissioner of the
patent office, and the solicitor of, the treasury, shall
constitute a board to hear and decide upon the evidence produced
before them both for and against the extension, and shall sit for
that purpose at the time and place designated in the published
notice thereof. The patentee shall furnish to said board a
statement, in writing, under oath, of the ascertained value of,
the invention, and of his receipts and expenditures, sufficiently
in detail to exhibit a true and faithful account of loss and
profit in any manner accruing to him from and by reason of said
invention. And if, upon a hearing of the matter, it shall appear
to the full and entire satisfaction of said board, having due
regard to the public interest therein, that it is just and proper
that. the term of the patent should be extended by reason of the
patentee, without neglect or fault on his part, having failed to
obtain, from the use and sale of his invention, a reasonable
remuneration for the time, ingenuity and expense bestowed upon
the same, and the introduction thereof into use, it shall be the
duty of the commissioner to renew and extend the patent, by
making a thereon of such extension, for the term of seven years
from and after the expiration of the first term; which
certificate, with a certificate of said board of their judgment
and opinion as aforesaid, shall be entered on record in the
patent office; and thereupon the said patent shall have the same
effect in law as though it had been originally granted for the
term of twenty-one years. And the benefit of such, renewal shall
extend to assignees and grantees of the right to use the thing
patented, to the extent of their respective interest therein:
Provided, however, That no extension of a patent shall be granted
after the expiration of the term for which it was originally
issued.
7. Requisites to secure the patent.
46. The act of August 29, 1842, section 6, requires, That all
patentees and and assingees of patents hereafter granted, are
hereby required to stamp, engrave, or cause to be stamped or
engraved, on each article vended, or offered for sale, the date
of the patent; and if any person or persons, patentees, or
assignees, shall neglect to do so, he, she, or they, shall be
liable to the same penalty, to be recovered and disposed of in
the manner specified in the foregoing fifth section of this act.
See 49.
§7. Duty or tax on patents.
47. The tax or duty on patents is not the same in all cases,
foreigners being required to pay a greater sum than citizens, and
the subjects of the king of Great Britain a greater sum than
other foreigners. The ninth section of the act of July 4, 1836,
requires, That before any application for a patent can be
considered by the commissioner as aforesaid, the applicant shall
pay into the treasury of the United States, or into the patent
office, or into any of the deposit banks to the credit of the
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treasury, if he be a citizen of the United States, or an alien,
and shall have been resident in the United States for one year
next preceding, and shall have made oath of his intention to
become a citizen thereof, the sum of thirty dollars; if a
subject of the king of Great Britain, the sum of five hundred
dol1ars; and all other persons the sum of three hundred dollars,
for which payment duplicate receipts shall be taken, one of which
to be filed in the office of the treasurer. And the moneys
received into the treasury under this act, shall constitute a
fund for the payment of the salaries of the officers and clerks
herein provided for, and all other expenses of the patent office,
and to be called the patent fund.
48. When an applicant withdraws his application before the
issuing of the patent, he is entitled to receive back twenty
dollars of the sum he may have paid into the treasury. Act of
July 4, 1836, sect. 7. And the act of March 3, 1837, section 12,
enacts, That whenever the application of any foreigner for a
patent shall be rejected and withdrawn for want of novelty in the
invention, pursuant to the seventh, section of the act to which
this is additional, the certificate thereof of the commissioner
shall be a sufficient warrant to the treasurer to pay back to
such applicant two-thirds of the duty he shall have paid into the
treasury on account of such application. When money has been paid
by mistake, as for foes accruing at the patent office, it must,
by the direction of the act of August 29, 1842, section 1, be
refunded.
§8. Penalty for use of patentee's marks.
49. The act of August 29, 1842, s. 5, declares, That if any
person or persons shall paint or print, or mould, cast, carve, or
engrave, or stamp, upon any thing made, used, or sold, by him,
for the sole making or selling which he hath not or shall not
have obtained letters-patent, the name or any imitation of the
namer of any other person who hath or shall have obtained
letters-patent for the sole making and vending of such thing,
without consent of such patentee or his assigns or legal
representatives; or if any person, upon any such thing not
having been purchased from the patentee, or some person who
purchased it from or under such patentee, or not having the
license or consent of such patentee, or his assigns or legal
representatives, shall write paint, print, mould, carve, engrave,
stamp, or otherwise make or affix the word "patent," or the words
"letters-patent," or the word "patentee," or any word or words of
like kind, meaning, or import, with the view or intent of
imitating or counterfeiting the stamp, mark, or other device of
the patentee, or shall affix the same or any word, stamp, or
device, of like import, on any unpatented article, for the
purpose of deceiving the public, he, she, or they, so offending,
shall be liable for such offence, to a penalty of not less than
one hundred dollars, with costs, to be recovered by action in any
of the circuit courts of the United States, or in any of the
district courts of the United States, having the powers and
jurisdiction of a circuit court; one-half of which penalty, as
recovered, shall be paid to the patent fund, and the other half
to any person or persons who shall sue for the same.
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§9. Courts having jurisdiction in patent cases.
50. It is enacted by the 17th section of the act of July 4,
1836, That all actions, suits, controversies, and cases arising
under any law of the United States, granting or confirming to
inventors the exclusive right to their inventions or.
discoveries, shall be originally cognizable, as well in equity as
at law, by the circuit courts of the United States, or any
district court having the powers and jurisdiction of a circuit
court which courts shall have power, upon bill in equity filed by
any party aggrieved, in any such case, to grant injunctions,
according to the course and principles of courts of equity, to
prevent the violation of the rights of any inventor as secured to
him by any law of the United States on such terms and conditions
as said courts may deem reasonable: Provided, however, That from
all judgments and decrees, from. any, such court rendered in the
premises, a writ of error or appeal, as the case may require,
shall lie to the supreme court of the United States, in the same
manner and under the same circumstances as is now Provided by law
in other judgments and decree, of circuit courts, and in all
other case's in which the court shall deem, it reasonable to
allow the same.
§10. Actions for violation of patent rights.
51. The act of July 4, 1836, section 14, provides, That
whenever in any action for damages for making, using, or selling
the thing whereof the exclusive right is secured by any patent
heretofore granted, or by any patent which may hereafter be
granted, a verdict shall be rendered for the plaintiff in such
action, it shall be in the power of the court to render judgment
for any sum above the amount found by such verdict as the actual
damages sustained by the plaintiff, not exceeding three times the
amount thereof, according to the circumstances of the case, with
costs; and such damages may be recovered by action on the case,
in any court of competent jurisdiction, to be brought in the name
or names of the person or persons interested, whether as
patentee, assignees, or as grantees of the exclusive right within
and throughout a specified part of the United States.
52. - Sect. 15. That the defendant in any such action shall be
permitted to plead the general issue, and to give this act, and
any special matter in evidence, of which notice in writing may
have been given to the plaintiff or his attorney, thiry days
before trial, tending to prove that the description and
specification filed by plaintiff does not contain the whole truth
relative to his invention or discovery, or that it contains more
than is necessary to produce the described effect; which
concealment or addition shall fully appear to have, been made for
the purpose of deceiving the public, or that the patentee was
not, the original and first inventor or discoverer of the thing
patented, or of a substantial and miaterial art thereof claimed
as new, or that it had teen described in some public work
anterior to the supposed discovery thereof by the patentee, or
had been in public use, or on sale with the consent and allowance
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of the patentee before his application for a patent, or that, he
had surreptitiously or unjustly obtained the patent for that
which was in fact invented or discovered by another, who was
using reasonable diligence in adapting and perfecting the same;
or, that the patentee if an alien at the time the patent was
grauted, had failed and neglected for the space of eighteen
months from the date of the patent, to put and continue on sale
to the public, on reasonable terms, the invention or discovery
for which the patent issued; in either of which cases judgment
shall be rendered for the defendant, with costs. And whenever the
defendant relies in his defence on the fact of a previous
invention, knowledge, or use of the thing patented, be shall
state, in his notice of special matter, the names and places of
residence of those whom he intends to prove to have possessed a
prior knowledge of the thing and where the same had been used:
Provided, however, that whenever it shall satisfactorily appear
that the patentee, at the time of making his application for the
patent, believed himself to be the first inventor or discoverer
of the thing patented the same shall not be held to be void on
account of the invention or discovery or any part thereof having
been before known or used in any foreign country, it not
appearing that the same or any substantial part thereof, had
before been patented or described in any printed publication. And
provided, also, that whenever the plaintiff shall fail to sustain
his action on the ground that in his specification of claim is
embraced more than that of which he was the first inventor, if it
shall appear that the defendant had used or violated any part of
the invention justly and truly specified and claimed as new, it
shall be in the power of the court to adjudge and award as to
costs as may appear to be just and equitable.
53. This last section has been modified by the act of March 3,
1837, which enacts as follows: Section 9, That anything in the
fifteenth section of the act to which this is additional to the
contrary notwithstanding That, whenever by mistake, accident, or
inadvertence, and without any wilful default or intent to defraud
or mislead the public, any patentee shall have in his
specification claimed to be the original and first inventor or
discoverer of any material or substantial part of the thing
patented, of which he was not the first and original inventor,
and shall have no legal or just right to claim the same in every
such, case the patent shall be deemed good and valid for so much
of the invention or discovery as shall be truly and bona fide his
own: Provided, it shall be a material and substantial part of
the thing patented, and be definitely distinguishable from the
other parts so claimed without right as aforesaid. And every such
patentee, his executors, administrators and assigns, whether of
the whole or of a sectional interest therein, shall be entitled
to maintain a suit at law or in equity on such patent for any
infringement of such part of the invention or, discovery as shall
be bona fide his own as aforesaid, notwithstanding the
specification may embrace more than he shall have any legal right
to claim. But, in every such case in which a judgment or verdict
shall be rendered for the plaintiff he shall not be entitled to
recover costs against the defendant, unless he shall have entered
at the patent office, prior to the commencement of the suit, a
disclaimer of all that part of the thing patented which were so
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claimed without right: Provided, however, That no person
bringing any such suit shall be entitled to the benefits of the
provisions contained in this section, who shall have unreasonably
neglected or delayed to enter at the patent office a disclaimer
as aforesaid. See Bac. Ab. Monopoly Id. Prerogative, F 4; Phill.
on Pat.; Fessend. on Pat.; Carpm. on Pat.; Hand on Pat.;
Webst. on Pat; Coll. on Pat.; Gods. on Pat.; Holr. on Pat.;
Smith on Pat.; Drewry's Patent Law Abandonment Act; Davies'
Collection of Cases on the Law of Patents; Rankin's Analysis of
the Law of Patents. Among the French writers are Perpigna on
Patents; written in English'; and the Manuel of the same
author, in French; and the works of Renouard, Dalloz, Molard,
and Regnault. See the various Digests h. t. and particularly
Peters' Digest, h. t.
PATENT FRENCH. The following points in relation to the patent
laws of France will be found useful to those who have invented
valuable machinery, and who are desirous of availing themselves
of the patent laws of that country: -
27 - §1. To whom patents are granted. All persons may obtain
patents in this country, whether they are men or women, adults or
infants, Frenchmen or foreigners, and in general all persons who
fulfil the conditions required by the law in order to obtain
patents.
3. It is not requisite that the applicant should be present,
but the application must be made in his name.
4. - §2. The different kinds of patents. There are three
principal kinds of patents. 1. Patents for inventions, (brevets
d' invention.) 2. Patents for improvements, (brevets de
perfectionnement.) 3. Patents for importa tions, (brevets
d'importations.) But as patents may be taken for a combination of
the above, there may be added, by such combination, four others,
namely; 5. Patents for invention and improvements, (brevets
d'invention et de perfectionnemen t.) 6. Patents for invention
and importation, (brevets d'invention et d'importation.) 7.
Patents for importation and improvement, (brevets d'importation
et de perfectionnement.) 8. Patents for importation, invention
and improvement (brevets d'invention, et perfectionnement et d'
importation.)
5. The forms prescribed to obtain these several kinds of
patents are exactly, the same, the only difference consists in
the declaration of the applicant, which must be in conformity
with the kind of patent he desires to obtain.
6. The applicant himself has the right to fix the number of
years for, which he desires to have his patent, when he applies,
to have his request registered at the prefecture. He may ha ve it
for five, ten, or fifteen years. And this period he has a right
to change until the patent has been signed. But with regard to
patents for importations, the duration of the patent cannot
extend beyond the period for which there is a patent in the
country, from which the importation has been made.
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7. Patents, other than for importation, may be extended as to
time. There are two species of prolongation; the first, within
fifteen years; the second, beyond fifteen years.
8. - §3. Cost of patents. The tax, as it is called, which must
be paid in order to obtain a patent, varies according to the
duration of the patent. This tax may be paid in cash or by
instalments. When paid in cash, it is as follows: 1. For, five
years, 300 francs, about 56 dollars and 40 cents. 2. For ten
years, 800 francs, about 94 dollars. 3. For fifteen years, 1500
francs, about 282 dollars; besides some office expenses,
amounting to from ten to fifteen dollars.
9. - §4. Foreign patents. The patentee in France cannot obtain
a patent in a foreign country, without losing his rights in
France; but this provision is easily eluded by anotber person
taking out the patent in the foreign country, when patents for
importations are granted. Perpigna, Manuel des Inventeurs, &o.,
c. 3, 5, p. 90.
PATENT LAWS OF GREAT BRITAIN AND IRELAND. The patent laws of
Great Britain and Ireland will be briefly considered by taking a
view of the persons to whom patents will be granted; the
different kinds of patents; the time for which they are granted;
and the expenses attending them.
2. - §1. To whom patents are granted. Both foreigners and
subjects may obtain letters-patent; but inasmuch as the
applicant must accompany his petition by a declaration made
before a master in chancery, or a master extraordinary in
chancery, that he has made such an invention; that he is the
true and first inventor thereof; or that it is new in the
kingdom, according to the special circumstances of the case, the
applicant must be present in Great Britain.
3. - §2 The different kinds of patents. This will be considered
by taking a view, first, of the object of a patent, and secondly,
the territory over which a patent extends.
4. - 1. The thing patented must be, 1. A discovery or invention
made by the applicant himself, in the United Kingdom. 2. The
introduction or importation of an invention known abroad, and in
this case, the introducer is the true and first inventor, within
the realm. 3. Though not absolutely the true and first inventor,
by reason of some one else having made the same invention and
kept it secret, yet the invention must have been made public by
the applicant, and as the first publisher, the applicant will be
entitled to letters-patent. Novelty and utility are essential
conditions of the grant, but it is of no consequence whether the
discovery was known or not, in a country foreign to the United
Kingdom. Webst. on Pat. 11 and 70, note w. A recent act of
parliament, passed July 1, 1852, (15 & 16 Viet. cap. 83,) amended
the English patent' system in several important particulars. The
cardinal features of the new system are: 1, protection from the
day of the application 2, one patent for the United Kingdom; 3,
moderate cost and periodical paywent; 4, printing and publishing
of specifications; 5, one office of patents and specifications.
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Webster's New Patent Law, p. 41. By the 18th sec. of said act,
letters patent are sealed with the great seal of the United
Kingdom, and extend to the whole of the United Kingdom of Great
Britain and Ireland, the Channel Islands, and the Isle of man;
also, to the colonies or plantations, or such of them as the
applicant may designate in his petition for the letters patent
and the law officer of the crown shall insert, in his warrant for
the seal ing of the patent. The patent may bear date as of the,
day of the application, or of the sealing, or of any intermediate
day. The patent is granted for fourteen years, subject however to
the condition that it shall be void at the expiration of three
years and of seven years respectively from the date thereof,
unless before the expiration of the said three years and seven
years, stamps of the value of X50 and X100 respectively, be
affixed to the letters patent. The cost of obtaining letters
patent is, in the first instance, X20 if the patent is unopposed;
if opposed, there are additional fees amounting to nearly X5.
By sec. 26, letters patent obtained in the United Kingdom for
patented foreign inventions are not to continue in force after
the expiration of the foreign patent.
PATENT, PRUSSIAN. This subject will be considered by taking a
view of the persons who may obtain patents; the nature of the
patent; and the duration of the right.
2. - §1, Of the persons who may obtain patents. Prussian
citizens or subjects are alone entitled to a patent. Foreigners
can not obtain one.
3. - §2. Nature of the patents. Patents are granted in Prussia
for an invention when the thing has been discovered or invented
by the applicant. For an improvement, when considerable
improvement has been made to a thing before known. And for
importation, when the thing has been brought from a foreign
country and put in use in the kingdom. Patents may extend over
the whole country or only over a particular part.
4. - §3. Duration of patents. The patent may at the choice of
the applicant, be for any period not less than six months nor
more than fifteen years.
PATENT, ROMAN. The Roman patents will be considered by taking a
view of the persons to whom they may be granted; the different
kinds of patents; the cost of a patent; and the obligations of
the patentee.
2. - §1. To whom patents are granted. Every person, whether a
citizen of the estates of the pope or foreigner, man or woman,
adult or infant, may obtain a patent for an invention, for an
improvement, or for importation, by fulfilling the conditions
prescribed in order to obtain a grant of such titles. Persons who
have received a patent from the Roman government may, afterwards,
without any compromise of their rights or privileges, receive a
patent in a foregn country.
3. The different kinds of patents. In the Roman estates there
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are granted patents for invention, for improvements, and for
importations.
4. - 1st. Patents for inventions are granted for, 1. A new kind
of important culture. 2. A new and useful art, before unknown. 3.
A new and useful process
of culture or of manufacture. 4. A new natural production. 5. A
new application of a means already, known.
5. - 2d. Patents for improvements may be granted for any useful
improvement made to inventions already known and used in the
Roman states.
6. - 3d, Patents for importations are granted in two cases,
namely: 1. For the introduction of inventions already patented
in a foreign country, and the privilege of which patent yet
continues. 2. For the introduction of an invention known and
freely used in a foreign country, but not yet used or known in
the Roman states.
7. - 3. Cost of a patent. The cost of a patent is fixed at a
certain sum per annum, without regard to the length of time for
which it may have been granted. It varies in relation to patents
for inventions and importation. It is ten Roman crowns per annum
for a patent for invention and improvement, and of fifteen crowns
a year for a patent for importation.
8. - §4. Obligation of the patentee. He is required to bring
into uue his invention within one year after the grant of the
patent, and not to suspend the supply for the space of one year
during the time the privilege shall last.
9. He is required to pay one balf of the tax or expense of his
patent on receiving his patent, and the other half during the
first month of the second portion of its, duration.
PATENT-OFFICE. An office bearing this name was established by
law, and by the act Of congress of July 4, 1836, which repeals
all acts theretofore passed in relation to patents, 4 Sharsw.
cont. of Story's L. U. S. 2504, it is provided, §1. That there
shall be established and attached to the department of state, an
office to be denominated the patent office; the chief officer of
which shall be called the commissioner of patents, to be
appointed by the president, by and with the advice and consent of
the senate, whose duty it shall be, under the direction of the
secretary of state, to superintend, execute, and perform, all
such acts and things touching and respecting the granting and
issuing of patents for new and useful discoveries, inventions,
and improvements, as are herein provided for, or shall hereafter
be, by law, directed to be done and performed, and shall have the
charge and custody of all the books, records, papers, models,
machines, and all other things belonging to said office. And said
commissioner, shall receive the same compensation as is allowed
by law to the commissioner of the Indian department, and shall be
entitled to send and receive letters and packages by mail,
relating to the businesss of the office, free of postage.
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2. - §2. That there shall be in said office, an inferior
officer, to be appointed by the said principal officer, with the
approval of the secretary of state, to receive an annual salary
of seventeen hundred dollars, and to be called the chief clerk of
the patent-office; who in all cases during the necessary absence
of, the commissioner, or when the said 'principal office shall
become vacant, shall have the charge and custody of the seal, and
of the records, books, papers, machines, models, and all other
things belonging to the said office, and shall perform the duties
of commissioner during such vacancy. And the, said commissioner
may also, with like approval, Appoint an examining Clerk, at an
annual salary of fifteen hundred dollars; two other clerks at
twelve hundred dollars each, one of whom shall be a competent
draughtsman; one other clerk at one thousand dollars; a
machinist at twelve hundred and fifty dollars; and a messenger
at seven hundred dollars. And said commissioner, clerks, and
every other person appointed and employed in said office, shall
be disqualified, and interdicted from acquiring or taking, except
by inheritance, daring the, period for which they shall hold
their appointments, respectively, any right or interest, directly
or indirectly, in any patent for an invention or discovery which
has been, or may hereafter be granted.
3. - §3. That the said principal officer, and every other
person to be appointed in the said office, shall, before he
enters upon the duties of his office or appointment, make oath or
affirmation, truly and faithfully to execute the trust committed
to him. And the said commissioner and the chief clerk shall also,
before entering upon their duties, severally give bond with
sureties to the treasurer of the United States, the former in the
sum of ten thousand dollars, and the latter, in the sum of five
thousand dollars, with condition to render a true and faithful
account to him or his successor in office, quarterly of all
moneys which shall be by them respectively received for duties on
patents, and for copies of records, and drawings, and all other
moneys received by virtue of said office.
4. - §4. That the said commissioner shall cause a seal to be
made and provided for the said office, with such device as the
president of the United States shall approve, and copies of any
records, books, papers, or drawings, belonging to the said
office, under the signature of the said commissioner, or when the
office shall be vacant, under the signature of the chief clerk,
with the said seal affixed, shall be competent evidence in all,
cases in which the original records, books, papers, or drawing,
could be evidence. And any person making application therefor,
may have certified copies of the records, drawings, and other
papers deposited in said office, on paying, for the written
copies, the sum of ten cents for, every page of one hundred
words; and for copies of drawing, the reasonable expense of
making the same.
PATENTEE. He to whom a patent has been granted. The term is
usually applied to one who has obtained letters-patent for a new
invention.
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2. His rights are, 1. To make, sell and enjoy the profits,
during the existence, of his rights, of the invention or
discovery patented. 2. To recover damages for a violation of such
rights. 3. To have an injunction to prevent any infringement of
such rights.
3. His duties are to supply the public, upon reasonable terms,
with the thing patented.
PATER. Father. A term used in making genealogical tables.
PATER FAMILLIAS, civil law. One who was sui juris and
consequently was not either under parental power, nor under that
of a master; a child in his cradle, therefore, could have been
pater familias, if he had neither a master nor a father. Lec.
Elem. §127, 128.
PATERNA PATERNIS. This expression is used in the French law to
signify that in a succession, the property coming from the father
of the deceased, descends to his paternal relations.
PATERNAL. That which belongs to the father or comes from him:
as, paternal power, paternal relation, paternal estate, paternal
line. Vide Line.
PATERNAL POWER. Patria potestas, The, authority lawfully
exercised by parents, over their children. It will be proper to
consider, 1. Who are entitled to exercise this power. 2. Who are
subject to it. 3. The extent of this power.
2. - 1. As a general rule the father is entitled to exert the
paternal power over his children. But for certain reasons, when
the father acts improperly, and against the interest of those
over whom nature and the law have given him authority, he loses
his power over them. It being a rule that whenever the good of
the child requires it, the courts will deliver the custody of the
children to others than the father. And numerous instances may be
found where, for good reasons, the custody will be given to the
mother.
3. The father of a bastard child has no control over him; the
mother has the right to the custody and control of such child. 2
Mass. 109; 12 Mass. 887.
4. - 2. All persous are subject to this power until they arrive
at the full age of twenty-one years. A father may, however, to, a
certain extent, deprive himself of this unlimited paternal power,
first, by delegating it to others, as when he binds his son an
apprentice; and, secondly, when he abandons his children, and
permits them to act for themselves. 2 Verm. Cas. 290; 2 Watts,
408 4 S. & R. 207; 4 Mass. 675.
5. - 3. The principle upon which the law is, founded as to the
extent of paternal power is, that it be exerted for the benefit
of the child. The child is subject to the lawful commands of the
father to attend to his business, because by being so subjected
he acquires that discipline and the practice of attending to
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business, which will be useful to him in after life. He is liable
to proper correction for the same reason. 1 Bouv. Inst. n.
326-33. See Correction; Father; Mother; Parent.
PATERNAL PROPERTY. That which descends or comes from the father
and other ascendants, or collaterals of the paternal stock.
Domat. Liv. Prel. tit, 3, s. 2.
PATERNITY, The state or condition of a father.
2. The hushand is prima facie presumed to be the father of his
wife's chhildren, born during coverture, or within a competent
time afterwards pater is est quem nuptim demonstrant. 7 N. S.
553. But this presumption may be rebutted by showing
circumstances which render it impossible that the hushand can be
the father. 6 Binn. 283; 1 Browne's R. Appx. xlvii.; Hardin's
R. 479; 8 East, R. 193; Stra. 51, 940. 4 T. R; 356;. 2 M. & K.
349; 3 Paige's R. 139; I Sim. & Stu. 150; Turn. & Russ. 138;
1 Bouv. Inst. n. 302, et seq.
3. The declarations of both or one of the spouses, however,
cannot affect the condition of a child born during the marriage.
7 N. S. 553; 3 Paige's R. 139. Vide Bastard;. Bastardy;,
Legitimacy; Maternity; Pregnancy.
PATHOLOGY, med. jur. The science or doctrine of diseases. In
cases of homicides, abortions, and the like, it is of great
consequence to the legal practitioner to be acquainted, in some
degree, with pathology. 2 Chit. Pr. 42, note.
PATRIA. The country; the men of the neighborhood competent to
serve on a jury; a jury. This word is nearly synonymous with
pais. (.q. v.)
PATRIA POTESTAS, Civil law. Paternal power; (q. v.) the
authority which is lawfully exercised by the father over his
children.
PATRICIDE. One guilty of killing his father.
PATRIMONIAL. A thing, which comes from the father, and by
extension, from the mother or other ancestor.
PATRIMONIUM, civil law. That which is capable, of being
inherited.
2. Things capable of being possessed by a single person
exclusively of all others, are, in the Roman or civil law, said
to be in patrimonio; when incapable of being so possessed they
are extra-patrimonium.
3. In general, things may be inherited, but there are some
which are said to be extra patrimonium, or which are not in
commerce. These are such as are common, as the light of heaven,
the air, the sea, and the like. Things public, as rivers,
harbors, roads, creeks, ports, arms of the sea, the, sea-shore,
highways, bridges, and the like. Things which belong to cities
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and municipal corporations, as public-squares, streets, market
houses, and the like. See, 1 Bouv. Inst. n. 421 to 446.
PATRIMONY. Patrimony is sometimes understood to mean all kinds
of property but its more limited signification , includes only
such estate, as has descended in the same family and in a still
more confined sense, it is only that which has descended or been
devised in a direct line from the father, and by extension, from
the mother, or other ancestor.
2 . By patrimony, patrimonium, is also understood the father's
duty to take care of his children. Sw. pt. 3, §18, n. 31, p. 235.
PATRINUS. A godfather.
PATRON, eccles. law. He who has the disposition and gift of an
ecclesiastical benefice. In the Roman law it signified the former
master of a freedman. Dig. 2, 4, 8, 1.
PATRONAGE. The right of appointing to office; as the patronage
of the president of the United States, if abused, may endanger
the liberties of the people.
2. In the ecclesiastical law, it signifies the right of
presentation to a church or ecclesiastical benefice. 2 Bl. Com.
21.
PATRONUS, Roman civil law. This word is a modification of the,
Latin word pater, father; a denomination applied by Romulus to
the first, senators of Rome, and which they always afterwards
bore. Romulus at first appointed a hundred of them. Seven years
afterwards, in consequence of the association of Tatius to the
Romans, a hundred more were appointed, chosen from the Sabines.
Tarquinius Priscus increased the number to three hundred. Those
appointed by Romulus and Tatius were called patres majorum
gentium and the others were called patres minorum gentium. These
and their descendants constituted, the nobility of Rome. The rest
of the people were called lebeians, every one of whom was obliged
to choose one of these fathers as his patron. The relation thus
constituted involved important consequences. The plebeian, who
was called (cliens) a client, was obliged to furnish the means of
maintenance to his chosen patron; to firnish a portion for his
patron's daughters; to ransom him and his sons, if captured by
an enemy, and pay all sums recovered against him by judgment, of
the 'courts. The patron, on the other hand, was, obliged to watch
over the interests of his client, whether present or absent to
protect his person and property, and especially to defend him in
all, actions brought against him for any cause. Neither could
accuse or bear testimony against the other, or give contrary
votes, &c. The contract was of a sacred nature,; the violation
of it was a sort of treason, and punishable as such. According to
Cicero, (De Repub. II. 9,) this relation formed an integral part
of the governmental system, Et habutit plebem in clientelas
principum descri ptum, which he affirms was eminently useful.
Blackstone traces the system of vassalage to this. ancient
relation of patron and client. It was, in fact, of the same
nature as the feudal institutions of the middle ages, designed to
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maintain order in a rising state by a combination of the opposing
interests of the aristocracy and of the common people, upon the
principle of reciprocal bonds for mutual interests, Dumazeau,
Barreau Romain, §III. Ultimately, by force of radical changes in
the institution, the word patronus came to signify notbing more
than an advocate. Id. IV
PATRUELIS, civil law. A cousin german by the father's side;
the son or daughter of a father's brother. Dig. 38i 10, 1.
PATRUUS, citq law. An uncle by the father's side, a father's
brother. Dig. 38, 10, 10, Patruus magnus, is a grandfather's
brother, grand uncle. Patruus major, is a great-grandfather's
brother. Patruus maximus, is a, great-grandfather's father's
brother.
PAUPER. One so poor that he must be supported at the public
expense.
2. The statutes of the several states make ample provisions for
the support of the poor. It is not within the plan of this work
even to give an abstract of such extensive legislation. Vide 16
Vin. Ab. 259;Botts on thc Poor Laws; Woodf. Landl. & Ten. 901.
PAVIAGE. Contribution or tax. for paving the streets or
highways.
PAWN. A pledge. Vide Pledge.
PAWN-BROKER. One who is lawfully authorized to lend money, and
actually lends it, usually in small sums, upon pawn or pledge.
PAWNEE. He who receives a pawn or pledge.
2. The rights of the pawnee are to have the exclusive
possession of the pawn; to use it, when it is for the advantage
of the pawner, but, in such case, when he makes a profit out of
it, he must account for the same. 1 Car. Law Rep. 8 7; 2 Murph.
3. The pawnee is bound to take reasonable care, of the pledge,
and to return it to the, pawnor, when the obligation of the
latter has been performed.
4. The pawnee has two remedies to enforce his claim; the
first, to sell the pawn, after having given due notice; and,
secondly, by action. See. 1 Bouv. Inst. n. 1046, 1050.
PAWNOR. One who, being liable to an engagement, gives to the
person to whom he is liable, a thing to be held as a security for
the payment of his debt or the fulfilment of his liability.
2. The rights of the pawnor are to redeem the pledge, at any
time before it is sold.
3. His oblioations are to warrant the title of the pledge, and
to redeem it at the time agreed upon. See 1 Bouv. lnst. n. 1045.
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PAYEE. The person in whose favor a bill of exchange is made
payable. Vide Bills of Exchange.
PAYMENT, contracts. That which is given to execute what has
been promised; or it is the fulfilment of a promise. Solvere
dicimus cum quis fecit, quod facere promisit. But though this is
the general acceptation of the word, yet by payment is
understood, every way by which the creditor is satisfied or ought
to be, and the debtor, liberated for example, an accord and
satisfaction will operate as a payment. If I owe you a sum of
money, for the security of which I give you a mortgage, and
afterwards you consent to receive in payment a tract of land,
from the moment the sale is complete, the first obligation, with
all its accessories, is extinct, although you should be
afterwards evicted of the property sold. 7 Toull. n. 46 2 Mart.
Lo. Rep. N. S. 144; S. C. 2 Harr. Cond. Lo. R. 621, 624.
2. This subject will be considered by taking a separate view of
the person by whom the payment may be made; to whom it may be
made; when and where it ought to be made; how it ought to be
made; the effect of the payment.
3. - 1. The payment may be made by the real debtor and other
persons from whom the creditor has a right to demand it; an
agent may make payment for his principal; and any mode of
payment by the agent, accepted and received as such by the
creditor, as an absolate payment will have the effect to
discharge the principal, whether known or unknown, and whether it
be in the usual course of business or not. If, for example, a
factor or other agent should be employed to purchase goods for
his principal, or should be entrusted, with money to be paid for
him, and, instead of receiving the money, the creditor or seller
should take the note of the factor or agent; payable at a future
day, as an absolute payment, the principal would be discharged
from the debt. 3 Chit. Com. Law, 204; 1 B. & Ald. 14; 6 B. & C.
160; 7 B. & C. 17. When such note has been, received
conditionally and not as an absolute payment, it would not have
the effect of a payment by the principal; and whether so
received or not is a fact to be decided by the jury. 1 Cowen, R,
259, 383; 9 John. R:, 310; 6 Cowen, R. 181; 7 John. R. 311;
15 John. R. 276; 3 Wend. R. 83; 6 Wend. R. 475; 10 Wcnd. R.
271; 5 John., R. 68; 1 Liverm. Ag. 207.
4. Payment may also be made by a third person a stranger to the
contract.
5. In the payment of mortgages, it is a 20rule, that the
personal estate shall be applied to discharge them when made by
the testator or intestate himself, to secure the payment of a
debt due by bim, because the personal estate was benefited by the
money borrowed; and it makes no difference whether the mortgaged
lands have been devised, or come to the heir by descent. 2
Cruise, 1 Dig. 147. The testator may, however, exempt the
personal estate from the payment, and substitute the real in its
place. But when the mortgage was not given by the deceased, but
be acquired the real estate subject to it, it never was his debt,
and therefore his personal estate is not bound to pay the
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mortgage debt, but it must be paid by the real estate. 2 Cruise,
Dig. 164-8; 3 John. Chan. R. 252; 2 P. Wms. 664, n. 1; 2 Bro.
C. C. 57; 2 Bro. C. C. 101, 152; 5 Ves. jr. R. 534; 14 Ves.
417.
6. - 2. It must be made by the creditor himself, or his
assigns, if known, or some person authorized by him, either
expressly or by implication; as to his factor; Cowp. 251: to
his broker, 1 Maul. & Selw. 576; 4 Id. 566; 4 Taunt. 242; 1
Stark. Ca. 238.
7. In the case of partners and other joint creditors, or joint
execuutors or administrators, payment to one is generally a valid
payment. When an infant is a creditor, payment must be made to
his guardian. A payment may be good when made to a person who had
no authority to receive it, if the creditor shall afterwards
ratify it. Poth. Obl. n. 528.
8. - 3. Time and place of payment: first, as to the time. When
the contract is, that payment shall be made at a future time, it
is clear that nothing can be demanded until after it has elapsed,
or until any other condition to which the payment is subject, has
been fulfilled; and in a case where the goods had been sold at
six or nine months, the debtor had the option as to those two
terms. 5 Taunt, 338. When no time of payment is mentioned in the
agreement, the money is payable immediately. 1 Pet. 455; 4 Rand.
346.
9. Secondly, the payment must be made at the place agreed upon
in the contract; but in the absence of such agreement, it must
be made agreeably to the presumed intention of the parties,
which, among other things, may be ascertained by the nature of
the thing to be paid or delivered, or by the custom in such
cases.
10. - 4. How the payment ought to be made. To make a valid
payment, so as to compel the receiver to take it, the whole
amount due must be paid; Poth. Obl. n. 499, or n. 534, French
edition; when a part is accepted, it is a payment pro tanto. The
payment must be made in the thing agreed upon; but when it ought
to be made in money, it must be made in the lawful coin of the
country, or in bank notes which are of the value they are
represented to be. A payment made in bills of an insolvent bank,
though both parties may be ignorant of its insolvency, it has
been held, did not discharge the debt; 11 Verm. 676; 6 Hill,
340; but see 1 W. & S. 92; 8 Yerg. 175; and a payment in
counterfeit bank notes is a nullity. 2 Hawks, 326; 3 Hawks, 568,
6 Hill, 840. Iii general, the payment of a part of a debt, after
it becomes due, will not discharge the whole, although there may
be an agreement by the debtor that it should have that effect,
because there is no consideration for such agreement. But see 3
Kelly's R. 210, contra. A payment of a part, before it is due,
will discharge the whole, when so agreed.
11. - 5. The payment, when properly made, discharges the debtor
from his obligation. Sometimes a payment extinguishes several
obligations; this happens when the thing given to discharge an
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obligation was the same which is the object of another
obligation. Poth. Obl. 552.
12. A single payment may discharge several debts; as, for
example if Peter be indebted to Paul one thousand dollars, and
Paul being indebted to James, Paul give an order to Peter to pay
Tames this money; the payment made by Peter to James discharges
both the obligations due by Peter to Paul, and by Paul to James.
Poth. Ob. n. 553. This rule, that a payment made in order to
acquit or discharge an obligation, extinguishes the other
obligations which have the same object, takes place also when
there are several debtors as regards the whole of them. If, for
example, Peter trust Paul on the credit of James, a payment by
Paul discharges both himself and James. Poth. Obl. n. 554.
13. But in case money or other things have been delivered to a
person who was supposed to be entitles to them as a creditor,
when he was not, this is not a payment, and the whole, if nothing
was due, or if the debt was less than the amount paid, the
surplus, may be recovered in action for money bad and received.
Vide, generally, Bouv. Inst. Index, h. t.; Com. Di g. 473; 8
Com. Dig. 607; 16 Vin 6; 1 Vern. by Raith. 3, 150 n. Yelv. 11
a; 1 Salk. 22; 15 East, 12; 8 East, R. 111; 2 Ves. jr. 11;
Phil. Ev. Index, b, t,; Stark. Ev. h. t.; Louis. Code, art.
2129; Ayl. Pand. 565; 1 Sell. Pr. 277; Dane's Ab. Index, h.
t.; Toull. lib. 3, tit. 3, c. 5; Pardes. part 2, tit. 2, c. 1
Merl. Repert. h. t.; Chit. Contr. Index, h. t.; 3 Eng. C. L.
Rep. 130. As to what transfer will amount to an assignment or a
payment and extinguishment of a claim, see 6 John. Ch. R. 395;
Id. 425; 2 Ves. jr. 261 18 Ves. jr. 384; 1 N. H. Rep. 167; 1
N. H. Rep. 252; 2 N. H. Rep. 300; 3 John. Ch. R. 53.
PAYMENT, pleadings. The name of a plea by which the defendant
alleges that he has paid the debt claimed in the declaration;
this plea must conclude to the country. 4 Call, 371; Minor, 137.
Vide Solvit ad them; Solvit post diem.
PAYS. The country. Trial per pays, is a trial by the country;
that is, by jury. Vide Pais.
PAX REGIS, Eng. law. The king's peace. In ancient times there
were certain limits which were known by this name. The pax regis,
or the verge of the court, as it was afterwards called, extended
from the palace gate to the distance of three miles, three
furlongs, three acres, nine feet, nine palms and nine
barleycorns. Crabb's C. L. 41.
PEACE. The tranquillity enjoyed by a political society,
internally, by the good order which reigns among its members, and
externally, by the good understanding it has with all other
nations. Applied to the internal regulations of a nation, peace
imports, in a technical sense, not merely a state of repose and
security, as opposed to one of violence and warfare, but likewise
a state of public order and decorum. Ham. N. P. 139; 12 Mod.
566. Vide, generally, Bac. Ab. Prerogative, D 4; Hale, Hist. P.
C. 160; 3 Taunt. R. 14; 1 B. & A. 227; Peake, R. 89; 1 Esp.
R. 294; Harr. Dig. Officer, V 4; 2 Benth. Ev. 319, note. Vide
Good behaviour; Surety of the peace.
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PECK. A measure of capacity, equal to two gallons. Vide
Measure.
PECULATION, civil law. The unlawful appropriation by a
depositary of public funds, of the property of the government
entrusted to his care, to his own use or that of others. Domat,
Suppl. au Droit Public, liv. 3, tit. 5.
PECULIAR, eccles. law. In England, a particular parish or
church, which has, within itself, independent of the ordinary
jurisdiction, power to grant probate of wills, and the like. 1
Eng. Eccl. R. 72, note; Shelf. on Mar. & Div. 538. Vide Court of
peculiars.
PECULIUM, civil law. The savings which were made by a son or
slave with the consent of his father or master. Inst. 2, 9, 1;
Dig. 15, 1, 5, 3; Poth. ad Pand. lib. 50 , tit. 17, c. 2, art.
3.
2. A master is not entitled to the extraordinary earnings of
his apprentice, which do not interfere with his services so as to
affect his master's profits. An apprentice was therefore decreed
to be entitled to salvage in opposition to his master's claim for
it. 2 Cranch, 270.
PECUNIA, civil law, property By the term was understood, 1.
Money. 2. Every thing which constituted the private property of
an individual, or which was a part of his fortune; a slave' a
field, a house, and the like, were so considered.
2. It is in this sense the law of the Twelve Tables said; Uti
quisque pater familias legassit super pecunia tutelare rei suae,
ita jus esto. In whatever manner a father of a family may have
disposed of his property, or of the tutorship of his things, let
this disposition be law. 1 Lecons Elem. du Dr. Civ. Rom. 288.
3. Flocks were the first riches of the ancients, and it is from
pecus that the words pecania, peculium, peculatus, are derived.
Co. Litt. 207.
PECUNIARY. That which relates to money.
2. Pecuniary punishment, is one which imposes a fine on a
convict; a pecuniary legacy is one which entitles the legatee to
receive a sum of money, and not a specific chattel. In the
ecclesiastical law, by pecuniary causes is understood such causes
as arise either from the withholding ecclesiastical dues, or the
doing or omitting such acts relating to the church, in
consequence of which damage accrues to the plaintiff. In England
these causes are cognizable in the ecclesiastical courts.
PEDIGREE, descents. A succession of degrees from the origin;
it is the state of the family as far as regards the relationship
of the different members, their births, marriages and deaths;
this term is applied to persons or families, who trace their
origin or descent.
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2. On account of the difficulty of proving in the ordinary
manner by living witnesses, facts which occurred in remote times,
hearsay evidence (q. v.) has been admitted to prove a pedigree. 1
Phil. Ev. 186; 1 Stark. Ev. 55; 10 Serg. & Rawle, 383; 2 Supp.
to Ves. jr. 110; 8 Com. Dig. 583 1 Pet. 337; 6 Pet., 81; 13
Pet. 209 1 Wheat. 6; 3 Wash. C. C. R. 243; 4 Wash.C.C.R.186;
3Bouv.Inst.n. 3067. Vide Descent; Line.
PEDIS POSSESSIO. A foothold, an actual possession. To
constitute adverse possession there must be pedis possessio, or a
substantial enclosure. 2 Bouv. Inst. n. 2193; 2 N. & M. 343.
PEDLARS. Persons who travel about the country with merchandise,
for the purpose of selling it. They are obliged under the laws of
perhaps all the states to take out licenses, and to conform to
the regulations which those laws establish.
PEER. Equal. A man's peers are his equals. A man is to be tried
by his peers.
2. In England and some other countries, this is a title of
nobility; as, peers of the realm. In the United States, this
equality is not so much political as civil. A man who is not a
citizen, is nevertheless to be tried by citizens.
PEERESS. A noblewoman, the wife of a peer.
PEINE FORTE ET DURE, Eng. law A punishment formerly inflicted
in England, on a person who, being arraigned of felony, refused
to plead and put himself on his trial, and stubbornly stood mute.
He was to be laid down and as much weight was to be put upon him
as he could bear, and more, until he died. This barbarous
punishment has been abolished. Vide Mute.
PELTWOOL. The wool pulled off the skin or pelt of a dead ram.
PENAL. That which may be punished; that which inflicts a
punishment.
PENAL STATUTES. Those which inflict a penalty for the violation
of some of their provisions.
2. It is a rule of law that such statutes must be construed
strictly. 1 Bl. Com. 88; Esp. on Pen. Actions, 1; Bosc. on
Conv.; Cro. Jac. 415; 1 Com. Dig. 444; 5 Com. Dig. 360; 1
Kent, Com. 467. They cannot, therefore, be extended by their
spirit or equity to other offences than those clearly described
and provided for. Paine, R. 32; 6 Cranch, 171.
PENALTY, contr. A clause in an agreement, by which the obligor
agrees to pay a certain-sum of money, if he shall fail to fulfil
the contract contained in another clause of the same agreement.
2. A penal clause in an agreement supposes two obligations, one
of which is the primitive or principal; and the other, is,
conditional or accessory.
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3. The penal obligation differs from an alternative obligation,
for this is but one in its essence; while a penalty always
includes two distinct engagements, and, when the first is
fulfilled, the second is void. When a breach has taken place, the
obligee has his option to require the fulfilment of the first
obligation, or' the payment of the penalty, in those cases which
cannot be relieved in equity, when the penalty is considered as
liquidated damages. Dalloz, Dict. mots Obligation avec clause
penale.
4. It is difficult, in many cases, to distinguish between a
penalty and liquidated damages. In general, the courts have
inclined to consider the sum reserved by such agreement to be a
penalty, rather than as stipulated damages. (q. v.)
5. The sum will be considered as a penalty, and not as
liquidated damages, in the following cases: 1. When the parties
to the agreement have expressly declared the sum to be a penalty,
and no other intent is to be collected from the instrument. 2
Bos. & P. 346; 1 H. Bl. 227; 1 Pick. 45 1; 4 Pick. 179; 7
Wheat. 14; 3 John. Cases, 297. 2. When from the form of the
instrument, as in the case of a money bond, it is sufficiently
clear a penalty was intended.
3. When it is doubtful whether the sum was intended as a
penalty or not, and a certain damage or debt is made payable on
the face of the instrument. 2 B. & P. 350; 3 C. & P. 240. 4.
When the agreement was evidently made for the attainment of
another object, to which the sum, specified is wholly collateral,
11 Mass. 76; 15 Mass. 488; 1 Bro. C. C. 418, 419. 5. When the
agreement contains several matters, of different degrees of
importance, and yet the sum mentioned is payable for the breach
of any, even the least. 6 Bing. 141; 5 Bing. N. C. 390; 7
Scott, 364. 6. When the contract is not under seal, and the
damages may be ascertained and estimated; and this though the
parties have expressly declared the sum to be as liquidated
damages. 2B. & Ald. 704; 6 B. & C. 216; 4 Dall. 150; 5 Cowen,
144. See 2 Greenl. Ev. 258. 1 Holt N. P. C. 43 1 Bing. R. 302;
S. C. 8 Moore, 244; 4 Burr. 2229.
6. The penalty remains unaffected, although the condition may
have been partially performed; as in a case where the penalty
was one thousand dollars, and the condition was to pay an annuity
of one hundred dollars, which had been paid for ten years; the
penalty was still valid. 5 Verm. 365.
7. A distinction seems to be made in courts of equity between
penalties and forfeitures. In cases of forfeiture for the breach
of any covenant other than a covenant to pay rent, relief will
not be granted in equity, unless upon the ground of accident,
fraud, mistake, or surprise, when the breach is capable of
compensation. Edin. on Inj. 22; 16 Ves. 403; S. C. 18 Ves. 58 3
Ves. 692; 4 Bouv. List. n. 3915.
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8. By penalty is understood, also, the punishment inflicted by
law for its violation; the term is mostly applied to a pecuniarypunishment. See 6 Pet. 404; 10 Wheat. 246; 1 Gall. R. 26; 2
Gall. R. 515; 1 Mason, R. 243; 3 John. Cas. 297: R. 451; 15
Mass. 488; 7 John. 72 4 Mass. 433; 8 Mass. 223; 8 Com. Dig.
846; 16 Vin. Ab. 301; 1 Vern. 83, n.; 1 Saund. 58, n.; 1
Swans. 318; 1 Wash. C. C. R. 1; 2 Wash. C. C. R. 323; Paine,
C. C. R. 661; 7 Wheat. 13. See, generally, Bouv. Inst. Index, h.
t.
PENANCE, eccl. law. An ecclesiastical punishment, inflicted by
an ecclesiastical court, for some spiritual offence. Ayl. Par.
420.
PENCIL. An instrument made of plumbago, black lead, red chalk,
or other suitable substance, for writing without ink.
2. It has been holden that a will written with a pencil, could
riot, on this account, be annulled. 1 Phillim. R. 1; 2 Phillim.
173.
PENDENTE LITE. Pending the continuance of an action, while
litigation continues.
2. An administrator is appointed, pendente lite, when a will is
contested. 2 Bouv. Inst. n. 1557. Vide ddministrator.
PENDENTES, civil law. The fruits of the earth not yet separated
from the ground; the fruits hanging by the roots. Ersk. Inst. B.
2, Lit. 2, s. 4.
PENETRATION, crimes. The act of inserting the penis into the
female organs of generation. 9 Car. & Pa 118; S. C. 38 E. C. L.
R. 63. See 8 Car. & Payne, 614; 34 E. C. L. R. 562; 5 C. & P.
321; S. C. 24 E, C. L. R. 339; 9 C. & P. 31 Id. 752; 38 E. C.
L. R. 320. But in order to commit the crime of rape, it is
requisite that the penetration should be such as to rupture the
hymen. 5 C. & P. 321.
2. This has been denied to be sufficient to constitute a rape
without emission. (q. v.) Bee, on this subject, 12 Co. 37; Hawk.
bk 1, c. 41, s. 3; 1 Hale, P. C. 628; 1 East, P. C. 437, 8;
Russ & Ry. C. C. 519; 6 C. & P. 351; 5 C. & P. 297, 321; S. C.
24 E. C. L. R. 339; 1 Chit. Med. Jur. 386 to 395; 1 Virg. Cas.
307; 4 Mood. Cr. Cas. 142, 337; 4 Car. & P. 249; 1 Par. &
Fonbl. 433; 2 Mood. & M. C. N. P. 122; 1 Russ. C. & M 560; 1
East, P. C. 437.
PENITENTIARY. A prison for the punishment of convicts.
2. There are two systems of penitentiaries in the United
States, each of which is claimed to be the best by its partizans:
the Pennsylvauia system and the New York system. By the former,
convicts are lodged in separate, well lighted, and well
ventilated cells, where they are required to work, during stated
hours. During the whole time of their confinement, they are never
permitted to see or speak with each other. Their usual
employments are shoemaking, weaving, winding yarn, picking wool,
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and such like business. The only punishments to which convicts
are subject, are the privation of food for short periods, and
confinement without labor in dark, but well aired cells; this
discipline has been found sufficient to keep perfect order; the
whip ana all other corporal punishments are prohibited. The
advantages of the plan are numerous. Men cannot long remain in
solitude without labor convicts, when deprived of it, ask it as a
favor, and in order to retain it, use, generally, their best
exertions to do their work well; being entirely secluded, they
are of course unknown to their fellow prisoners, and can form no
combination to escape while in prison, or associations to prey
upon society when they are out; being treated with kindness, and
afforded books for their instruction and amusement, they become
satisfied that society does not make war upon them, and, more
disposed to return to it, which they are not prevented from doing
by the exposure of their fellow prisoners, when in a strange
place; the labor of the convicts tends greatly to defray the
expenses of the prison. The disadvantages which were anticipated
have been found, to be groundless.; Among these were, that the
prisoners would be unhealthy; experience has proved the
contrary; that they would become insane, this has also been
found to be otherwise; that solitude is incompatible with the
performance of business; that obedience to the discipline of the
prison could not be enforced. These and all other objections to
this system are, by its friends, believed to be without force.
3. The New York system, adopted at Auburn, which was probably
copied from the penitentiary at Ghent, in the Netherlands, called
La Maison de Force, is founded on the system of isolation and
separation, as well as that of Pennsylvania, but with this
difference, that in the former the prisoners are confined to
their separate cells during the night only; during the working
hours in the day time they labor together in work shops
appropriated to their use. They cat their meals together, but in
such a manner as not to be able to speak with each other. Silence
is also imposed upon them at their labor. They perform the labor
of carpenters, blacksmiths, weavers, shoemakers, tailors,
coopers, gardeners, wood sawyers, &c. The discipline of the
prison is enforced by stripes, inflicted by the assistant
keepers, on the backs of the prisoners, though this punishment is
rarely exercised. The advantages of this plan are, that the
convicts are in solitary confinement during the night; that
their labor, by being joint, is more productive; that, inasmuch
as a clergyman is employed to preach to the prisoners, the system
affords an, opportunity for mental and moral improvements. Among
the objections made to it are, that the prisoners have
opportunities of communicating with each other, and of forming
plans of escape, and when they are out of prison, of associating
together in consequence of their previous acquaintance, to the
detriment of those who wish to return to virtue, and to the
danger of the public; that the discipline is degrading, and that
it engenders bitter resentment in the mind of the convict. Vide,
generally, on the subject of penitentiaries, Report of the
Commissioners (Messrs. King, Shaler, and Wharton,) on the Penal
Code of Pennsylvania; De Beaumont and De Toqueville, on the
Penitentiary System of the United States; Mease on the
Penitentiary System of Pennsylvania; Carey on ditto; Reports of
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the Boston Prison Discipline Society; Livingston's excellent
Introductory Report to the Code of Reform and Prison Discipline,
prepared for the state of Louisiana; Encycl. Americ. art. Prison
Discipline; De. I'Etat Actuel des Prisons en France, par L. M.
More au Christophe; Dalloz, Dict. mot Peine, §1, n. 3, and
Supplem. mots Prisons et Bagnes.
PENNSYLVANIA. The name of one of the original states of the
United States of America. Pennsylvania was occupied by planters
of various nations, Dutch Swedes, English, and others; but
obtained no separate name until the year 1681, when Charles II.
granted a charter to William Penn, by which he became its
proprietary, saving, however, allegiance to the crown, which
retained the sovereignty of the country. This charter authorized
the proprietary, his heirs and successors, by and with the assent
of the freemen of the country, or their deputies assembled for
the purpose, to make laws. Their laws were required to be
consonant to reason, and not repugnant or contrary, but as near
as conveniently could be to the laws and statutes of England.
Pennsylvania was governed by this charter till the period of the
Revolution.
2. The constitution of the state was adopted on the second day
of September, 1790, and amended by a convention selected by the
people, on the twenty-second day of February, 1838. The powers of
the government are divided into three distinct branches: the
legislative, the executive and the judiciary.
3. - 1st. The legislative power is vested in a general
assembly, which consists of a senate and house of
representatives.
4. - 1. The senate will be considered with reference to the
qualification of the electors; the qualification of the members;
the length of time for which they are elected; and the time of
their election. 1. In elections by the citizens, every white
freeman of the age of twenty-one years having resided in this
state one year, and in the election district where he offers to
vote ten days immediately preceding such election, and within two
years paid a state or county tax, which shall have been assessed
at least ten days before the election, shall enjoy the rights of
an elector. But a citizen of the United States who had previously
been a qualified voter of this state and removed therefrom and
returned, and who shall have resided in the election district and
paid taxes as aforesaid, shall be entitled to vote after residing
in the state six months: Provided, that white freemen, citizens
of the United States, between the ages of twenty-one and
twenty-two years, and having resided in the state one year, and
in the election district ten days as aforesaid, shall be
en-titled to vote although they shall not have paid taxes. Art.
3, s. 1. 2. No person shall be a senator who shall not have
attained the age of twenty-five years, and have been a citizen
and inhabitant of the state four years next before his election,
and the last year thereof an inhabitant of the district for which
he shall be chosen, unless he shall have been absent on the
public business of the United States or of this state; and no
person elected as aforesaid, shall hold the said office after he
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shall have removed from such district. Art. 1, s. 8. 3. The
number of senators shall never be less than one-fourth, nor
greater than one-third of the number of representatives. Art. 1,
s. 6. 4. The senators hold their office for three years.
5. Their election takes place on the second Tuesday of October,
one-third of the senate each year.
6. - 2. The house of representatives will be treated of in the
same manner which has been observed in considering the senate. 1.
The electors are qualified in the same manner as the electors of
the senate. 2. No person shall be a representative who shall Dot
have attained the age of twenty-one years, and have been a
citizen and inhabitant of the state three years next preceding
his election, and the last year thereof an inhabitant of the
district in and for which he shall be chosen a representative,
unless be shall have been absent on the public business of the
United States or of this state. Art. 1, s. 3. 3. The number of
representatives shall never be less than sixty, nor greater than
one hundred. Art. 1, s. 4. 4. They are elected yearly. 5. Their
election is on the second Tuesday of October, yearly.
6. - 2d. The supreme executive power of this commonwealth is
vested in a governor. 1. He is elected by the electors of the
legislature. 2. He must be at least thirty years of age, and have
been a citizen and an inhabitant of the state seven years next
before his election, unless he shall have been absent on the
public business of the United States or of this state. Art. 2, s.
4. 3. The governor shall hold his office during three years from
the third Tuesday of January next ensuing his election, and shall
not be capable of holding it longer than six in any term of nine
years. Art. 2, s. 3. 4. His principal duties are enumerated in
the second article of the constitution, as follows: The governor
shall at stated times receive for his services a compensation
which shall be neither increased or diminished during the period
for which he shall have been elected. He shall be
commander-in-chief of the army and navy of this commonwealth, and
of the militia, except when they shall be called into the actual
service of the United States. He shall appoint a secretary of the
commonwealth during pleasure; and he shall nominate, and by and
with the advice and consent of the senate appoint, all judicial
officers of courts of record, unless otherwise provided for in
this constitution. He shall have power to fill all vacancies that
may happen in such judicial offices during the recess of the
senate, by granting commissions which shall expire at the end of
their next session: Provided, that in acting on executive
nominations the senate shall sit with open doors, and in
confirming or rejecting the nominations of the governor, the vote
shall be taken by yeas and nays. He shall have power to remit
fines and forfeitures, and grant reprieves and pardons, except in
cases of impeachment. He may require information in writing from
the officers in the executive departiment, upon any subject
relating to the duties of their respective offices. He shall,
from time to time, give to the general assembly information of
the state of the commonwealth, and recommend to their
consideration such measures as he shall judge expedient. He may,
on extraordinary occasions, convene the general assembly; and,
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in case of disagreement between the two houses with respect to
the time of adjournment, adjourn them to such time as he shall
think proper, not exceeding four months. He shall take care that
the laws be faithfully executed. In case of the death or
resignation of the governor, or of his removal from office, the
speaker of the senate shall exercise the office of governor until
another governor shall be duly qualified; but in such case
another governor shall be chosen at the next annual election of
representatives, unless such death, resignation or removal shall
occur within three calendar months, immediately preceding such
next annual election, in which case a governor shall be chosen at
the second succeeding annual election of representatives. And if
the trial of a contested election shall continue longer than
until the third Monday of January next ensuing the election of
governor, the governor of the last year, or the speaker of the
senate who may be in the exercise of the executive authority,
shall continue therein until the determination of such contested
election, and until a governor shall be duly qualified as
aforesaid.
7. - 3d. The judicial power of the commonwealth is vested by
the fifth article of the constitution as follows:
§1. The judicial power of this commonwealth shall be vested in
a supreme Court, in courts of oyer and terminer and general jail
delivery, in a court of common pleas, orphans' court, register's
court, and a court of quarter sessions of the peace, for each
county in justices of the peace, and in such other courts as the
legislature may from time to time establish.
8. - §2. By an amendment to this constitution, the judges of
the supreme court, of the several courts of common pleas, and of
such other courts of record as are or shall be established by
law, shall be elected by the qualified electors, as provided by
act of April 15, 1851. Pam. Laws, 648. The judges of the supreme
court shall hold their offices for the term of fifteen years if
they shall so long behave themselves well. The president judges
of the several courts of common pleas and of such other courts of
record as are or shall be established by law, and all other
judges required to be learned in the law, shall hold their
offices for the term of ten years if they shall so long behave
themselves well. The associate judges of the courts of common
pleas shall hold their offices for the term of five years if they
shall so long behave themselves well. But for any reasonable
cause which shall not be sufficient ground of impeachment, the
governor may remove any of them on the address of two-thirds of
each branch of the legislature. The judges of the supreme court
and the presidents of the several courts of common pleas, shall
at stated times receive for their services an adequate
compensation to be fixed by law, which shall not be diminished
during their continuance in office, but they shall receive no
fees or perequisites of office, nor hold any other office of
profit under this commonwealth.
9. - §3. Until otherwise directed by law, the courts of common
pleas shall continue as at present established. Not more than
five counties shall at any time be included in one judicial
district organized for said courts.
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10. - §4. The jurisdiction of the supreme court shall extend
over the state; and the judges thereof shall, by virtue of their
offices be justices of oyer and terminer and general jail
delivery, in the several counties.
11. - §5. The judges of the court of common pleas, in each
county, shall, by virtue of their offices, be justices of oyer
and terminer and general jail delivery, for the trial of capital
and other offenders therein; any two of the said judges, the
president being one, shall be a quorum; but they shall not hold
a court of oyer and terminer, or jail delivery, in any county,
when the judges, of the supreme court, or any of them, shall be
sitting in the same county. The party accused, as well as the
commonwealth, may, under such regulations as shall be prescribed
by law, remove the indictment and proceedings, or a transcript
thereof, into the supreme court,
12. - §6. The supreme court, and the several courts of common
pleas, shall, besides the powers heretofore usually exercised by
them, have the power of a court of chancery, so far as relates to
the perpetuating If testimony, the obtaining of evidence from
places not within the state, and the care of the persons and
estates of those who are non compotes mentis. And the legislature
shall vest in the said courts such other powers to grant relief
in equity, as shall be found necessary; and may, from time to
time, enlarge or diminish those powers, or vest them in such
other courts as they shall judge proper for the due
administration of justice.
13, - §7. The judges of the court of common pleas of each
county, any two of whom shall be a quorum, shall compose the
court of quarter sessions of the peace, and orphans' court
thereof: and the register of wills, together with the said
judges, or, any two of them, shall compose the register's court
of each county.
14. - §8. The judges of the courts of common pleas shall,
within their respective counties, have the like powers with the
judges of the supreme court, to issue writs of certiorari to the
justices of the peace, and to cause their proceedings to be
brought before them, and the like right and justice to be done.
15. - §9. The president of the court in each circuit within
such circuit, and the judges of the court of common pleas within
their respective counties, shall be justices of the peace, so far
as relates to criminal matters.
16. - §10. A register's office, for the probate of wills and
granting letters of administration, and an office for the
recording of deeds, shall be kept in each county.
17. - §11. The style of all process shall be "The commonwealth
of Pennsylvania." All prosecutions shall be carried on in the
name and by the authority of the commonwealth of Pennsylvania,
and conclude, "against the peace and dignity of the same."
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PENNY. The name of an English coin of the value of one-twelfth
part of a shilling. While the United States were colonies, each
adopted a monetary system composed of pounds, shillings, and
pence. The penny varied in value in the different colonies.
PENNYWEIGHT. A troy weight which weighs twenty-four grains, or
one-twentieth part of an ounce. Vide Weights.
PENSION. A stated and certain allowance granted by the
government to an individual, or those who represent him, for
valuable services performed by him for the country. The
government of the United States has, by general laws, granted
pensions to revolutionary soldiers; vide 1 Story's Laws U. S.
68; 101, 224, 304, 363, 371, 451; 2 Id. 903, 915, 983, 1008,
1240; 3 Id. 1662, 1747, 1778, 1794, 1825, 1927; 4 Id. 2112,
2270, 2329, 2336, 2366; to naval officers and sailors; 1 Stor.
L. U. S. 474, 677, 769; 2 Id. 1284 3 Id. 1565; to the army
generally; 1 Id. 360, 412, 448; 2 Id. 833; 3 Id 1573 to the
militia generally; 1 Id. 255, 360, 412, 488 2 Id. 1382; 3 Id.
1873; in the Seminole war, 3 Id. 1706.
PENSIONER. One who is supported by an allowance at the will of
another. It is more usually applied to him who receives an
annuity or pension from the government.
PEONIA, Spanish law. A portion of land which was formerly given
to a simple soldier, on the conquest of a country. It is now a
quantity of land, of different size in different provinces. In
the Spanish possessions in America, it measured fifty feet front
and one hundred feet deep. 2 White's Coll. 49; 12 Pet. 444,
notes.
PEOPLE. A state; as, the people of the state of New York; a
nation in iis collective and political capacity. 4 T. R. 783. See
6 Pet. S. C. Rep. 467.
2. The word people occurs in a policy of insurance. The insurer
insures against "detainments of all kings, princes and people."
He is not by this understood to insure against any promiscuous or
lawless rabble which may be guilty of attacking or detaining a
ship. 2 Marsh. Ins. 508. - Vide Body litic; Nation.
PER. By. When a writ of entry is sued out against the alienee,
or descendant of the original disseisor, it is then said to be
brought in the per, because the writ states that the tenant had
not the entry but by the original wrong doer. 3 Bl. Com. 181. See
Entry, writ of.
PER CAPITA, by the head or polls. This term is applied when an
estate is to be divided share and share alike. For example, if a
legacy be given to the issue of A B, and A B at the time of his
death, shall have two children and two grandchildren, his estate
shall be divided into four parts, and the children and
grandchildren shall each have one of them. 3 Ves. 257; 13 Ves.
344. Vide 1 Rop. on Leg. 126, 130.
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PER AND CUI. When a writ of entry is brought against a second
alienee or descendant from the disseisor, it is said to be in the
per and cui, because the form of the writ is that the tenant had
not entry but by and under a prior alienee, to whom the intruder
himself demised it. 2 Bl. Com. 181. See Entry, writ of.
PER FRAUDEM. A replication to a plea where something has been
pleaded which would be a discharge, if it had been honestly
pleaded, that such a thing has been obtained by fraud for
example, where on debt on a statute, the defendant pleads a prior
action depending, if such action has been commenced by fraud the
plaintiff may reply per fraudem: 2 Chit. Pl. *675.
PER INFORTUNIUM, criminal law. Homicide per infortunium, or by
misadventure, is said to take place when a man in doing a lawful
act, without any intent to hurt, unfortunately kills another.
Hawk. bk. 1, c. 11; Foster, 258, 259; 3 Inst. 56.
PER MINAS. By threats. When a man is compelled to enter into a
contract by threats or menaces, either for. fear of loss of life,
or mayhem, he may avoid it afterwards. 1 Bl. Com. 131; Bac. Ab.
Duress; Id. Murder A. See Duress.
PER MY ET PER TOUT. By every part or parcel and by the whole. A
joint tenant of lands is said to be seised per my et per tout.
Litt. s. 288. See 7 Mann. & Gr. 172, note c.
PER QUOD, pleading. By which; whereby.
2. When the plaintiff sues for an injury to his relative
rights, as for beating his wife, his child,, or his servant, it
is usual to lay the injury with a per quod. In such case, after
complaining of the injury, say to the wife, the declaration
proceeds, "insomuch that the said E F, (the wife,) by means of
the premises, then and there became and was sick, sore, lame, and
disordered, and so remained and continued for a long space of
time, to wit, hitherto, whereby he, the said A B, (the
plaintiff,) lost", &c. 2 Chit. Pl. 422; 3 Bl. Com. 140. It seems
that the per quod is not traversable. 1 Saund. 298; 1 Ld. Raym.
410; 2 Keb. 607; 1 Saund. 23, note 5.
PER STIRPES. By stock; by roots.
2. When, for example, a man dies intestate, leaving children
and grandchildren, whose parents are deceased, the estate is to
be divided not per capita, that is, by each of the children and
grandchildren taking a share, but per stirpes, by each of the
children taking a share, and the grandchildren, the children of a
deceased child, taking a share to be afterwards divided among
themselves per capita.
PERAMBULATIONE FACIENDA, WRIT DE, Eng. law. The name of a writ
which is sued by consent of both parties, when they are in doubt
as to the bounds of their respective estates; it is directed to
the sheriff to make perambulation, and to set the bounds and
limits between them in certainty. F. N. B. 309.
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2. "The writ de perambulatione facienda is not known to have
been adopted in practice in the United States," says Professor
Greenleaf, Ev. §146 note, "but in several of the states, remedies
somewhat similar in principle have been provided by statutes."
PERCH, measure. The length of sixteen feet and a half: a pole
or rod of that length. Forty perches in length and four in
breadth make an acre of land.
PERDONATIO UTLAGARIAE, Eng. law. A pardon for a man who, for
contempt in not yielding obedience to the process of the king's
courts, is outlawed, and afterwards, of his own accord,
surrenders.
PEREGRINI, civil law. Under the denomination of peregrini were
comprehended all who did not enjoy any capacity of the law,
namely, slaves, alien enemies, and such foreigners as belonged to
nations with which the Romans bad not established relations. Sav.
Dr. Rom. §66.
PEREMPTORY. Absolute; positive. A final determination to act
without hope of renewing or altering. Joined to a substantive,
this word is frequently used in law; as peremptory action; F.
N. B. 35, 38, 104, 108; peremptory nonsuit; Id. 5, 11;
peremptory exception; Bract. lib. 4, c. 20; peremptory
undertaking; 3 Chit. Pract. 112, 793; peremptory challenge of
jurors, which is the right to challenge without assigning any
cause. Inst. 4, 13, 9 Code, 7, 50, 2; Id. 8, 36, 8; Dig. 5, 1,
70 et 73.
PEREMPTORY DEFENCE, equity, pleading. A defence which insists
that the plaintiff never had the right to institute the suit, or
that if he had, the original right is extinguished or determined.
4 Bouv. Inst. n. 4206.
PEREMPTORY PLEA, pleading. A plea which denies the plaintiff's
cause of action. 3 Bouv. Inst. n. 2891. Vide Plea.
PERFECT. Something complete.
2. This term is applied to obligations in order to distinguish
those which may be enforeed by law, which are called perfect,
from those which cannot be so enforced, which are said to be im
perfect. Vide Imperfect; Obligations.
PERFIDY The act of one who has engaged his faith to do a thing,
and does not do it, but does the contrary. Wolff, §390.
PERFORMANCE. The act of doing something; the thing done is
also called a performance; as, Paul is exonerated from the
obligation of his contract by its performance.
2. When it contract has been made by parol, which, under the
statute of frauds and perjuries, could not be enforced, because
it was not in writing, and the party seeking to avoid it, has
received the whole or a part performance of such agreement, he
cannot afterwards avoid it; 14 John. 15; S. C. 1 John. Ch. R.
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273; and such part performance will enable the other party to
prove it aliunde. 1 Pet. C. C. R. 380; 1 Rand. R. 165; 1
Blackf. R. 58; 2 Day, R. 255; 1 Desaus. R. 350; 5 Day, R. 67;
1 Binn. R. 218; 3 Paige, R. 545; 1 John. Ch. R. 131, 146. Vide
Specific performance.
PERIL. The accident by which a thing is lost Lee,. Dr. Rom.
911.
PERILS OF THE SEA, contracts. Bills of lading generally contain
an exception that the carrier shall not be liable for "perils of
the sea." What is the precise import of this phrase is not
perhaps very exactly settled. In a 'strict sense, the words
perils of the sea, denote the natural accidents peculiar to the
sea; but in more than one instance they have been held to extend
to events not attributable to natural causes. For instance, they
have been held to include a capture by pirates on the high sea
and a case of loss by collision by two ships, where no blame is
imputable to either, or at all events not to the injured ship.
Abbott on Sh. P. 3, C. 4 §1, 2, 3, 4, 5, 6; Park. Ins. c, 3;
Marsh. Ins. B. 1, c. 7, p. 214; 1 Bell's Comm. 579; 3 Kent's
Comm. 251 n. (a); 3 Esp. R. 67.
2. It has indeed been said, that by perils of the sea are
properly meant no other than inevitable perils or accidents upon
the sea, and, that by such perils or accidents common carriers
are, prima facie, excused, whether there be a bill of lading
containing the expression of "peril of the sea," or not. 1 Conn.
Rep. 487.
3. It seems that the phrase perils of the sea, on the western
waters of the United States, signifies and includes perils of the
river. 3 Stew. & Port. 176.
4. If the law be so, then the decisions upon the meaning of
these words become important in a practical view in all cases of
maritime or water carriage.
5. It seems that a loss occasioned by leakage, which is caused
by rats gnawing a hole in the bottom of the vessel, is not, in
the English law, deemed a loss by peril of the sea, or by
inevitable casualty. 1 Wils. R. 281; 4 Campb. R. 203. But if the
master had used all reasonable precautions to prevent such loss,
as by having a cat on board, it seems agreed, it would be a peril
of the sea, or inevitable accident. Abbott on Shipp. p. 3, c. 3,
§9; but see 3 Kent's Comm. 243, and note c. In conformity to
this rule, the destruction of goods at sea by rats has, in
Pennsylvania, been held a peril of the sea, where there has been
no default in the carrier. 1 Binn. 592. But see 6 Cowen, R. 266,
and 3 Kent's Com. 248, n. c. On the other hand, the destruction
of a ship's bottom by worms in the course of a voyage, has, both
in America and England, been deemed not to be a peril of the sea,
upon the ground, it would seem, that it is a loss by ordinary
wear and decay. Park. on Ins. c. 3; 1 Esp. R. 444; 2 Mass. R.
429 but see 2 Cain. R. 85. See generally, Act of God; Fortuitous
Event;. Marsh. Ins. eh. 7; and ch. 12, §1.; Hildy on Mar. Ins.
270.
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PERIPHRASIS. Circumlocution; the use of other words to express
the sense of one.
2. Some words are so technical in their meaning that in
charging offences in indictments they must be used or the
indictment will not be sustained; for example, an indictment for
treason must contain the word traitorously; (q. v.) an
indictment for burglary, burglariously; ( q. v.) and feloniously
(q. v.) must be introduced into every indictment for felony. 1
Chitty's Cr. Law, 242; 3 Inst. 15; Carth. 319; 2 Hale , P. C.
172; 184;, 4 Bl. Com. 307; Hawk B. 2, c. 25, s. 55; 1 East P.
C. 115; Bac. Ab. Indictment, G 1; Com. ]Dig. Indictment, G 6
Cro. C. C. 37.
TO PERISH. To come to an end; to cease to be; to die.
2. What has never existed cannot be said to have perished.
3. When two or more persons die by the same accident, as a
shipwreck, no presumption arises that one perished before the
other. Vide Death. Survivorship.
PERISHABLE GOODS, Goods which are lessened in value and become
worse by being kept. Vide Bona Peritura.
PERJURY, crim. law. This offence at common law is defined to be
a wilful false oath, by one who being lawfully required to depose
the truth in any judicial proceedings, swears absolutely in a
matter material to the point in question, whether he be believed
or not.
2. If we analyze this definition we will find, 1st. That the
oath must be wilful. 2d. That it must be false. 3d. That the
party was lawfully sworn. 4th. That the proceeding was judicial.
6th. That the assertion was absolute. 6th. That the falsehood was
material to the point in question.
3. - 1. The intention must be wilful. The oath must be taken
and the falsehood asserted with deliberation, and a consciousness
of the nature of the statement made; for if it has arisen in
consequence of inadvertency, surprise or mistake of the import of
the question, there was no corrupt motive; Hawk. B. 1, c. 69, s.
2; but one who swears wilfully and deliberately to a matter
which he rashly believes, which is false, and which he had no
probable cause for believing, is guilty of perjury. 6 Binn. R.
249. See 1 Baldw. 370; 1 Bailey, 50.
4. - 2. The oath must be false. The party must believe that
what he is swearing is fictitious; for, if intending to deceive,
he asserts that which may happen to be true, without any
knowledge of the fact, he is equally criminal, and the accidental
truth of his evidence will not excuse him. 3 Inst. 166 Hawk. B.
1, c. 69, s. 6.
5. - 3. The party must be lawfully sworn. The person by whom
the oath is administered must have competent authority to receive
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it; an oath, therefore, taken before a private person, or before
an officer having no jurisdiction, will not amount to perjury. 3
Inst. 166; 1 Johns. R. 498; 9 Cowen, R. 30; 3 M'Cord, R. 308;
4 M'Cord, It. 165; 2 Russ. on Cr. 520; 3 Carr. & Payne, 419;
S. C. 14 Eng. Com. Law Rep. 376; 2 Chitt. Cr. Law, 304; 4
Hawks, 182; 1 N. & M. 546; 3 M'Cord, 308; 2 Hayw. 56; 8 Pick.
453.
6. - 4. The proceedings must be judicial. Proceedings before
those who are in any way entrusted with the administration of
justice, in respect of any matter regularly before them, are
considered as judicial for this purpose. 2 Chitt. Crim. C. 303;
2 Russ. on Cr. 518; Hawk. B. 1, c. 69, s. 3. Vide 3 Yeates, R.
414; 9 Pet. Rep. 238. Perjury cannot therefore be committed in a
case of which the court had no jurisdiction. 4 Hawks, 182; 2
Hayw. 56; 3 M'Cord, 308; 8 Pick. 453: 1 N. & McC. 546.
7. - 5. The assertion must be absolute. If a man, however,
swears that he believes that to be true which he knows to be
false, it will be perjury. 2 Russ. on Cr. 518; 3 Wils. 427; 2
Bl. Rep. 881; 1 Leach, 242; 6 Binn. Rep. 249; Lofft's Gilb.
Ev. 662.
8. - 6. The oath must be material to the question depending.
Where the facts sworn to are wholly foreign from the purpose and
altogether immaterial to the matter in question, the oath does
not amount to a legal perjury. 2 Russel on Cr. 521; 3 Inst. 167;
8 Ves. jun. 35; 2 Rolle, 41, 42, 369; 1 Hawk. B. 1, c. 69, s.
8; Bac. Ab. Perjury, A; 2 N. & M. 118; 2 Mis. R. 158. Nor can
perjury be assigned upon the valuation under oath, of a jewel or
other thing, the value of which consists in estimation. Sid. 146;
1 Keble, 510.
9. It is not within the plan of this work to cite all the
statutes passed by the general government, or the several states
on the subject of perjury. It is proper, however, here to
transcribe a part of the 13th section of the act of congress of
March 3, 1825, which provides as follows: "If any person in any
case, matter, bearing, or other proceeding, when an oath or
affirmation shall be required to be taken or administered under
or by any law or laws of the United States, shall, upon the
taking of such oath or affirmation, knowingly and willingly swear
or affirm falsely, every person, so offending, shall be deemed
guilty of perjury, and shall, on conviction thereof, be punished
by fine, not exceeding two thousand dollars, and by imprisonment
and confinement to bard labor, not exceeding five years,
according to the aggravation of the offence. And if any person or
persons shall knowingly or willingly procure any such perjury to
be committed, every person so offending shall be deemed guilty of
subornation of perjury, and shall on conviction thereof, be
punished. by fine, not exceeding two thousand dollars, and by
imprisonment and confinement to bard labor, not exceeding five
years, according to the aggravation of the offence."
10. In general it may be observed that a perjury is committed
as well by making a false affirmation, as a false oath. Vide,
generally, 16 Vin. Abr. 307; Bac. Abr. h. t.; Com. Dig.
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Justices of the Peace, B 102 to 106; 4 Bl. Com. 137 to 139; 3
Inst. 163 to 168; Hawk. B. 1, c. 69; Russ. on Cr. B. 5, c. 1;
2 Chitt. Cr. L. c. 9; Roscoe on Cr. Ev. h. t.; Burn's J. h. t.
Williams' J. h. t.
PERMANENT-TRESPASSES. When trespasses of one and the same kind,
are committed on several days, and are in their nature capable of
renewal or continuation, and are actually renowed or continued
from day to day, so that the particular injury, done on each
particular day, cannot be distinguished from what was done on
another day, these wrongs are called permanent trespasses. in
declaring for such trespasses they may be laid with a
continuando. 3 Bl. Com. 212; Bac. Ab. Trespass, B 2; Id. 1 2;
1 Saund. 24, n. 1. Vide Continuando; Trespass.
PERMISSION. A license to do a thing; an authority to do an act
which without such authority would have been unlawful. A
permission differs from a law, it is a cheek upon the operations
of the law.
2. Permissions are express or implied. 1. Express permissions
derogate from something which before was forbidden, and may
operate in favor of one or more persons, or for the performance
of one or more acts, or for a longer or shorter time. 2. Implied,
are those, which arise from the fact that the law has not
forbidden the act to be done. 3. But although permissions do not
operate as laws, in respect of those persons in whose favor they
are granted; yet they are laws as to others. See License.
PERMISSIVE. Allowed; that which may be done; as permissive
waste, which is the permitting real estate to go to waste; when
a tenant is bound to repair he is punishable for permissive
waste. 2 Bouv. Inst. n. 2400. See Waste.
PERMIT. A license or warrant to do something not forbidden
bylaw; as, to land goods imported into the United States, after
the duties have been paid or secured to be paid. Act of Cong. of
2d March, 1799, s. 49, cl. 2. See form of such a permit, Gord.
Dig. Appendix, No. II. 46.
PERMUTATION, civil law. Exchange; barter.
2. This contract is formed by the consent of the parties, but
delivery is indispensable; for, without it, it mere agreement.
Dig. 31, 77, 4; Code, 4, 64, 3.
3. Permutation differs from sale in this, that in the former a
delivery of the articles sold must be made, while in the latter
it is unnecessary. It agrees with the contract of sale, however,
in the following particulars: 1. That he to whom the delivery is
made acquires the right or faculty of prescribing. Dig. 41, 3, 4,
17. 2. That the contracting parties are bound to guaranty to each
other the title of the things delivered. Code, 4, 64, 1. 3. That
they are bound to take back the things delivered, when they have
latent defects which they have concealed. Dig. 21, 1, 63. See Aso
& Man. Inst. B. 2, t. 16, c. 1; Nutation; Transfer.
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PERNANCY. This word, which is derived from the French prendre,
to take, signifies a taking or receiving.
PERNOR OF PROFITS. He who receives the profits of lands, &c. A
cestui que use, who is legally entitled and actually does receive
the profits, i's the pernor of profits.
PERPETUAL. That which is to last without limitation as to time;
as, a perpetual statute, which is one without limit as to time,
although not expressed to be so.
PERPETUATING TESTIMONY. The act by which testimony is reduced
to writing as prescribed by law, so that the same shall be read
in evidence in some suit or legal proceedings to be thereafter
instituted. The origin of this practice may be traced to the
canon law cap. 5, it ut lite non contestata, &c., et ibi.
Bockmer, n. 4; 8 Toull. n. 22. Vide Bill to perpetuate
testimony.
PERPETUITY, estates. Any limitation tending to take the subject
of it out of commerce for a longer period than a life or lives in
being, and twenty-one years beyond; and in case of a posthumous
child, a few months more, allowing for the term of gestation;
Randell on Perpetuities, 48; or it is such a limitation of
property as renders it unalienable beyond the period allowed by
law. Gilbert on Uses, by Sugden, 260, note.
2. Mr. Justice Powell, in Scattergood v. Edge, 12 Mod. 278,
distinguished perpetuities into two sorts, absolute and
qualified; meaning thereby, as it is apprehended, a distinction
between a plain, direct and palpable perpetuity, and the case
where an estate is limited on a contingency, which might happen
within a reasonable compass of time, but where the estate
nevertheless, from the nature of the limitation, might be kept
out of commerce longer than was thought agreeable to the policy
of the common law. But this distinction would not now lead to a
better understanding or explanation of the subject; for whether
an estate be so limited that it cannot take effect, until a
period too much protracted, or whether on a contingency which may
happen within a moderate compass of time, it equally falls within
the line of perpetuity and the limitation is therefore void; for
it is not sufficient that an estate may vest within the time
allowed, but the rule requires that it must. Randell on Perp. 49.
Vide Cruise, Dig. tit. 32, c. 23; 1 Supp. to Ves. Jr. 406; 2
Ves. Jr. 357; 3 Saund. 388 h. note; Com. Dig. Chancery, 4 G 1;
3 Chan. Cas. 1; 2 Bouv. Inst. n. 1890.
PERQUISITES. In its most extensive sense, perquisites signifies
anything gotten by industry, or purchased with money, different
from that which descends from a father or ancestor. Bract. lib.
2, c. 30, n. 8; et lib. 4, c. 22. In a more limited sense it
means something gained by a place or office beyond the regular
salary or fee.
PERSON. This word is applied to men, women and children, who
are called natural persons. In law, man and person are not
exactly-synonymous terms. Any human being is a man, whether he be
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a member of society or not, whatever may be the rank he holds, or
whatever may be his age, sex, &c. A person is a man considered
according to the rank he holds in society, with all the rights to
which the place he holds entitles him, and the duties which it
imposes. 1 Bouv. Inst. n. 137.
2. It is also used to denote a corporation which is an
artificial person. 1 Bl. Com. 123; 4 Bing. 669; C. 33 Eng. C. L
R. 488; Wooddes. Lect. 116; Bac. Us. 57; 1 Mod. 164.
3. But when the word "Persons" is spoken of in legislative
acts, natural persons will be intended, unless something appear
in the context to show that it applies to artificial persons. 1
Scam. R. 178.
4. Natural persons are divided into males, or men; and females
or women. Men are capable of all kinds of engagements and
functions, unless by reasons applying to particular individuals.
Women cannot be appointed to any public office, nor perform any
civil functions, except those which the law specially declares
them capable of exercising. Civ. Code of Louis. art. 25.
5. They are also sometimes divided into free persons and
slaves. Freemen are those who have preserved their natural
liberty, that is to say, who have the right of doing what is not
forbidden by the law. A slave is one who is in the power of a
master to whom he belongs. Slaves are sometimes ranked not with
persons but things. But sometimes they are considered as persons
for example, a negro is in contemplation of law a person, so as
to be capable of committing a riot in conjunction with white men.
1 Bay, 358. Vide Man.
6. Persons are also divided into citizens, (q. v.) and aliens,
(q. v.) when viewed with regard to their political rights. When
they are considered in relation to their civil rights, they are
living or civilly dead; vide Civil Death; outlaws; and
infamous persons.
7. Persons are divided into legitimates and bastards, when
examined as to their rights by birth.
8. When viewed in their domestic relations, they are divided
into parents and children; hushands and wives; guardians and
wards; and masters and servants son, as it is understood in law,
see 1 Toull. n. 168; 1 Bouv. Inst. n. 1890, note.
PERSONABLE. Having the capacities of a person; for example,
the defendant was judged personable to maintain this action. Old
Nat. Brev. 142. This word is obsolete.
PERSONAL. Belonging to the person.
2. This adjective is frequently employed in connection with
substantives, things, goods, chattels, actions, right, duties,
and the like as personal estate, put in opposition to real
estate; personal actions, in contradistinction to real actions;
personal rights are those which belong to the person; personal
duties are those which are to be performed in person.
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PERSONAL ACTIONS. Personal actions are those brought for the
specific goods and chattels; or for damages or other redress for
breach of contract or for injuries of every other description;
the specific recovery of lands, tenements and hereditaments only
excepted. Vide Actions, and 1 Com. Dig. 206, 450; 1 Vin. Ab.
197; 3 Bouv. Inst. n. 2641, et. seq.
PERSONAL LIBERTY. Vide Liberty.
PERSONAL PROPERTY. The right or interest which a man has in
things personal; it consists of things temporary and movable,
and includes all subjects of property not of a freehold nature,
nor descendable to the heirs at law. Things of a movable nature,
when a right can be had in them, are personal property, but some
things movable are not the subject of property; as light and
air. Under the term personal property, is also included some
property which is in its nature immovable, distinguished by the
name of chattels real, as an estate for years; and fixtures (q .
v.) are sometimes classed among personal property. A crop growing
in the ground is considered personal property. so far as not to
be considered an interest in land, under the statute of frauds.
11 East, 362; 1 Shopl. 337; 5 B & C. 829; 10 Ad. & E. 753; 9
B. & C. 561; sed vide 9 B. & C. 561.
2. It is a general principle of American law, that stock held
in corporations, is to be considered as personal property; Walk.
Introd. 211; 4 Dane's Ab. 670; Sull. on Land Tit. 71; 1 Hill.
Ab. 18; though it was held that such stock was real estate; 2
Conn. R. 567; but, this being found inconvenient, the law was
changed by the legislature.
3. Property in personal chattels is either absolute or
qualified; absolute, when the owner has a complete title and
full dominion over it; qualified, when -he has a temporary or
special interest, liable to be totally divested on the happening
of some particular event. 2 Kent, Com. 281.
4. Considered in relation to its use, personal property is
either in possession, that is, in the actual enjoyment of the
owner, or, in action, that is, not in his possession, but in the
possession of another, and recoverable by action.
5. Title to personal property is acquired. 1st. By original
acquisition by occupancy; as, by capture in war; by finding a
lost thing. 2d. By original acquisition; by accession. 3d. By
original acquisition, by intellectual labor; as, copyrights and
patents for inventions. 4th. IV transfer, which is by act of law.
1. By forfeiture. 2. By judgment. 3. By insolvency. 4. By
intestacy. 5th. By transfer, by act of the party. 1 . Gifts. 2.
Sale. Vide, generally, 16 Vin. Ab. 335; 8 Com. Dig. 474; Id.
562; 1 Supp. to Ves. Jr. 49, 121, 160, 198, 255, 368, 9, 399,
412, 478; 2 Ibid. 10, 40, 129, 290, 291, 341; 1 Vern. 3, 170,
412; 2 Salk. 449; 2 Ves. Jr. 59, 336, 176, 261, 271, 683; 7
Ves. 453. See Pew; Property; Real property.
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PERSONAL REPRESENTATIVES. These words are construed to mean the
executors or administrators of the person deceased. 6 Mad. R.
159; 2 Mad. R. 155; 5 Ves. 402; 1 Madd. Ch. 108.
PERSONAL SECURITY. The legal and uninterrupted enjoyment by a
man of his life, his body, his health and his reputation. 1 Bouv.
Inst. n. 202.
PERSONALITY OF LAWS. Those laws which regulate the condition,
state, or capacity of persons. The term is used in opposition to
those laws which concern property, whether real or personal, and
things. See Story, Confl. of L. 23; and Reality of laws.
PERSONAITY. An abstract of personal; as, the action is in the
personalty, that is, it is brought against a person for a
personal duty which he owes. It also signifies what belongs to
the person; as, personal property.
TO PERSONATE, crim. law. The act of assuming the character of
another without lawful authority, and, in such character, doing
something to his prejudice, or to the prejudice of another,
without his will or consent.
2. The bare fact of personating another for the purpose of
fraud, is no more than a cheat or misdemeanor at common law, and
punishable as such. 2 East, P. C. 1010; 2 Russ. on Cr. 479.
3. By the act of congress of the 30th April, 1790, s. 15, 1
Story's Laws U. S. 86, it is enacted, that " if any person shall
acknowledge, or procure to be acknowledged in any court of the
United States, any recognizance, bail or judgment, in the name or
names of any other person or persons not privy or consenting to
the same, every such person or persons, on conviction thereof,
shall be fined not exceeding five thousand dollars, or be
imprisoned not exceeding seven years, and whipped not exceeding
thirty-nine stripes, Provided nevertheless. that this act shall
not extend to the acknowledgment of any judgment or judgments by
any attorney or attorneys, duly admitted, for any person or
persons against whom any such judgment or judgments shall be bad
or given." Vide, generally, 2 John. Cas. 293; 16 Vin. Ab. 336;
Com. Dig. Action on the case for a deceit, A 3.
TO PERSUADE, PERSUADING. To persuade is to induce to act:
persuading is inducing-others to act. lnst. 4, 6, 23; Dig. 11,
3, 1, 5.
2. In the act of the legislature which declared that " if any
person or persons knowingly and willingly shall aid or assist any
enemies at open war with this state, &c. by persuading others to
enlist for that purpose, &c., he shall be adjudged guilty of high
treason;" the word persuading, thus used; means to succeed: and
there must be an actual enlistment, of the person persuaded in
order to bring the, defendant within the intention of the clause.
1 Dall. R. 39; Carr. Crim. L 237; 4 Car. & Payne, 369 S. C. 1 9
E. C L. R. 425; 9 Car. & P. 79; and article Administering;
vide 2 Lord Raym. 889. It may be fairly argued, however, that the
attempt to persuade without success would be a misdemeanor. 1
Russ. on Cr. 44.
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3. In England it has been decided, that to incite and procure a
person to commit suicide, is not a crime for which the party
could be tried. 9 C. & P. 79; 38 E. C. L. R. 42; M. C. C. 356.
Vide Attempt; Solicitation.
PERSUASION. The act of influencing by expostulation or request.
While the persuasion is confined within those limits which leave
the mind free, it may be used to induce another to make his will,
or even to make it in his own favor; but if such persuasion
should so far operate on the mind of the testator, that he would
be deprived of a perfectly free will, it would vitiate the
instrument. 3 Serg. & Rawle, 269; 5 Serg. & Rawle, 207; 13
Serg. & Rawle, 323.
PERTINENT, evidence. Those facts which tend to prove the
allegations of the party offering them, are called pertinent;
those which have no such tendency are called impertinent, 8
Toull. n. 22. By pertinent is also meant that which belongs.
Willes, 319.
PERTURBATION. This is a technical word which signifies
disturbance, or infringement of a right. It is usually applied to
the disturbance of pews, or seats in a church. In the
ecclesiastical courts actions for these disturbances are
technically called "suits for perturbation of seat." 1 Phillim.
323. Vide Pew.
PESAGE, mer. law. In England a toll bearing this name is
charged for weighing avoirdupois goods other than wool. 2 Chit.
Com. Law. 16.
PETIT, sometimes corrupted into petty. A French word signifying
little, small. It is frequently used, as petit larceny, petit
jury, petit treason.
PETIT, TREASON, English law. The killing of a master by his
servant; a hushand by his wife; a superior by a secular or
religious man. In the United States this is like any other
murder. See High, Treason; Treason.
PETITION. An instrument of writing or printing containing a
prayer from the person presenting it, called the petitioner, to
the body or person to whom it is presented, for the redress of
some wrong, or the grant of some favor, which the latter has the
right to give.
2. By the constitution of the United States the right "to
petition the government for a redress of grievances," is secured
to the people. Amendm. Art. 1.
3. Petitions are frequently presented to the courts in order to
bring some matters before them. It is a general rule, in such
cases, that an affidavit should be made that the facts therein
contained are true as far as known to the petitioner, and that
those facts which he states as knowing from others be believes to
be true.
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PETITION OF RIGHT, Eng. law. When the crown is in possession,
or any title is vested in it which is claimed by a subject, as no
suit can be brought against the king, the subject is allowed to
file in chancery a petition of right to the king.
2. This is in the, nature of an action against a subject, in
which the petitioner sets out his right to tbat which is demanded
by him, and prays the king to do him right and justice; and,
upon a due and lawful trial of the right, to make him
restitution. It is called a petition of right, because the king
is bound of right to answer it, and let the matter therein
contained be determined in a legal way, in like manner as causes
between subject and subject. The petition is presented to the
king, who subscribes it, with these words, soit droit fait al
partie, and thereupon it is delivered to the chancellor to be
executed according to law. Coke's Entr. 419, 422 b; Mitf. Eq.
Pl. 30, 31; Coop. Eq. Pl. 22, 23.
PETITORY. That which demands or petitions that which has, the,
quality of a prayer or petition; a right to demand.
2. A petitory suit or action is understood to be one in which
the mere title to property is to be enforced by means of a demand
or petition, as distin-guished from a possessory suit. 1 Kent,
Com. 371.
3. In the Scotch law, petitory actions are so called, not
because something is sought to be awarded by the judge, for in
that sense all actions must be petitory, but because some demand
is made upon the defender, in consequence either of the right of
property or credit in the pursuer. Thus, actions for restitution
of movables, actions of pounding, of forthcoming, and indeed all
personal actions upon contracts, or quasi contracts, which the
Romans called condictiones, are petitory. Ersk. Inst. b. 4, t. 1,
n. 47.
PETTY AVERAGE. A contribution by the owners of the ship,
freight and goods on board, for losses sustained by the ship and
cargo, which consist of small charges. Vide Average.
PETTY BAG, Engl. law. An office in the court of chancery,
appropriated for suits against attorneys and officers of the
court; and for, process and proceedings, by extent on statutes,
recognizances, ad quod damnum and the like. T. de la Ley.
PETTIFOGGER. One who pretends to be a lawyer, but possessing
neither knowledge, law, nor conscience.
PEW. A seat in a church separated from all others, with a
convenient space to stand therein.
2. It is an incorporeal interest in the real property. And,
although a man has the exclusive right to it, yet, it seems, he
cannot maintain trespass against a person entering it; 1 T. R.
430; but case is the proper remedy. 3 B. & Ald. 361; 8 B. & C.
294; S. C. 15 Eng. C. L. R. 221.
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3. The right to pews is limited and usufructuary, and does not
interfere with the right of the parish or congregation to pull
down and rebuild the church. 4 Ohio R 541; 5 Cowen's R. 496; 17
Mass. R. 435; 1 Pick. R. 102; 3 Pick. R. 344; 6 S. & R. 508;
9 Wheat. R. 445; 9 Cranch, R. 52; 6 John. R. 41; 4 Johns. Ch.
R. 596; 6 T. R. 396. Vide Pow. Mortgages, Index, h. t.; 2 Bl.
Com. 429; 1 Chit. Pr. 208, 210; 1 Pow. Mort. 17 n.
4. In Connecticut and Maine, and in Massachusetts, (except in
Boston), pews are considered real estate: in Boston they are
personal chattels. In New Hampshire they are personal property. 1
Smith's St. 145. The precise nature of such property does not
appear to be well settled in New York. 15 Wend. R. 218; 16 Wend.
R. 28; 5 Cowen's R. 494. See Rev. St. Mass. 413; Conn. L. 432;
10 Mass. R. 323 17 Mass. 438; 7 Pick. R. 138; 4 N. H. Rep. 180;
4 Ohio R. 515; 4 Harr. & McHen. 279; Harr. Dig. Ecclesiastical
Law. Vide Perturbation of seat; Best on Pres. 111; Crabb on R.
P. §481 to 497.
PHAROS. A light-house or beacon. It is derived from Phams, a
small island at the mouth of the Nile, on which was built a
watch-tower.
PHYSICIAN. One lawfully engaged in the practice of medicine.
2. A physician in England cannot recover for fees, as his
practice is altogether honorary. Peake C. N. P. 96, 123; 4 T. R.
317.
3. But in Pennsylvania, and perhaps in all the United States,
he may recover for his services. 5 Serg. & Rawle, 416. The law
implies, therefore, a contract on the part of a medical man, as
well as those of other professions, to discharge their duty in a
skillful and attentive manner; and the law will redress the
party injured by their neglect or ignorance. 1 Saund. 312, R; 1
Ld. Raym. 213; 2 Wils. 359; 8 East, 348.
4. They are sometimes answerable criminally for mala praxis.
(q. v.) 2 Russ. on Cr. 288; Ayl. Pand. 213; Com. Dig. h. t.
Vin. Ab. h. t.
PHYSIOLOGY, med. jur. The science which treats of the functions
of animals; it is the science of life.
2. The legal practitioner who expects to rise to eminence, must
acquire some acquaintance with physiology. This subject is
intimately connected with gestation, birth, life and death. Vide
2 Chit. Pr. 42, n.
PIGNORATION, civil law . This word is used by Justinian in the
title of the 52d novel, and signifies not only a pledge of
property, but an engagement of the person.
PICKPOCKET. A thief; one who in a crowd or. in other places,
steals from the pockets or person of another without putting him
in fear. This is generally punished as simple larceny.
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PIGNORATIVE CONTRACT, civ. law. A contract by which the owner
of an estate engages it to another for a sum of money, and grants
to him and his successors the right to enjoy it, until he shall
be reimbursed, voluntarily, that sum of money. Poth. h. t.
PIGNORIS CAPIO, ROM. civil law. The name given to one of the
legis actiones of the Roman law. It consisted chiefly in the
taking. of a pledge, and was in fact a mode of execution. It was
confined to special cases determined by positive law or by
custom, such as taxes, duties, rents, &c., and is comparable in
some respects to distresses at common law. The proceeding took
place in the presence of a praetor.
PIGNUS, civil law. This word signifies in English, pledge or
pawn. (q. v.) It is derived, says Gaius, from pugnium, the fist,
because what is delivered in pledge is delivered. in hand. Dig.
50, 16, 238, 2. This is one of several instances of the failure
of the Roman jurists, when they attempted etymological
explanation of words. The elements of pignus (pig) is contained
in the word pa(n)g-o, and its cognate forms. Smith's Dict. Gr.
and Rom. Antiq. h. v.
PILLAGE. The taking by violence of private property by a
victorious army from the citizens or subjects of the enenly.
This, in modern times, is seldom allowed, and then, only when
authorized by the commander or chief officer, at the place where
the pillage is committed. The property thus violently taken in
general belongs to the common soldiers. See Dall. Dict.
Propriete, art. 3, §5; Wolff, §1201; and Booty; Prize.
PILLORY, punishment. wooden machine in which the neck of the
culprit is inserted.
2. This punishment has been superseded by the adoption of the
penitentiary system in most of the states. Vide 1 Chit. Cr. Law,
797. The punishment of standing in the pillory, so far as the
same was provided by the laws of the United States, was abolished
by the act of congress of February 27, 1839, s. 5. See Baxr. on
the Stat. 48, note.
PILOT, mer. law. This word has two meanings. It signifies,
first, an officer serving on board of a ship during the course of
a voyage, and having the charge of the helm and of the ship's
route; and, secondly, an officer authorized by law, who is taken
on board at a particular place, for the purpose of conducting a
ship through a river, road or channel, or from or into port.
2. Pilots of the second description are established by
legislative enactments at the principal seaports in this country,
and have rights, and are bound to perform duties, agreeably to
the provisions of the several laws establishing them.
3. Pilots have been established in all maritime countries.
After due trial and experience of their qualifications, they are
licensed to offer themselves as guides in difficult navigation;
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and they are usually, on the other hand, bound to obey the call
of a ship-master to exercise their functions. Abbott on Ship.
180; 1 John R. 305; 4 Dall. 205; 2 New R. 82; 5 Rob. Adm.
Rep. 308; 6 Rob. Adm. R. 316; Laws of Oler. art. 23; Molloy,
B. 2, c. 9, s. 3 and 7; Wesk. Ins. 395; Act of Congress of 7th
August, 1789, s. 4; Merl. Repert. h. t.; Pardessus, n. 637.
PILOTAGE, contracts. The compensation given to a pilot for
conducting a vessel in or out of port. Poth. Des Avaries, n. 147.
2. Pilotage is a lien on the ship, when the contract has been
made by the master or quasi master of the ship, or some other
person lawfully authorized to make it; 1 Mason, R. 508; and the
admiralty court has jurisdiction, when services have been
performed at sea. Id.; 10 Wheat. 428; 6 Pet. 682; 10 Pet. 108;
and see 1 Pet. Adm. Dec. 227.
PIN MONEY. Money allowed by a man to his wife to spend for her
own personal comforts.
2. When pin money is given to, but not spent by the wife, on
his death it belongs to his estate. 4 Vin. Ab. 133, tit'. Baron
and Feme, E a. 8; 2 Eq. Cas. Ab. 156; 2 P. Wms. 341; 3 P. Wms.
353; 1 Ves. 267; 2 Ves. 190; 1 Madd. Ch. 489, 490.
3. In the French law the term Epingles, pins, is used to
designate the present which is sometimes given by the purchaser
of an immovable to the wife or daughters of the seller to induce
them to consent to the sale. This present is not considered as a
part of the consideration, but a purely voluntary gift. Diet. de
Jur. mot Epingles.
4. In England it was once adjudged that a promise to a wife, by
the purchaser, that if she would not hinder the bargain for the
sale of the hushand's lands, he would give her ten pounds, was
valid, and might be enforeed by an action of assumpsit,
instituted by hushand and wife. Roll. Ab. 21, 22.
5. It has been conjectured that the term pin money, has been
applied to signify the provision for a married woman, because
anciently there was a tax laid for providing the English queen
with pins. Barringt. on the Stat. 181.
PINT. A liquid measure containing half a quart or the eighth
part of a gallon.
PIPE, Eng. laid. The name of a roll in the exchequer otherwise
called the Great Roll. A measure containing two hogsheads; one
hundred and twenty-six gallons is also called a pipe.
PIRACY, crim. law. A robbery or forcible depreciation on the
high seas, without lawful authority, done animo furandi, in the
spirit and intention of universal hostility. 5 Wheat. 153, 163;
3 Wheat. 610; 3 Wash. C. C. R. 209. This is the definition of
this offence by the law of nations. 1 Kent, Com. 183. The word is
derived from peira deceptio, deceit or deception: or from peiron
wandering up and down, and resting in no place, but coasting
hither and thither to do mischief. Ridley's View, Part 2, c. 1,
s. 3.
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2. Congress may define and punish piracies and felonies on the
high seas, and offences against the law of nations. Const. U. S.
Art. 1, s. 7, n. 10; 5 Wheat. 184, 153, 76; 3 Wheat. 336. In
pursuance of the authority thus given by the constitution, it was
declared by the act of congress of April 30, 1790, s. 8, 1
Story's Laws U. S. 84, that murder or robbery committed on the
high seas, or in any river, haven, or bay, out of the
jurisdiction of any particular state, or any offence, which, if
committed within the body of a county, would, by the laws of the
United States, be punishable with death, should be adjudged to be
piracy and felony, and punishable with death. It was further
declared, that if any captain or manner should piratically and
feloniously run away with a vessel, or any goods or merchandise
of the value of fifty dollars; or should yield up such vessel
voluntarily to pirates; or if any seaman should forcible
endeavor to hinder his commander from defending the ship or goods
committed to his trust, or should make revolt in the ship; every
such offender should be adjudged a pirate and felon, and be
punishable with death. Accessaries before the fact are punishable
as the principal; those after the fact with fine and
imprisonment.
3. By a subsequent act, passed March 3, 1819, 3 Story, 1739,
made perpetual by the act of May 15, 1820, 1 Story, 1798,
congress declared, that if any person upon the high seas, should
commit the crime of piracy as defined by the law of nations, he
should, on conviction, suffer death.
4. And again by the act of May 15, 1820, s. 3, 1 Story, 1798,
congress declared that if any person should, upon the high seas,
or in any open roadstead, or in any haven, basin or bay, or in
any river where the sea ebbs and flows, commit the crime of
robbery in or upon any ship or vessel, or upon any of the ship's
company of any ship or vessel, or the lading thereof, such person
should be adjudged to be a pirate, and suffer death. And if any
person engaged in any piratical cruise or enterprize, or being of
the crew or ship's company of any piratical ship or vessel,
should land from such ship or vessel, and, on shore; should
commit robbery, such person should be adjudged a pirate and
suffer death. Provided that the state in which the offence may
have been committed should not be deprived of its jurisdiction
over the same, when committed within the body of a county, and
that the courts of the United States should have no jurisdiction
to try such offenders, after conviction or acquittal, for the
same offence, in a state court. The 4th and 5th sections of the
last mentioned act declare persons engaged in the slave trade, or
in forcibly detaining a free negro or mulatto and carrying him in
any ship or vessel into slavery, piracy, punishable with death.
Vide 1 Kent, Com. 183; Beaussant, Code Maritime, t. 1, p. 244;
Dalloz, Diet. Supp. h. t.; Dougl. 613; Park's Ins. Index, h. t.
Bac. Ab. h. t.; 16 Vin. Ab. 346; Ayl. Pand. 42 11 Wheat. R. 39;
1 Gall. R. 247; Id. 524 3 W. C. C. R. 209, 240; 1 Pet. C. C. R.
118, 121.
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PIRACY, torts. By piracy is understood the plagiarisms of a
book, engraving or other work, for which a copyright has been
taken out.
2. When a piracy has been made of such a work, an injunction
will be granted. 5 Ves. 709; 4 Ves. 681; 12 Ves. 270. Vide
copyright.
PIRATE. A sea robber, who, to enrich himself by subtlety or
open force, setteth upon merchants and others trading by sea,
despoiling them of their loading, and sometimes bereaving them of
life and, sinking their ships; Ridley's View of the Civ. and
Ecc. Law, part 2, c. 1, s. 8; or more generally one guilty of
the crime of piracy. Merl. Repert. h. t. See, for the etymology
of this word, Bac. Ab. Piracy
PIRATlCALLY, pleadings. This is a technical word, essential to
charge the crime of piracy in an indictment, which cannot be
supplied by another word, or any circumlocution. Hawk. B. 1, c.
37, s. 15; 3 Inst. 112; 1 Chit. Cr. Law, *244.
PISCARY. The right of fishing in the waters of another. Bac.
Ab. h. t.; 5 Com. Dig. 366. Vide Fishery.
PISTAREEN. A small Spanish coin. It is not a coin made current
by the laws of the United States. 10 Pet. 618.
PIT, fossa. A hole dug in the earth, which was filled with
water, and in which women thieves were drowned, instead of being
hung. The punishment of the pit was formerly common in Scotland.
PLACE, pleading, evidence. A particular portion of space;
locality.
2. In local actions, the plaintiff must lay his venue in the
county in which the action arose. It is a general rule, that the
place of every traversable fact, stated in the pleading, must be
distinctly alleged; Com. Dig. Pleader, c. 20; Cro. Eliz. 78,
98; Lawes' Pl. 57; Bac. Ab. Venue, B; Co. Litt. 303 a; and
some place must be alleged for every such fact; this is done by
designating the city, town, village, parish or district, together
with the county in which the fact is alleged to have occurred;
and the place thus designated, is called the venue. (q. v.)
3. In transitory actions, the place laid in the declaration,
need not be the place where the cause of action arose, unless
when required by statute. In local actions, the plaintiff will be
confined in his proof to the county laid in the declaration.
4. In criminal cases the facts must be laid and proved to have
been committed within the jurisdiction of the court, or the
defendant must be acquitted. 2 Hawk. c. 25, s. 84; Arcb. Cr. Pl.
40, 95. Vide, generally, Gould on Pl. c. 3, 102-104; Arcb. Civ.
Pl. 366; Hamm. N. P. 462; 1 Saund. 347, n. 1; 2 Saund. 5 n.
PLACE OF BUSINESS. The place where a man usually transacts his
affairs or business. When a man keeps a store, shop, counting
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room or office, independently and distinctly from all other
persons, that is deemed his place of business 3 and when he
usually transacts his business at the counting house, office, and
the like, occupied and used by another, that will also be
considered his place of business, if he has no independent place
of his own. But when he has no particular right to use a place
for such private purpose, as in an insurance office, in exchange
room, banking room, a post office, and the like, where persons
generally resort, these will not be considered as the party's
place of business, although he may occasionally or transiently
transact business there. 2 Pet. R. 121; 10 John. 501; 11 John.
231; 1 Pet. S. C. R. 582; 16 Pick. 392.
2. It is a general rule that a notice of the non-acceptance or
non-payment of a bill, or of the non-payment of a note, may be
sent either to the domicil or place of business of the person to
be affected by such notice, and the fact that one is in one town
and the other in the other will make no difference, and the
holder has his election to send to either. A notice to partners
may be left at the place of business of the firm or of any one of
the partners. Story on Pr. Notes, §312.
PLACITUM. A plea. This word is nomen generalissimum, and refers
to all the pleas in the case. 1 Saund. 388, n. 6; Skinn. 554;
S. C. earth. 834; Yelv. 65. By placitum is also understood the
subdivisions in abridgments and other works, where the point
decided in a case is set down, separately, and generally
numbered. In citing, it is abbreviated as follows: Vin. Ab.
Abatement, pl. 3.
2. Placita, is the style of the English courts at the beginning
of the record of Nisi Prius; in this sense, placita are divided
into pleas of the crown, and common pleas.
3. The word is used by continental writers to signify
jurisdictions, judgments, or assemblies for discussing causes. It
occurs frequently in the laws of tae Longobards, in which there
is a title de his qui ad, placitum venire coguntur. The word, it
has been suggested, is derived from the German platz, which
signifies the same as area facta. See Const. Car. Mag. Cap. IX.
Hine-mar's Epist. 227 and 197. The common formula in most of the
capitularies is "Placuit atque convenit inter Francos et corum
proceres," and hence, says Dupin, the laws themselves are often
called placita. Dupin, Notions sur le Droit, p. 73.
PLAGIARISM. The act of appropriating the ideas and language of
another, and passing them for one's own.
2. When this amounts to piracy the party who has been guilty of
it will be enjoined, when the original author has a copyright.
Vide Copyright; Piracy; Quotation; Pard. Dr. Com. n. 169.
PLAGIARIUS, civil law. He who fraudulently concealed a freeman
or slave who belonged to another.
2. The offence itself was called plagium.
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3. It differed from larceny or theft in this, that larceny
always implies that the guilty party intended to make a profit,
whereas the plagiarius did not intend to make any profit. Dig.
48, 15, 6; Code, 9, 20, 9 and 15.
PLAGIUM. Man stealing, kidnapping. This offence is the crimen
plagii of the Romans. Alis. Pr. Cr. Law, 280, 281.
PLAINT, Eng. law. The exhibiting of any action, real or
personal, in writing; the party making his plaint is called the
plaintiff.
PLAINTIFF, practice. He who, in a personal action, seeks a
remedy for an injury to his rights. Ham. on Parties, h. t.; 1
Chit. Pl. Index, h. t.; Chit. Pr. Index, h. t.; 1 Com. Dig. 36,
205, 308.
2. Plaintiffs are legal or equitable. The legal plaintiff is he
in whom the legal title or cause of action is vested. The
equitable plaintiff is he who, not having the legal title, yet,
is in equity entitled to the thing sued for; for example, when a
suit is brought by Benjamin Franklin for the use of Robert
Morris, Benjamin Franklin is the legal, and Robert Morris the
equitable plaintiff. This is the usual manner of bringing suit,
when the cause of action is not assignable at law, but is so in
equity. Vide Bouv. Inst. Index, h. t.; Parties to Actions.
PLAINTIFF IN ERROR. A party who sues out a writ of error, and
this whether in the court below he was plaintiff or defendant.
PLAN. The delineation or design of a city, a house or houses, a
garden, a vessel, &c. traced on paper or other substance,
representing the position, and the relative proportions of the
different parts.
2. When houses are built by one person agreeably to a plan, and
one of them is Sold to a person, with windows and doors in it,
the owner of the others cannot shut up those windows, nor has his
grantee any greater right. 1 Price, R. 27; 2 Ry. & Mo. 24; 1
Lev. 122; 2 Saund. 114, n. 4 1 M. & M. 396; 9 Bing 305; 1
Leigh's N. P. 559. See 12 Mass: 159; Hamm. N. P. 202; 2 Hill.
Ab. c. 12, n. 6 to 12; Com. Dig. Action on the case for a
nuisance, A. See Ancients Lights; Windows.
PLANTATIONS. Colonies, (q. v.) dependencies. (q. v.) 1 Bl. Com.
107. In England, this word, as it is used in St. 12, II. c. 18,
is never applied to, any of the British dominions in Europe, but
only to the colonies in the West Indies and America. 1 Marsh.
Ins, B. 1, c. 3, §2, page 64.
2. By plantation is also meant a farm.
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