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 been 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.
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,
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 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
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
PAIS, or PAYS. A French word signifying country. In law, matter
in pais is matter of fact in opposition to matter of record: a trial per pais,
is a trial by the country, that is, by a jury.
PALFRIDUS, A palfrey; a horse to travel on. 1 Tho. Co. Litt.
471; F. N. B. 93.
PANDECTS, civil law. The name of an abridgment or compilation of
the civil law, made by order of the emperor Justinian, and to which he gave the
force of law. It is also known by the name of Digest. (q. v.)
PANEL, practice. A schedule or roll containing the names of
jurors, summoned by virtue of a writ of venire facias, and annexed to the writ.
It is returned into the court whence the venire issued. Co. Litt. 158, b.
PANNEL, Scotch law. A person, accused of a crime; one indicted.
PAPER-BOOK, practice. A book or paper containing an abstract of
all the facts and pleadings necessary, to the full understanding of a case.
2. Courts of error and other courts, on arguments, require that the
judges shall each be furnished with such a paper-book in the court of king's
bench, in England, the transcript containing the whole of the proceedings,
filed or delivered between the parties, when the issue joined, in an issue in
fact, is called the paper-book. Steph. on Pl. 95; 3 Bl. Com. 317; 3 Chit. Pr.
521; 2 Str. 1131, 1266; 1 Chit. R. 277 2 Wils, R. 243; Tidd, Px. 727.
PAPER DAYS, Eng. law. Days on which special arguments are to
take place. Tuesdays and Fridays in term time are paper days appointed by the
court. Lee's Dict. of Pr. h. t.; Arch. Pr. 101.
PAPER MONEY. By paper money is understood the engagements to pay
money which are issued by governments and banks, and which pass as money.
Pardes. Dr. Com. n. 9. Bank notes are generally considered as cash, and win
answer, all the purposes of currency; but paper money is not a legal tender if
objected to. See Bank note, Specie, Tender.
PAR, comm. law. Equal. It is used to denote a state of equality
or equal value. Bills of exchange, stocks, and the like, are at par when they
sell for their nominal value; above par, or below par, when they sell for more
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,
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.
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
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 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.
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.
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 witnessat 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.
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.
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 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.
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 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
tohis interest it may be, is not binding on him, unless the supply of
necessaries to him be the object of the agreement; Newl. Contr. 2; 1 Eq. Cas.
Ab. 286; l Atk. 489; 3 Atk. 613; or unless he confirm the agreement after he
shall be of full age. Bac. Abr. Infancy; I 3. But he may take advantage of
contracts made with him, although the consideration were merely the infant's
promise, as in an action on mutual promises to marry. Bull. N. P. 155; 2 Str.
907; 1 Marsh. (Ken.) Rep. 76; 2 M. & S. 205. See Stark. Ev. pt. iv. page
724; 1 Nott & McCord, 197; 6 Cranch, 226; Com. Dig. Infant; Bac. Abr.
Infancy and Age; 9 Vin. Ab. 393, 4; 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, 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
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. 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
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 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.
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.
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
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 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.
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, 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 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
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. 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
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. 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.
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 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
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 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 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.
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. 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. &
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 thefir m all
their property, real, personal and mixed, and to employ all their skill, labor,
and services, in the trade, or business, for their common benefit. This, kind
of partnership is perhaps unknown in the United States. 5 Mason, R. 176.
4. - 2. General partnerships are properly such, where the parties carry
on all their trade and business for their joint benefit and profit; and it is
not material whether the capital stock be limited or not, or the contributions
of the partners be equal or unequal. Cowp. 814. The game appellation is given
to a partnership where the parties are engaged in one branch of trade only.
5. - 3. Special partnerships, are those formed for a special or
particular branch of business, as contradistinguished from the general business
or employment of the parties, or of one of them. When they extend to a single
transaction or adventure only, such as the purchase and sale of a particular
parcel of goods, they are more commonly called limited partnerships. The
appellation is however given to both classes of cases indiscriminately. Story,
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 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. 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 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.
26. Particular partnerships are such as are formed for any business not
of a commercial nature. Id. art. 2806. The business of thispartnership 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 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
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 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
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.
3. When such wall exists between two buildings, belonging to different
persons, and one of them takes it down with his buildings, he is required to
erect another in its place in a reasonable time, and with the least
inconvenience; the other owner must contribute to the expense, if the wall
required repairs, but such expense will be limited to the costs of the old
wall. 3 Kent, Com. 436. When the wall is taken down, it must be done with care;
but it is not the duty of the person taking it down to shore up or prop
the.,house of his neighbor, to prevent it from falling; if, however, the work
be done with negligence, by which injury accrues to the neighboring house, an
action will lie. 1 Moody & M. 362. Vide 4 C. & P. 161; 9 B. & C.
725; 12 Mass. R. 220; 4 Paige's R. 169; 1 C. & J. 20; 1 Pick. 434; 12 Mass.
220; 2 Roll., Ab. 564; 3 B. & Ad. 874; 2 Ad. &-Ell. 493 Crabb on R. P.
§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 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 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 beliens 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 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
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 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 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 orowners, or captain of such vessel, may be
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.
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 passe ngers 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.
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. 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, 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
§3. The subject to be patented
8. Patents are granted, 1. For inventions and discoveries. 2. For
importations. 1. Patents for inventions and discoveries. By the act, of July 4,
1836, sect. 6, it is enacted, that any person or persons having discovered or
invented any new and useful art, machine,, manufacture, or composition of
matter, or any new and useful improvement on any art, machine, manufacture, or
composition of matter, not known or used by others before his or their
discovery or invention thereof, and not, at the time of his application for a
patent, in public use or on sale, with his consent or allowance, as the
inventor or discoverer, and shall desire to obtain an exclusive property
therein, may make application in writing to the commissioner of patents,
expressing such desire, and the commissioner on due proceedings had, may grant
a patent therefor.
9. The thing to be patented must be an invention Or discovery; it must
be new and useful.
10. - 1. The invention or discovery must be something which the inventor
has himself found out; some peculiar device or manner of producing any given
effect. A patent cannot, therefore, be taken out for the elementary principles
of motion, which philosophy and science have discovered, but only for the
manner of applying them. 1 Gallis. 478; 2 Gallis. 51.
11. A patent may be taken out for an improvement on a machine which is
known and used; 3 Wheat. 454; but a mere change of former proportions, will not
entitle a party to a patent. 1 Gallis. 438; 2 Gallis. 51.
12. It is provided by the act of July 4, 1836, s. 13, that whenever the
original patentee shall be desirous of adding the description and specification
of any new improvement of the original invention or discovery which shall have
been invented or discovered by him subsequent to the date of his patent, he
may, like proceedings being had in all respects as in the case of original
applications, and on the payment of fifteen dollars, as hereinbefore provided,
have the same annexed to the original description and specification; and the
commissioner shall certify, on the margin of such annexed description and
specification, the time of its being annexed and recorded; and the same shall
thereafter have the same effect in law, to all intents and purposes as though
it had been embraced in the original description and specification.
13. And by the act of March 3, 1837, s. 8, that, whenever application
shall be made to the commissioner for any addition of a newly discovered
improvement to be made on an existing patent, or when ever a patent shall be
returned for correction, and re-issue, the specification of claim annexed to
every such patent shall be subject to revision and restriction, in the same
manner as are original applications for patents; the commissioner, shall not
add any such improvement to the patent in the one case, nor grant the re-issue
in the other case, until the applicant shall have entered a disclaimer, or
altered his specification of claim in accordance with the decision of the
commissioner; and in all such cases the applicant, if dissatisfied with such
decision, shall have the same remedy and be entitled to the benefit of the same
privileges and proceedings as are provided by law in the case of original
applications for patents.
14. - 2. The thing patented must be a new and useful invention,
discovery or improvement.
15. Among inventors, he who is first in time, has a right to the patent
for the invention. Pet. C. C. R. 394.
16. But by the act of March 3, 1839, sect. 7, it is provided, that every
person or corporation who has, or shill have, purchased or constructed any
newly invented machine, manufacture, or composition of matter, prior to the
application by the inventor or discoverer for a patent, shall be held to
possess the right to use, and vend to others to be used, the specific machine,
manufacture, or composition of matter so made or purchased, without liability
therefor to the inventor, or any other person interested in such invention; 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
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,
18. The act of August 29, 1842, sect, 3, provides that any citizen or
citizens, or alien or aliens, having resided, one year in the United States,
and taken the oath of his or their intention to become a citizen or citizens,
who by his, her, or their own industry, genius, efforts, and expense, may have
invented or produced any new and original design for a manufacture, whether of
metal, or other material or materials, or any new and original design for the
printing of woolen, silk, cotton, or other fabrics, or any new and original
design for a bust, statue, or has relief or composition in alto or basso
relievo, or any new and original impression or ornament, or to be placed on any
article of manufacture, the same being formed in marble or other material, or
any new and useful pattern, or print, or picture, to be either worked-into or
worked on, or printed, or painted, or cast, or otherwise fixed on, any article
of manufacture, or any new and original shape or configuration of ally article
of manufacture not known or used by others before his, her, or their invention
or production thereof, and prior to the time of his, her, or their application
for a patent therefor, and who shall desire or obtain an exclusive Property or
right therein to make, use, and sell and vend. the same, or copies of the same,
to others, by them, made, used, and sold, may make application in writing to
the commissioner of patents, expressing such desire, and the commissioner, on
due proceedings had, may grant a patent therefor, as in the case. now of
application for a patent: Provided, That the fee in such cases which by the now
existing laws would be required of the particular applicant shall be one-half
the sum, and that the duration of said patent shall be seven years, and that
all the regulations and provisions which now apply to the obtaining or
protection of patents not inconsistent with the provision's of this act, shall
apply to applications under this section.
2. Patents-for importations.
19. It is enacted by the act of March 3, 1839, s. 6, that no person
shall be debarred from receiving a patent for any invention or discovery, as
provided in the act approved on the fourth day of July, one thousand eight
hundred and thirty-six, to which this is additional, by reason of the same
having been patented in, a foreign country, more than six months prior to his
application: Provided, That the same shall not have been introduced into public
and common use, in the United States, prior to the application for such patent:
And provided, also, That in all cages every such patent shall be limited to the
term of fourteen years from the date or publication of such foreign
letters-patent. 20. And by the act of July 4, 1836, s. 8, it is provided, that
nothing in this act contained shall be, construed to deprive an 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
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, 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 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. 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
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.
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
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
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
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
42. The act of August 29, 1842, sect. 2, extends the provisions of the
last section to patents granted prior to the said fifteenth day of December,
though they may have been lost subsequently; provided, however, the same shall
not have been recorded anew under the provisions of said act.
4. Of the disclaimer.
43. The act of March 3, 1837 sect. 7, authorizes any patentee who shall
have, through inadvertence, accident, or mistake, made his specification of
claim too broad, claiming more than that of which he was the original or first
inventor, some material and substantial part of the thing patented being truly
and justly his own, any such patentee, his administrators, executors, and
assigns, whether of the, whole or of a sectional interest therein, may make
disclaimer of such parts of the thing patented as the disclaimant shall not
claim to hold by virtue of the patent or assignment, stating therein the extent
of his interest in, such patent; which disclaimer shall be in writing, attested
by one or more witnesses, and recorded in the patent office, on payment by the
person disclaiming, in manner as, other patent duties are required by law to be
paid, of the sum of ten dollars. And such disclaimer shall thereafter be taken
and considered as part of the originals specification, to the extent of the
interest which shall be possessed in the patent or right secured thereby, by
the disclaimant, and by those claiming by or under him subsequent to the record
thereof. But no such disclaimer shall affect any action pending at the time of
its being filed, except so far as may relate to the question of unreasonable
neglect or delay in filing the same.
5. Assignment of patents.
44. By virtue of the act of July 4, 1836, sect. 11, every-patent shall
be assignable in law, either as to the whole interest, or, any undivided part
thereof, by any instrument in writing; which assignment, and also every grant
and conveyance of the exclusive right under any patent, to make and use, and to
grant to others to make and use, the thing patented within and throughout any,
specified part or portion of the United States, shall be recorded in the patent
office within three months from the execution thereof. This act required the
payment of a fee of three dollars to be paid by the assignee, but this 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 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 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.
§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 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 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
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.
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
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. 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, 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
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 thepatentee.
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 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
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.
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.
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
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
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 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
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 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
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
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
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
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.
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
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 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 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 18Ves. 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
PAYS. The country. Trial per pays, is a trial by the country;
that is, by jury. Vide Pais.
PAX REGIS, Eng. law. The king's peace. In ancient times there
were certain limits which were known by this name. The pax regis, or the verge
of the court, as it was afterwards called, extended from the palace gate to the
distance of three miles, three furlongs, three acres, nine feet, nine palms and
nine barleycorns. Crabb's C. L. 41.
PEACE. The tranquillity enjoyed by a political society,
internally, by the good order which reigns among its members, and externally,
by the good understanding it has with all other nations. Applied to the
internal regulations of a nation, peace imports, in a technical sense, not
merely a state of repose and security, as opposed to one of violence and
warfare, but likewise a state of public order and decorum. Ham. N. P. 139; 12
Mod. 566. Vide, generally, Bac. Ab. Prerogative, D 4; Hale, Hist. P. C. 160; 3
Taunt. R. 14; 1 B. & A. 227; Peake, R. 89; 1 Esp. R. 294; Harr. Dig.
Officer, V 4; 2 Benth. Ev. 319, note. Vide Good behaviour; Surety of the peace.
PECK. A measure of capacity, equal to two gallons. Vide Measure.
PECULATION, civil law. The unlawful appropriation by a
depositary of public funds, of the property of the government entrusted to his
care, to his own use or that of others. Domat, Suppl. au Droit Public, liv. 3,
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.
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.) hasbeen 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
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
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
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.
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.
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
3. When it is doubtful whether the sum was intended as a penalty or not,
and a certain damage or debt is made payable on the face of the instrument. 2
B. & P. 350; 3 C. & P. 240. 4. When the agreement was evidently made
for the attainment of another object, to which the sum, specified is wholly
collateral, 11 Mass. 76; 15 Mass. 488; 1 Bro. C. C. 418, 419. 5. When the
agreement contains several matters, of different degrees of importance, and yet
the sum mentioned is payable for the breach of any, even the least. 6 Bing.
141; 5 Bing. N. C. 390; 7 Scott, 364. 6. When the contract is not under seal,
and the damages may be ascertained and estimated; and this though the parties
have expressly declared the sum to be as liquidated damages. 2B. & Ald.
704; 6 B. & C. 216; 4 Dall. 150; 5 Cowen, 144. See 2 Greenl. Ev. 258. 1
Holt N. P. C. 43 1 Bing. R. 302; S. C. 8 Moore, 244; 4 Burr. 2229.
6. The penalty remains unaffected, although the condition may have been
partially performed; as in a case where the penalty was one thousand dollars,
and the condition was to pay an annuity of one hundred dollars, which had been
paid for ten years; the penalty was still valid. 5 Verm. 365.
7. A distinction seems to be made in courts of equity between penalties
and forfeitures. In cases of forfeiture for the breach of any covenant other
than a covenant to pay rent, relief will not be granted in equity, unless upon
the ground of accident, fraud, mistake, or surprise, when the breach is capable
of compensation. Edin. on Inj. 22; 16 Ves. 403; S. C. 18 Ves. 58 3 Ves. 692; 4
Bouv. List. n. 3915.
8. By penalty is understood, also, the punishment inflicted by law for
its violation; the term is mostly applied to a pecuniary punishment. See 6 Pet.
404; 10 Wheat. 246; 1 Gall. R. 26; 2 Gall. R. 515; 1 Mason, R. 243; 3 John.
Cas. 297: R. 451; 15 Mass. 488; 7 John. 72 4 Mass. 433; 8 Mass. 223; 8 Com.
Dig. 846; 16 Vin. Ab. 301; 1 Vern. 83, n.; 1 Saund. 58, n.; 1 Swans. 318; 1
Wash. C. C. R. 1; 2 Wash. C. C. R. 323; Paine, C. C. R. 661; 7 Wheat. 13. See,
generally, Bouv. Inst. Index, h. t.
PENANCE, eccl. law. An ecclesiastical punishment, inflicted by
an ecclesiastical court, for some spiritual offence. Ayl. Par. 420.
PENCIL. An instrument made of plumbago, black lead, red chalk,
or other suitable substance, for writing without ink.
2. It has been holden that a will written with a pencil, could riot, on
this account, be annulled. 1 Phillim. R. 1; 2 Phillim. 173.
PENDENTE LITE. Pending the continuance of an action, while
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.
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, 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
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 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, 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 ofthe
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
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
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
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."
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.
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;
PER. By. When a writ of entry is sued out against the alienee,
or descendant of the original disseisor, it is then said to be brought in the
per, because the writ states that the tenant had not the entry but by the
original wrong doer. 3 Bl. Com. 181. See Entry, writ of.
PER CAPITA, by the head or polls. This term is applied when an
estate is to be divided share and share alike. For example, if a legacy be
given to the issue of A B, and A B at the time of his death, shall have two
children and two grandchildren, his estate shall be divided into four parts,
and the children and grandchildren shall each have one of them. 3 Ves. 257; 13
Ves. 344. Vide 1 Rop. on Leg. 126, 130.
PER AND CUI. When a writ of entry is brought against a second
alienee or descendant from the disseisor, it is said to be in the per and cui,
because the form of the writ is that the tenant had not entry but by and under
a prior alienee, to whom the intruder himself demised it. 2 Bl. Com. 181. See
Entry, writ of.
PER FRAUDEM. A replication to a plea where something has been
pleaded which would be a discharge, if it had been honestly pleaded, that such
a thing has been obtained by fraud for example, where on debt on a statute, the
defendant pleads a prior action depending, if such action has been commenced by
fraud the plaintiff may reply per fraudem: 2 Chit. Pl. *675.
PER INFORTUNIUM, criminal law. Homicide per infortunium, or by
misadventure, is said to take place when a man in doing a lawful act, without
any intent to hurt, unfortunately kills another. Hawk. bk. 1, c. 11; Foster,
258, 259; 3 Inst. 56.
PER MINAS. By threats. When a man is compelled to enter into a
contract by threats or menaces, either for. fear of loss of life, or mayhem, he
may avoid it afterwards. 1 Bl. Com. 131; Bac. Ab. Duress; Id. Murder A. See
PER MY ET PER TOUT. By every part or parcel and by the whole. A
joint tenant of lands is said to be seised per my et per tout. Litt. s. 288.
See 7 Mann. & Gr. 172, note c.
PER QUOD, pleading. By which; whereby.
2. When the plaintiff sues for an injury to his relative rights, as for
beating his wife, his child,, or his servant, it is usual to lay the injury
with a per quod. In such case, after complaining of the injury, say to the
wife, the declaration proceeds, "insomuch that the said E F, (the wife,) by
means of the premises, then and there became and was sick, sore, lame, and
disordered, and so remained and continued for a long space of time, to wit,
hitherto, whereby he, the said A B, (the plaintiff,) lost", &c. 2 Chit. Pl.
422; 3 Bl. Com. 140. It seems that the per quod is not traversable. 1 Saund.
298; 1 Ld. Raym. 410; 2 Keb. 607; 1 Saund. 23, note 5.
PER STIRPES. By stock; by roots.
2. When, for example, a man dies intestate, leaving children and
grandchildren, whose parents are deceased, the estate is to be divided not per
capita, that is, by each of the children and grandchildren taking a share, but
per stirpes, by each of the children taking a share, and the grandchildren, the
children of a deceased child, taking a share to be afterwards divided among
themselves per capita.
PERAMBULATIONE FACIENDA, WRIT DE, Eng. law. The name of a writ
which is sued by consent of both parties, when they are in doubt as to the
bounds of their respective estates; it is directed to the sheriff to make
perambulation, and to set the bounds and limits between them in certainty. F.
N. B. 309.
2. "The writ de perambulatione facienda is not known to have been
adopted in practice in the United States," says Professor Greenleaf, Ev.
§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
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. 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. &
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
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.
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.
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,
4. - 2. The oath must be false. The party must believe that what he is
swearing is fictitious; for, if intending to deceive, he asserts that which may
happen to be true, without any knowledge of the fact, he is equally criminal,
and the accidental truth of his evidence will not excuse him. 3 Inst. 166 Hawk.
B. 1, c. 69, s. 6.
5. - 3. The party must be lawfully sworn. The person by whom the oath is
administered must have competent authority to receive it; an oath, therefore,
taken before a private person, or before an officer having no jurisdiction,
will not amount to perjury. 3 Inst. 166; 1 Johns. R. 498; 9 Cowen, R. 30; 3
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. 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.
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,
3. Permutation differs from sale in this, that in the former a delivery
of the articles sold must be made, while in the latter it is unnecessary. It
agrees with the contract of sale, however, in the following particulars: 1.
That he to whom the delivery is made acquires the right or faculty of
prescribing. Dig. 41, 3, 4, 17. 2. That the contracting parties are bound to
guaranty to each other the title of the things delivered. Code, 4, 64, 1. 3.
That they are bound to take back the things delivered, when they have latent
defects which they have concealed. Dig. 21, 1, 63. See Aso & Man. Inst. B.
2, t. 16, c. 1; Nutation; Transfer.
PERNANCY. This word, which is derived from the French prendre,
to take, signifies a taking or receiving.
PERNOR OF PROFITS. He who receives the profits of lands, &c.
A cestui que use, who is legally entitled and actually does receive the
profits, i's the pernor of profits.
PERPETUAL. That which is to last without limitation as to time;
as, a perpetual statute, which is one without limit as to time, although not
expressed to be so.
PERPETUATING TESTIMONY. The act by which testimony is reduced to
writing as prescribed by law, so that the same shall be read in evidence in
some suit or legal proceedings to be thereafter instituted. The origin of this
practice may be traced to the canon law cap. 5, it ut lite non contestata,
&c., et ibi. Bockmer, n. 4; 8 Toull. n. 22. Vide Bill to perpetuate
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 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.
PERSONABLE. Having the capacities of a person; for example, the
defendant was judged personable to maintain this action. Old Nat. Brev. 142.
This word is obsolete.
PERSONAL. Belonging to the person.
2. This adjective is frequently employed in connection with
substantives, things, goods, chattels, actions, right, duties, and the like as
personal estate, put in opposition to real estate; personal actions, in
contradistinction to real actions; personal rights are those which belong to
the person; personal duties are those which are to be performed in person.
PERSONAL ACTIONS. Personal actions are those brought for the
specific goods and chattels; or for damages or other redress for breach of
contract or for injuries of every other description; the specific recovery of
lands, tenements and hereditaments only excepted. Vide Actions, and 1 Com. Dig.
206, 450; 1 Vin. Ab. 197; 3 Bouv. Inst. n. 2641, et. seq.
PERSONAL LIBERTY. Vide Liberty.
PERSONAL PROPERTY. The right or interest which a man has in
things personal; it consists of things temporary and movable, and includes all
subjects of property not of a freehold nature, nor descendable to the heirs at
law. Things of a movable nature, when a right can be had in them, are personal
property, but some things movable are not the subject of property; as light and
air. Under the term personal property, is also included some property which is
in its nature immovable, distinguished by the name of chattels real, as an
estate for years; and fixtures (q . v.) are sometimes classed among personal
property. A crop growing in the ground is considered personal property. so far
as not to be considered an interest in land, under the statute of frauds. 11
East, 362; 1 Shopl. 337; 5 B & C. 829; 10 Ad. & E. 753; 9 B. & C.
561; sed vide 9 B. & C. 561.
2. It is a general principle of American law, that stock held in
corporations, is to be considered as personal property; Walk. Introd. 211; 4
Dane's Ab. 670; Sull. on Land Tit. 71; 1 Hill. Ab. 18; though it was held that
such stock was real estate; 2 Conn. R. 567; but, this being found inconvenient,
the law was changed by the legislature.
3. Property in personal chattels is either absolute or qualified;
absolute, when the owner has a complete title and full dominion over it;
qualified, when -he has a temporary or special interest, liable to be totally
divested on the happening of some particular event. 2 Kent, Com. 281.
4. Considered in relation to its use, personal property is either in
possession, that is, in the actual enjoyment of the owner, or, in action, that
is, not in his possession, but in the possession of another, and recoverable by
5. Title to personal property is acquired. 1st. By original acquisition
by occupancy; as, by capture in war; by finding a lost thing. 2d. By original
acquisition; by accession. 3d. By original acquisition, by intellectual labor;
as, copyrights and patents for inventions. 4th. IV transfer, which is by act of
law. 1. By forfeiture. 2. By judgment. 3. By insolvency. 4. By intestacy. 5th.
By transfer, by act of the party. 1 . Gifts. 2. Sale. Vide, generally, 16 Vin.
Ab. 335; 8 Com. Dig. 474; Id. 562; 1 Supp. to Ves. Jr. 49, 121, 160, 198, 255,
368, 9, 399, 412, 478; 2 Ibid. 10, 40, 129, 290, 291, 341; 1 Vern. 3, 170, 412;
2 Salk. 449; 2 Ves. Jr. 59, 336, 176, 261, 271, 683; 7 Ves. 453. See Pew;
Property; Real property.
PERSONAL REPRESENTATIVES. These words are construed to mean the
executors or administrators of the person deceased. 6 Mad. R. 159; 2 Mad. R.
155; 5 Ves. 402; 1 Madd. Ch. 108.
PERSONAL SECURITY. The legal and uninterrupted enjoyment by a
man of his life, his body, his health and his reputation. 1 Bouv. Inst. n. 202.
PERSONALITY OF LAWS. Those laws which regulate the condition,
state, or capacity of persons. The term is used in opposition to those laws
which concern property, whether real or personal, and things. See Story, Confl.
of L. 23; and Reality of laws.
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.
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
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.
3. Petitions are frequently presented to the courts in order to bring
some matters before them. It is a general rule, in such cases, that an
affidavit should be made that the facts therein contained are true as far as
known to the petitioner, and that those facts which he states as knowing from
others be believes to be true.
PETITION OF RIGHT, Eng. law. When the crown is in possession, or
any title is vested in it which is claimed by a subject, as no suit can be
brought against the king, the subject is allowed to file in chancery a petition
of right to the king.
2. This is in the, nature of an action against a subject, in which the
petitioner sets out his right to 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.
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.
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.
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
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
3. Pilots have been established in all maritime countries. After due
trial and experience of their qualifications, they are licensed to offer
themselves as guides in difficult navigation; and they are usually, on the
other hand, bound to obey the call of a ship-master to exercise their
functions. Abbott on Ship. 180; 1 John R. 305; 4 Dall. 205; 2 New R. 82; 5 Rob.
Adm. Rep. 308; 6 Rob. Adm. R. 316; Laws of Oler. art. 23; Molloy, B. 2, c. 9,
s. 3 and 7; Wesk. Ins. 395; Act of Congress of 7th August, 1789, s. 4; Merl.
Repert. h. t.; Pardessus, n. 637.
PILOTAGE, contracts. The compensation given to a pilot for
conducting a vessel in or out of port. Poth. Des Avaries, n. 147.
2. Pilotage is a lien on the ship, when the contract has been made by
the master or quasi master of the ship, or some other person lawfully
authorized to make it; 1 Mason, R. 508; and the admiralty court has
jurisdiction, when services have been performed at sea. Id.; 10 Wheat. 428; 6
Pet. 682; 10 Pet. 108; and see 1 Pet. Adm. Dec. 227.
PIN MONEY. Money allowed by a man to his wife to spend for her
own personal comforts.
2. When pin money is given to, but not spent by the wife, on his death
it belongs to his estate. 4 Vin. Ab. 133, tit'. Baron and Feme, E a. 8; 2 Eq.
Cas. Ab. 156; 2 P. Wms. 341; 3 P. Wms. 353; 1 Ves. 267; 2 Ves. 190; 1 Madd. Ch.
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.
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.
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;
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 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.
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
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 plan tation is also meant a farm.
PLAT. A map of a piece of land, in which are marked the courses
and disstances of the different lines, and the quantity of land it contains.
2. Such a plat;nay be given in evidence in ascertaining the position of
the land, and what is included, and may serve to settle the figure of a survey,
and correct mistakes. 5 Monr. 160. See 17 Mass. 211; 5 Greenl. 219; 7 Greenl,
61; 4 Wheat. 444; 14 Mass. 149.
PLEA, chancery practice. "A plea," says Lord Bacon, speaking of
proceedings in courts of equity, "is a foreign matter to discharge or stay the
suit." Ord. Chan. (ed. Beam.) p. 26. Lord Redesdale defines it to be " a
special answer showing or relying upon one or more thisgs as a cause why the
suit should be either dismissed, delayed or barred." Mitf. Tr. Ch. 177; see
Coop. Eq. Pl. 223; Beames' Pl. Eq. 1. A plea is a special answer to a bill, and
differs in this from an answer in the common form, as it demands the judgment
of the court in the first instance, whether the matter urged by it does not
debar the plaintiff from his title to that answer which the bill requires. 2
Sch. & Lef. 721.
2. Pleas are of three sorts: 1. To the jurisdiction of the court. 2. To
the person of the plaintiff. 3. In bar of the plaintiff's suit. Blake's Ch. Pr.
112. See, generally, Beames' Elem. of Pleas in Eq.; Mitf. Tr. Cha. oh. 2, s. 2,
pt. 2; Coop. Eq. Pl. ch. 5; 2 Madd. Ch. Pr. 296 to 331; Blake's Ch. Pr. 112 to
114; Bouv. Inst. Index, h. t.
PLEA, practice. The defendant's answer by matter of fact, to the
2. It is distinguished from a demurrer, which opposes matter of law to
the declaration. Steph. Pl. 62.
3. Pleas are divided into plea dilatory and peremptory; and this is the
most general division to which they are subject.
4. Subordinate to this is another division; they are either to the
jurisdiction of the court, in suspension of the action; in abatement of the
writ; or, in bar of the action; the first three of which belong to the dilatory
class, the last is of the peremptory kind. Steph. Pl. 63; 1 Chit. Pl. 425;
Lawes, Pl. 36.
5. The law has prescribed and settled the order of pleading, which the
defendant is to pursue, to wit; 1st. To the jurisdiction of the court. 2d. To
the disability, &c. of the person. 1st. Of thepla'intiff. 2d. Of the
defendant. 3d. To the count or declaration. 4th. To the writ. 1st. To the form
of the writ; first, Matter apparent on the face of it, secondly, Matter dehors.
2d. To the action of the writ. 5th. To the action itself in bar.
6. This is said to be the natural order of pleading, because each
subsequent, plea admits that there is no foundation for the former. Such is the
English law. 1 Ch. Plead. 425. The rule is different with regard to the plea of
jurisdiction in the courts of the United States and those of Pennsylvania. 1.
Binn. 138; ld. 219; 2 Dall. 368; 3 Dall. 19; 10 S. & R. 229.
7. - 2. Plea, in its ancient sense, means suit or action, and it is
sometimes still used in that sense; for example, A B was summoned to answer C D
of a plea that he render, &c. Steph. Pl. 38, 39, u. 9; Warr. Law Studies,
272, note n.
8. - 3. This variable word, to plead, has still another and more popular
use, importing forensic argument in a cause, but it is not so employed by the
profession. Steph. Pl. App. note 1.
9. There are various sorts of pleas, the principal of which are given
10. Plea in abatement, is when, for any default, the defendant prays
that the writ or plaint do abate, that is, cease against him for that time.
Com. Dig. Abatement, B.
11. Hence it may be observed, 1st. That the defendant may plead in
Abatement for faults apparent on the writ or plaint itself, or for such as are
shown dehors, or out of the writ or plaint. 2d. That a plea in, abatement is
never perpetual, but only a temporary plea, in form at least, and if the cause
revived, the plaintiff may sue again.
12. If the defendant plead a plea in abatement, in his plea, he ought
generally to give a better writ to the plaintiff, that is, show him what other
and better writ can be adopted; Com. Dig. Abatement, I 1; but if the plea go to
the matter and substance of the writ, &c., he need not give the plaintiff
another writ. Nor need he do so when the plea avoids the whole cause of the
action. Id. I 2.
13. Pleas in abatement are divided into those relating, first, to the
disability of the plaintiff or defendant; secondly, to the count or
declaration; thirdly, to the writ. 1 Chit. Pl. 435.
14. - 1. Plea in abatement to the person of the plaintiff. Pleas of this
kind are either that the plaintiff is not in existence, being only a fictitious
person, or dead; or else, that being in existence, he is under some disability
to bring or maintain the action, as by being an alien enemy; Com. Dig.
Abatement, E 4 Bac. Abr. Abatement, B 3; 1 Chit. Pl. 436; or the plaintiff is a
married woman, and she sues alone. See 3 T. R. 631; 6 T. R. 265.
15. Plea in abatement to the person of the defendant. These pleas are
coverture, and, in the English law, infancy, when the parol shall demur. When a
feme covert is sued, and the objection is merely that the hushand ought to have
been sued jointly with her; as when, since entering into the contract, or
committing the tort, she has married; she must, when sued alone, plead her
coverture in abatement, and aver that her hushand is living. 3 T. R. 627; 1
Chit. Pl. 437 , 8.
16. - 2. Plea in abatement to the count. Pleas of this kind are for some
uncertainty, repugnancy, or want of form, not appearing on the face of the writ
itself, but apparent from the recital of it in the declaration only; or else
for some variance between the writ and declaration. But it was always necessary
to obtain oyer of the writ before the pleading of these pleas; and since oyer
cannot now be had of the original writ for the purpose of pleading them, it
seems that they can no longer be pleaded. See Oyer.
17. Plea in abatement to the form of the writ. Such pleas are for some
apparent uncertainty, repugnancy, or want of form, variance from the record,
specialty, &c., mentioned therein, or misnomer of the plaintiff or
defendant. Lawes' Civ. Pl. 106; 1 Chit. Pl. 440.
18. Plea in abatement to the action of the writ. Pleas of this kind are
pleaded when the action is misconceived, or was prematurely commenced before
the cause of action arose; or when there is another action depending for the
same cause. Tidd's Pr. 579. But as these matters are ground for demurrer or
nonsuit, it is now very unusual to plead them in abatement. See 2 Saund. 210,
19. Plea in avoidance, is one which confesses the matters contained in
the declaration, and avoids the effect of them, by some new matter which shows
that the plaintiff is not entitled to maintain his action. For example, the
plea may admit the contract declared upon, and show that it was void or
voidable, because of the inability of one of the parties to make it, on account
of coverture, infancy, or the like. Lawes, Pl. 122.
20. Plea in bar, is one that denies that the plaintiff has any cause of
action. 1 Ch. Pl. 459 Co. Litt. 303 b; 6 Co. 7. Or it is one which shows some
ground for barring or defeating the action; and makes prayer to that effect,
Steph. Pl. 70; Britton, 92. See Bar.
21. A plea in bar is, therefore, distinguished from all pleas of the
dilatory class, as impugning the right of the action altogether, instead of
merely tending to divert the proceedings to another jurisdiction, or suspend
them, or abate the particular writ. It is in short a substantial and conclusive
answer to the action. It follows, from this property, that in general, it must
either deny all, or some essential part of the averments of fact in the
declaration; or, admitting them to be true, allege new facts, which obviate and
repel their legal effect. In the first case the defendant is said, in the
language of pleading, to traverse the matter of the declaration; in the latter,
to confess and avoid it. Pleas in bar are consequently divided into pleas by
way of traverse, and pleas by way of confession and avoidance. Steph. Pl. 70,
22. Pleas in bar are, also divided into general or special. General
pleas in bar deny or take issue either upon the whole or part of the
declaration, or contain some new matter which is relied upon by the defendant
in his defence. Lawes Pl. 110.
23. Special pleas in bar a re very various, according to the
circumstances of the defendant's case; as, in personal actions, the defendant
may plead any special matter in denial, avoidance, discharge, excuse, or
justification of the matter alleged in the declaration, which destroys or bars
the plaintiff's action; or he may plead any matter which estops, or precludes
him from averring or insisting on any matter relied upon by the plaintiff in
his declaration. The latter sort of pleas are called pleas in estoppel. In real
actions, the tenant may plead any matter which destroys and bars the
demandant's title; as, a general release. Id. 115, 116.
24. The general qualities of a plea in bar are, 1. That it be adapted to
the nature and form of the action, and also conformable to the count. Co. Litt.
303, a 285, b; Bac. Abr. Pleas, I; 1 Roll. Rep. 216.
2. That it answers all it assumes to answer, and no more. Co. Litt. 303
a; Com. Dig. Pleader, E 1, 36; 1 Saund. 28, n. 1, 2, 3; 2 Bos. & Pull. 427;
3 Bos. & Pull. 174.
3. In the case of a special plea, that it confess and admit the fact. 3
T. R. 298; 1 Salk. 394; Carth. 380; 1 Saund. 28, n. and 14 u. 3 10 Johns. R.
4. That it be single. Co. Litt. 304; Bac. Ab. Pleas, 2 Saund. K, 1, 2;
Com Dig. Plead. E 2; 49, 50; Plowd. Com. 140, d.
5. That it be certain. Com. Dig. Pleader, E 5, 7, 8, 9, 10, 11; C 41;
this Dict. Certainty; Pleading.
6. It must be direct, positive, and not argumentative. See 6 Cranch,
126; 9 Johns. It. 313.
7. It must be capable of trial. 8. It must be true and capable of proof.
See Plea, sham.
25. The parts of a plea in bar may be considered with reference to,
1. The title of the court in which it is pleaded.
2. The title of the term.
3. The names of the parties in the margin. These, however, do not
constitute any part of the plea. The surnames only are usually inserted, and
that of the defendant precedes the plaintiff's; as, " Roeats. Doe."
4. The commencement which includes the statement of, 1. The name of the
defendant; 2. The appearance; 3. The defence; see Defence; 4. The actio non;
see dctio non.
5. The body, which may contain, 1. The inducement; 2. The protestation;
3. Ground of defence 4. Qua est eadem; 5. The traverse. 6. The conclusion.
26. Dilatory pleas are such as delay the plaintiff's remedy, by
questioning, not the cause of action, but the propriety of the suit, or the
mode in which the remedy is sought.
27. Dilatory pleas are divided by Sir William Blackstone, into three
kinds: 1. Pleas to the jurisdiction of the court; as, that the cause of action
arose out of the limits of the jurisdiction of the court, when the action is
local. 2. Pleas to the disability of the plaintiff, or, as they are usually
termed, to' the person of the plaintiff; as, that he is an alien enemy. 3.
Pleas in abatement of the writ, or count; these are founded upon some defect or
mistake, either in the writ itself; as, that the defendant is misnamed in it,
or the like; or in the mode in which the count pursues it; as, that there is
some variance or repugnancy between the count and writ; in which case, the
fault in the count furnishes a cause for abating the writ. 2 Bl. Com. 301 Com.
Dig. Abatement, G 1, 8; Id. Pleader, C 14, 15; Bac. Ab. Pleas, F 7.
28. All dilatory pleas are sometimes called pleas in abatement, as
contradistinguished to pleas to the action; this is perhaps not strictly
proper, because, though all pleas in abatement are dilatory pleas, yet all
dilatory pleas are not pleas in abatement. Gould on Pl. ch. 2, §35; vide 1
Chit. PI, ch. 6; Bac. Ab. Abatement, 0; 1 Mass 358; 1 John. Cas. 101. 2. A plea
in discharge, as distinguish ed from a plea in avoidance, is one which admits
the demand, and instead of avoiding the payment or satisfaction of it, shows
that it has been discharged by some matter of fact. Such are pleas of payment,
release, and the like.
30. A plea in excuse, is one which admits the demand or complaint stated
in the declaration, but excuses the non-compliance of the plaintiff's claim, or
the commission of the act of which he complains, on account of the defendant
having done all in his power to satisfy the former, or not having teen the
culpable author of the latter. A plea of tender is an example of the former,
and a plea of son assault demesne, an instance of the latter.
31. A foreign plea is one which takes the cause out of the court where
it is pleaded, by showing a want of jurisdiction in that court. 2 Lill. Pr.
Beg. 374; Carth. 402. See the form of the plea in Lill. Ent. 475.
32. A plea of justification is one in which the defendant professes
purpo sely to have done the acts which are the subject of the plaiutiff's suit,
in order to exercise that right which he considers he might in point of law
exercise, and in the exercise of which he conceives himself not merely excused,
33. A plea puis darrein continuance. Under the ancient law, there were
continuances, i. e. adjournments of the proceedings for certain purposes, from
one day or one term to another; and, in such cases, there was an entry made on
the record, expressing the ground of the adjournment, and appointing the
parties to reappear at a given day.
34. In the interval between such continuance and the day appointed, the
parties were of course out of court, and consequently not in a situation to
plead. But it sometimes happened, that after a plea had been pleaded, and while
the parties were out of court, in consequence of such continuance, a new matter
of defence arose, which did not exist, and which the defendant had consequently
no opportunity to plead, before the last continuance. This new defence he was
therefore entitled, at the day given for his reappearance, to plead as a matter
that had happened after the last continuance, puis darrein continuance. In the
same cases that occasioned a continuance in the ancient common Iaw, but in no
other, a continuance shall take place. At the time indeed, when the pleadings
are filed and delivered, no record exists, and there is, therefore, no entry at
that time, made on the record, of the award of a continuance; but the parties
are, from the day when, by the ancient practice, a continuance would have been
entered, supposed to be out of court, and the pleading is suspended, till the
day arrives to which, by the ancient, practice, the continuance would extend.
At that day, the defendant is entitled, if any new matter of defence has arisen
in the interval, to plead it according to the ancient plan, puis darrein
35. A plea puis darrein continuance is not a departure from, but is a
waiver of the first plea, and is always headed by way of substitution for it,
on which no proceeding is afterwards had. 1 Salk. 178; 2 Stran. 1195 Hob. 81; 4
Serg. & Rawle, 239. Great certainty is requisite in pleas of this
description. Doct. Pl. 297; Yelv. 141; Cro. Jac. 261; Freem. 112; 2 Lutw. 1143;
2 Salk. 519; 2 Wils. 139; Co. Entr. 517 b. It is not sufficient to say
generally that after the last continuance such a thing happened, but the day of
the continuance must be shown, and also the time and place must be alleged
where the matter of defence arose. Id. ibid.; Bull. N. P. 309.
36. Pleas puis darrein continuance are either in bar or abatement; Com.
Dig. Abatement, I 24; and are followed, like other pleas, by a replication and
other pleadings, till issue is attained upon them such pleas must be verified
on oath before they are allowed. 2 Smith's R. 396; Freem. 352; 1 Strange, 493.
37. A sham plea is one which is known to the pleader to be false, and is
entered for the purpose of delay. There are certain pleas of this kind, which,
in consequence of their having been long and frequently used in practice, have
obtained toleration from the courts; and, though discouraged, are tacitly
allowed; as, for example, the common plea of judgment recovered, that is, that
judgment has been already recovered by the plaintiff, for the same cause of
action. Steph. on Pleading, 444, 445; 1 Chit. Pl. 505, 506.
38. Plea in suspension of the action. Such a plea is one which shows
some ground for not proceeding in the suit at the present period, and prays
that the pleading may be stayed, until that ground be removed. The number of
these pleas is small. Among them is that which is founded on the nonage of the
parties, and termed parol demurrer. Stephen on Pleading, 64. See, generally,
Bac. Abr. Pleas, Q; Com. Dig. Abatement, I 24, 34; Doct, Pl. 297; Bull. N. P.
309; Lawes Civ. Pl. 173; 1 Chit. Pl. 634,; Steph. Pl. 81; Bouv. Inst. Index, h.
TO PLEAD. The formal entry of the defendant's defence on the
record. In a popular sense, it signifies the argument in a cause, but it is not
so used by the profession. Steph. Pl. Appex. note I; Story, Eq. Pl. §5,
PLEADING, practice. The statement in a logical, and legal form,
of the facts which constitute the plaintiff's cause of action, or the
defendant's ground of defence; it is the formal mode of alleging that on the
record, which would be the support, or the defence of the party in evidence. 8
T. R. 159; Dougl. 278; Com. Dig. Pleader, A; Bac. Abr. Pleas and Pleading;
Cowp. 682-3. Or in the language of Lord Coke, good pleading consists in good
matter pleaded in good form, in apt time, and due order. Co. Lit. 303. In a
general sense, it is that which either party to a suit at law alleges for
himself in a court, with respect to the subject-matter of the cause, and the
mode in which it is carried on, including the demand which is made by the
plaintiff; but in strictness, it is no more than setting forth those facts or
arguments which show the justice or legal sufficiency of the plaintiff's
demand, and the defendant's defence, without including the statement of the
demand itself, which is contained in the declaration or count. Bac. Abr. Pleas
2. The science of pleading was designed only to render the facts of each
party's case plain and intelligible, and to bring the matter in dispute between
them to judgment. Steph. Pl. 1. It is, as has been well observed, admirably
calculated for analyzing a cause, and extracting, like the roots of an
equation, the true points in dispute; and referring them with all imaginable
simplicity, to the court and jury. 1 Hale's C. L. 301, n
3. The parts of pleading have been considered as arrangeable under two
heads; first, the regular, or those which occur, in the ordinary course of a
suit; and secondly, the irregular, or collateral, being those which are
occasioned by mistakes in the pleadings on either side.
4. The regular parts are, 1st. The declaration or count. 2d. The plea,
which is either to the jurisdiction of the court, or suspending the action, a's
in the case of a parol demurrer, or in abatement, or in bar of the action, or
in replevin, an avowry or cognizance. 3d . The replication, and, in case of an
evasive plea, a new assignment, or in replevin the plea in bar to the avowry or
cognizance. 4th. The rejoinder, or, in replevin, the replication to the plea in
bar. 5th. The sur-rejoinder, being in replevin, the rejoinder. 6th. The
rebutter. 7th. The sur-rebutter. Vin. Abr. Pleas and Pleading, C; Bac. Abr.
Pleas and Pleadings, A. 8th. Pleas puis darrein continuance, when the matter of
defence arises pending the suit.
6. The irregular or collateral parts of Pleading are stated to be, 1st.
Demurrers to Illly art of the pleadings above mentioned. 2dly. Demurrers to
evidence given at trials. 3dly. Bills of exceptions. 4thly. Pleas in scire
facias. And, 5thly. Pleas in error. Vin. Abr. Pleas and Pleadings, C.; Bouv.
Inst. Index, h. t.
PLEADING, SPECIAL. By special pleading is meant the allegation
of special or new matter, as distinguished from a direct denial of matter
previously alleged on the opposite side. Gould on Pl. c. 1, s. 18.
PLEAS OF THE CROWN, Eng. law. This phrase is now employed to
signify criminal causes in which the king is a party. Formerly it signified
royal causes for offences of a greater magnitude than mere misdemeanors. These
were left to be tried in the courts of the barons, whereas the greater
offences, or royal causes, were to be tried in the king's courts, under the
appellation of pleas of the crown. Robertson's Hist. of Charles V., vol. 1, p.
PLEAS POLL, Engl. practice. A record which contains the
declaration, plea, replication, rejoinder, and other pleadings, and the issue.
Eunom. Dial. 2, §29, p. 111.
PLEBEIAN. One who is classed among the common people, as
distinguished from the nobles. Happily in this country the order of nobles does
PLEBEIANS. One of the divisions of the people in ancient Rome;
that class which was composed of those who were not nobles nor slaves. Vide
Smith's Dic. Gr. & Rom. Antiq. art. Plebes.
PLEBISCIT, civil law. This is an anglicised word from the Latin
plebiscitum, which is composed or derived from plebs and scire, and signifies,
to establish or ordain.
2. A plebiscit was a law which the people, separated from the senators
and the patricians, made on the requisition of one of their magistrates, that
is, a tribune. Inst. 1, 2, 4.
PLEDGE or PAWN, contracts. These words seem indifferently used
to convey the same idea. Story on Bailm. §286.
2. In the civil code of Louisiana, however, they appear not to have
exactly the same meaning. It is there said that pledges are of two kinds,
namely, the pawn, and the antichresis. Louis'. Code, art. 3101.
3. Sir William Jones defines a pledge to be a bailment of goods by a
debtor to his creditor, to be kept till the debt is discharged. Jones' Bailm.
117; Id. 36. Chancellor Kent, 2 Kent's Com. 449, follows the same definition,
and see 1 Dane's Abr. c. 17, art. 4. Pothier, De Nantissement, art. prelim. 1,
defines it to be a contract by which a debtor gives to his creditor a thing to
detain as security for his debt. The code Napoleon has adopted this definition,
Code Civ. art. 2071, and the Civil Code of Louisiana has followed it. Louis.
Code, 3100. Lord Holt's definition is, when goods or chattels are delivered to
another as a pawn, to be security for money borrowed of him by the bailor - and
this, he adds, is called in Latin vadium, and in English, a pawn or pledge. Ld.
Raym. 909, 913.
4. The foregoing definitions are sufficiently descriptive of the nature
of a pawn or pledge but they are in terms limited to cues where a thing is
given as a security for a debt; but a pawn may well be made as security for any
other engagement. 2 Bulst. 306; Pothier, De Nantissement, n. 11. The definition
of Domat is, therefore, more accurate, because it is more comprehensive,
namely, that it is an appropriation of the thing given for the security of an
engagement. Domat, B. 3, tit. 1, §1, n. 1. And, according to Judge Story,
it may be defined to be a bailment of personal property, as security for some
debt or engagement. Story on Bailm. §286.
5. The term pledge or pawn is confined to personal property; and where
real or personal property is transferred by a conveyance of the title, as a
security, it is commonly denominated a mortgage.
6. A mortgage of goods is, in the common law, distinguishable from a
mere pawn. By a grant or a conveyance of goods in gage or mortgage, the whole
legal title passes conditionally to the mortgagee; and if not redeemed at the
time stipulated, the title becomes absolute at law, though equity will
interfere to compel a redemption. But in a pledge a special property only
passes to the pledges, the general property remaining in the pledger. 1 Atk.
167; 6 East, 25; 2 Caines' C. Err. 200; 1 Pick. 889; 1 Pet. S. C. B. 449 2
Pick. R. 610; 5 Pick. R. 60; 8. Pick. R. 236; 9 Greenl. R. 82; 2 N. H. Rep. 13;
5 N. H. Rep. 545; 5 John. R. 258; 8 John. R. 97; 10 John. R. 471; 2 Hall, R.
63; 6 Mass. R. 425; 15 Mass. R. 480. A mortgage may be without possession, but
a pledge cannot be without possession. 5 Pick. 59, 60; and see 2 Pick. 607.
7. Things which are the subject of pledge or pawn are ordinarily goods
and chattels; but money, negotiable instruments, choses in action, and indeed
any other valuable thing of a personal nature, such as patent-rights and
manuscripts, may, by the common law, be delivered in pledge. 10 Johns. R. 471,
475; 12 Johns. R. 146; 10 Jonhs. R. 389; 2 Blackf. R. 198; 7 Greenl. R. 28; 2
Taunt. R. 268; 13 Mass. 105; 15 Mass. 389; Id. 534; 2 Caines' C. Err. 200; 1
Dane's Abr. ch. 17, art. 4, § ii. See Louis. Code, art. 3121.
8. It is of the essence of the contract, that there should be an actual
delivery of the thing. 6 Mass. 422; 15 Mass. 477 14 Mass. 352; 2 Caines' C.
Err. 200; 2 Kent's Com. 452; Bac. Abr. Bailment, B; 2 Rolle R. 439; 6 Pick. R.
59, 60; Pothier, De Nantissement, n. 8, 9; Louis. Code, 3129. What will amount
to a delivery, is matter of law. See Delivery.
9. It is essential that the thing should be delivered as a security for
some debt or engagement. Story on Bailm. §300. And see 3 Cranch, 73; 7
Cranch, 34; 2 John. Ch. R. 309; 1 Atk. 236; Prec. in Ch. 419; 2 Vern. 691;
Gilb. Eq. R. 104; 6 Mass. 339; Pothier, Nantissement, n. 12; Civ. Code of Lo.
art. 3119; Code Civ. art. 2076.
10. In virtue of the pawn the pawnee acquires, by the common law, a
special property in the thing, and is entitied to the possession of it
exclusively, during the time and for the objects for which it is pledged. 2 Bl.
Com. 396; Jones' Bailm. 80; Owen R. 123, 124; 1 Bulst. 29; Yelv. 178 Cro. Jac.
244; 2 Ld. Raym. 909, 916; Bac. Abr. Bailment, B; 1 Dane's Abr. ch. 17, art. 4,
SSSS 1, 6; Code Civ. art. 2082; Civ. Code of Lo. art. 3131. And he has a right
to sell the pledge, when there has been a default in the pledger in complying
with his engagement. Such a default does not divest the general property of the
pawner, but still leaves him a right of redemption. But if the, pledge is not
redeemed within the stipulated time, by a due performance of the contract for
which it is a security, the pawnee has then a right to sell it, in order to
have his debt or indemnity. And if there is no stipulated time for the payment
of the debt, but the pledge is for an indefinite period, the pawnee has a
right, upon request, to a prompt fulfilment of the agreement; and if the pawner
refuses to comply, the pawnee may, upon demand and notice to the pawner,
require the pawn to be sold. 2 Kent's Com. 452; Story on Bailm. 308.
11. The pawnee is bound to use ordinary diligence in keeping the pawn,
and consequently is liable for ordinary neglect in keeping it. Jones'-Bailm.
75; 2 Kent's Com. 451; 1 Dane's Abr. ch. 17, art. 12; 2 Ld. Raym, 909, 916;
Domat B 1, tit. 1, §4, n. 1.
12. The pawner has the right of redemption. If the pledge is conveyed by
way of mortgage, and thus passes the legal title, unless he redeems the pledge
at a stipulated time, the title of the pledge becomes absolute at law; and the
pledger has no remedy at law, but only a remedy in equity to redeem. 2 Ves. Jr.
378; 2 Caines' C. Err. 200. If, however, the transaction is not a transfer of
ownership, but a mere pledge, as the pledger has never parted with the general
title, he may, at law, redeem, notwithstanding he has not strictly complied
with the condition of his contract. Com. Dig. Mortgage, B; 1 Pow. on Mortg. by
Coventry & Land. 401, and notes, ibid. See further, as to the pawner's
right of redemption, Story on Bailm. §§345 to 349.
13. By the act of pawning, the pawner enters into an implied agreement
or warranty that he is the owner of the property pawned, and that he has a good
right to pass the title. Story on Bailm. §354.
14. As to the manner of extinguishing the contract of pledge or mortgage
of personal property, see Story on Bailm. 359 to 366.
PLEDGE, contracts. He who becomes security for another, and, in
this sense, every one who becomes bail for another is a pledge. 4 Inst. 180
Com. Dig. B. See Pledges.
PLEDGER. The same as pawner. (q. v.)
PLEDGEE. The same as pawnee. (q. v.)
PLEDGES, pleading. It was anciently necessary to find pledges or
sureties to prosecute a suit, and the names of the pledges were added at the
foot of the declaration; but in the course of time it became unnecessary to
find such pledges because the plaintiff was no longer liable to be amerced, pro
falsa clamora, and the pledges were merely nominal persons, and now John Doe
and Richard Roe are the universal pledges; but they may be omitted altogether;
1 Tidd's. Pr. 455; Arch. Civ. Pl. 171; or inserted at any time before judgment.
4 John. 190.
PLEGIIS ACQUIETANDIS, WRIT DE. The name of an ancient writ in
the English law, which lies where a man becomes pledge or surety for another to
pay a certain sum of money at a certain day; after the day, if the debtor does
not pay the debt, and the. surety be compelled to pay, he shall have this writ
to compel the debtor to pay the same. F. N. B. 321.
PLENA PROBATIO. A term used in the civil law, to signify full
proof, in contradistinction to semi-plena probatio, which is only a
presumption. Code, 4, 19, 5, &c. 1 Greenl. Ev. §119.
PLENARTY, eccl. law. Signifies that a benefice is full. Vide
PLENARY. Full, complete.
2. In the courts of admiralty, and in the English ecclesiastical courts,
causes or suits in respect of the different course of proceeding in each, are
termed plenary or summary. Plenary, or full and formal suits, are those in
which the proceedings must be full and formal: the term summary is applied to
those causes where the proceedings are more succinct and less formal. Law's
Oughton, 41; 2 Chit. Pr. 481.
PLENE ADMINISTRAVIT, pleading. A plea in bar entered by an
executor or administrator by which he affirms that he had not in his possession
at the time of the commencement of the suit, nor has had at any time since any
goods of the deceased to be administered; when the plaintiff replies that the
defendant had goods, &c., in his possession at that time, and the parties
join issue, the burden of the proof will be on the plaintiff. Vide 15 John. R.
323; 6 T. R. 10; 1 Barn. & Ald. 254; 11 Vin. Ab. 349; 12 Vin. Ab. 185; 2
Phil. Ev. 295; 3 Saund. (a) 315, n. 1; 6 Com. Dig. 311.
PLENE ADMINISTRAVIT PRAETERt. This is the usual plea of plene
administravit, except that the defendant admits a certain amount of assets in
PLENE COMPUTAVIT, pleading. A plea in an action of account
render, by which the defendant avers that he has fully accounted. Bac. Ab.
Accompt, E. This plea does not admit the liability of the defendant to account.
15 S. & R. 153.
PLENIPOTENTIARY. Possessing full powers; as, a minister
plenipotentiary, is one authorized fully to settle the matters connected with
his mission, subject however to the ratification of the government by which he
is authorized. Vide Minister.
PLENUM DOMINIUM. The unlimited right which the owner has to use
his property as he deems proper, without accountability to any one.
PLOUGH-BOTE. An allowance made to a rural tenant, of wood
sufficient for ploughs, harrows, carts, and other instruments of hushandry.
PLOUGH-LAND, old Eng. law. An uncertain quantity of land; but,
according to some opinions, it contains one hundred and twenty acres. Co. Litt.
TO PLUNDER. The capture of personal property on land by a public
enemy, with a view of making it his own. The property so captured is called
plunder. See Booty; Piize.
PLUNDERAGE, mar. law. The embezzlement of goods on board of a
ship, is known by the name of plunderage.
2. The rule of the maritime law in such cases is, that the whole crew
shall be responsible for the property thus embezzled, because there must be
some negligence in finding out the depredator. Abbott on Ship. 457; 3 John.
Rep. 17; 1 Pet. Adm. Dee. 243; 1 New Rep. 347; 1 Pet. Adm. Dee. 200, 239.
PLURAL. A term used in grammar, which signifies more than one.
2. Sometimes, however, it may be so expressed that it means only one,
as, if a man were to devise to another all he was worth, if he, the testator,
died without children, and he died leaving one child, the devise would not take
effect. See Dig. 50, 16, 148; Id. 35, 1, 101, 1; Id. 3 1, 17, 4 Code, 6, 49, 6,
2; Shelf. on L 559, 589. See Singular.
PLURALITY, government. The greater number of votes given at an
election; it is distinguished from a majority, (q. v.) which is a plurality of
all the votes which might have been given; though in common parlance majority
is used in the sense here given to plurality.
PLURIES, practice. A term by which a writ issued subsequently to
an alias of the same kind, is denominated.
2. The pluries writ is made by adding after we command you, the words, "
as often times we have commanded you." This is called the first pluries, the
next is called the second pluries, &c.;
POINDING, Scotch. law. That diligence, affecting movable
subjects, by which their property is carried directly to, the creditor.
Poinding is real or personal. Ersk. Pr. L. Scot. 3, 6, 11.
POINDING, PERSONAL, Scotch law. Poinding of the goods belonging
to the debtor; and of those goods only.
2. It may have for its warrant either letters of horning, containing a
clause for poinding, and then it is executed by messengers; or precepts of
poinding, granted by sheriffs, commissaries, &c., which are executed by
their proper officers. No cattle pertaining to the plough, nor instruments of
tillage, can be poinded in the time of laboring or tilling the ground, unless
where the debtor, has no other goods that may be poinded. Ersk. Pr. L. Soot. 3,
6, 11. See Distress, to which this process is somewhat similar.
POINDING, REAL, or poinding of the ground, Scotch law. Though it
be properly a diligence, this is generally considered by lawyers as a species
of real action, and is so called to distinguish it from personal poinding,
which is founded merely on an obligation to pay.
2. Every debitum fundi, whether legal or conventional, is a foundation
for this action. It is therefore competent to all creditors in debts which make
a real burden on lands. As it proceeds on a, real right, it may be directed
against all goods that can be found on the lands burdened but, 1. Goods brought
upon the ground by strangers are not subject to this diligence. 2. Even the
goods of a tenant cannot be poinded for more than his term's rent, Ersk. Pr. L.
Scot. 4, 1, 3.
POINT, practice. A proposition or question arising in a case.