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PRAYER OF PROCESS. A prayer or PRE-EMPTION-continued. petition with which a bill in Equity used in the conveyance of timber, baggage, and to conclude, to the effect that a writ of
the like. This prerogative of the Crown subpoena might issue against the defen
appears to have been made the occasion of dant to compel him to answer upon oath much abuse in the early reigns, as one of all the matters cbarged against him in the the chief constitutional struggles of the bill.
period was the restriction and regulation See title SUBPENA,
of this right. PREAMBLE OF A STATUTE. The PREFER, TO. To bring before, to introducing clause or section of a statute prosecute, to try, to proceed with. Thus, is so termed. It usually recites the objects preferring an indictment signifies pro. and intentions of the Legislature in passing secuting or trying an indictment. the statute, and frequently points out the evils or grievances which it was the object
PREGNANCY, PLEA OF, A plea which of the Legislature to remedy. Although
a woman capitally convicted may plead in the preamble is generally a key to the
stay of execution; for this, though it is no construction, yet it does not always open
stay of judgment, yet operates as a respite or disclose all the parts of it; as some
of execution until she is delivered. times the Legislature, having a particular PREMISES. Matter previously stated mischief in view, which was the primary or set forth is frequently so termed. In a object of the statute, merely state this in deed, the premises comprise all that portion the preamble, and then go on in the body
which precedes the habendum, i. e., the of the Act to provide a remedy for general
date, the parties' names and descriptions, mischiefs of the same kind, but of different
the recitals, the consideration and the species, neither expressed in the preamble, receipt thereof, the grant, the description nor perhaps then contemplated by the of the things granted, and the exceptions framer thereof (Mann v. Cammel, Loft.
(4 Cr. Dig. 26). So, in pleading, the word 783). A reference to the preamble is there- is used, in its logical sense, as signifying fore only an insufficient guide to the true foregoing statements or previously-meninterpretation of the statute.
tioned facts. Thus, in a declaration in PRE-AUDIENCE.
, the plaintiff, after The precedence of
alleging that the defendant was indebted being heard, which prevails at the Bar
to him in a given sum of money, proceeded according to the rank which the counsel
to state that, in consideration of the premises, respectively hold. In the Court of Ex
the defendant promised to pay him the same. chequer there are two barristers appointed
So, again, in a declaration for the diversion by the Lord Chief Baron, called the post
of water from a water-course, the plaintitf, man and the tub-man (from the places in
after stating liis right to the enjoyment which they sit), who take precedence in
of the water, and his previous user of the motions.
same, and setting forth the fact and the PREBEND. The rents and profits (præ
nature of the diversion, then proceeds to benda) belonging to a cathedral church, point out the injurious consequences which or the endowment in land or money given
have flowed from the previously-stated to it for the maintenance of the dean, facts, in the following manner: “And the chapter, and spiritual officers connected plaintiff, by reason of the premises, hath therewith. A prebendary, vulgarly called
been deprived of the use, benefit, and ada prebend, is one of this ecclesiastical body vantage of the water of the said waterwho are so maintained. Cowel.
The common use of the word“ premises," PREBENDARY (prebendarius): See title
as in the phrase "eligible premises,” is an PREBEND.
abusive use of the word, derived apparently PRECEDENT CONDITION: See title from the frequency with which the word is CONDITIONS.
used in conveyances and leases of lands
and houses. PRE-EMPTION (præ emption). The prerogative of purveyance, or pre-emption, PREROGATIVE (from præ, before or was a right enjoyed by the Crown of buying above, and rogo, to ask or demand). up provisions and other necessaries by the prerogative is meant some exclusive preintervention of the king's purveyors, for eminent power or right. Thus, the king's the use of his royal household, at an ap- prerogative is usually understood to be praised valuation, in preference to all that special pre-eminence which the king others, and even without consent of the has over and above all other persons,
and owners; and also of forcibly impressing out of the ordinary course of the Common the carriages and horses of the subject to Law, in right of his regal dignity. Thus, do the king's business on the public roads, the power of making war or peace, of
PRESENTATION (presentatio). The act making treaties, leagues, and alliances of a patron or proprietor of a living offerwith foreign states and princes; of ap
ing or presenting a clerk to the ordinary. pointing ports and havens, or such places
This is done by a kind of letter from the only for persons and merchandize to pass
patron to the bishop of the diocese in into and out of the realm as he in his which the benefice is situated, requesting wisdom sees proper, are all instances of the him to admit to the church the person king's prerogative. The greater part of presented. 3 Cruise, 14. early constitutional history consists in the
See also title NOMINATION, struggles of Parliament to restrain the
PRESENTATIVE ADVOWSON: See title royal prerogative (see title CONSTITUTION, Advowson. GROWTH OF). And at the present day the
PRESENTEE. law regarding the prerogative exhibits ex
He who is presented to actly the reverse peculiarity, viz., that the
a living by the patron thereof. Crown may not of its own authority PRESENTMENT. This word has varidiminish its prerogative, although with ous significations. In its relation to the authority of parliament it may do so criminal matters it signifies the notice (Ex parte Eduljee Byramjee, 5 Moo. P. C. taken by a grand jury of any offence from Č. 276). And generally the sovereign may their own knowledge or observation, witu. not exercise his prerogative in contrariety out any bill of indictment laid before them to the Common Law; and although be may at the suit of the king; as the presentment by his prerogative establish Courts to pro- of a nuisance, a libel and the like; upon ceed according to the Common Law, he which the officer of the Court must aftercannot create any new Court to administer wards frame an indictment before the any other law, In re Natal (Bishop), party presented can be put to answer it. 3 Moo. P. C. C. (N.S.) 115.
The word, as used in reference to admis.
sions to copyholds, signifies an information PREROGATIVE COURT: See title COURTS
made by the homage or jury of a Court ECCLESIASTICAL, s. 5.
Baron to the lord, by way of instruction, to PREROGATIVE LAW. That part of
give the lord notice of the surrender and of the Common Law of England which is
what has been transacted out of Court more particularly applicable to the king. (5 Cruise, 502). But the necessity of the Com. Dig. tit. “Ley.” (A).
latter presentment has been abolished by
4 & 5 Vict. c. 35. PRESCRIBE, TO. To assert a right or See title COPYHOLDS. title to the enjoyment of a thing on the ground of having hitherto had the unin
PRESS, LIBERTY OF. Upon the art terrupted and immemorial enjoyment of it.
of printing becoming general, the press See title PRESCRIPTION.
was subjected to a rigorous censorship, first
on the part of the Church, and latterly on PRESCRIPTION (præscriptio). A title the part of the State. Thus, in the reign which a person acquires to incorporeal of Elizabeth, printing was interdicted, save hereditaments by long and continued pos- in London, Oxford, and Cambridge. In session. Every species of prescription by the reign of James I, the first newspaper which property is acquired or lost is was attempted to be printed, but that king founded on this presumption, that he who and his successor endeavoured to silence has had a quiet and uninterrupted posses- the same by means of the Star Chamber sion of anything for a long period of years jurisdiction. In 1641, when the Star is supposed to have a just right, without Chamber was abolished, newspapers prowhich he could not have been suffered to mised to become more abundant, especially continue in the enjoyment of it. This as the mind of the nation was at that time mode of acquisition was well known in the in a very active and even excited state; Roman Law by the name of usucaptio, but the Long Parliament by various ordibecause a person who acquired a title in nances endeavoured to restrain printing, at this manner might be said usu rem capere. least on the part of the Royalist and PreBefore the Act of 2 & 3 Will. 4, c. 71, the latical party. This conduct on the part of possession required to constitute a pre- the Long Parliament was the occasion of scription must have existed time out of Milton's treatise, entitled “ Areopagitica, A mind, or beyond the memory of man, as it Speech for Liberty of Unlicensed Printis also termed, that is, before the reign of ing." Upon the Restoration, in 1660, the Richard I.; but now, the period of posses- Licensing Act (13 & 14 Car. 2, c. 33) was sion necessary to constitute a title by pre- passed, which placed printing under the scription is in many cases by the above Act control of the Government, and in particoconsiderably shortened.
lar confined the trade to London, York, See titles COMMONS; EAEEMENTS ; PRO- Oxford, and Cambridge, limiting also the FITS À PRENDRE.
number of master printers to twenty;
PRESS, LIBERTY OF-continued. moreover, it imposed the severest and most degrading punishments on offenders against the Act. The Licensing Act expired in 1695, after various periods of renewal, and was not again re-enacted, it having been the opinion of Scroggs, O.J., and of the twelve other Common Law judges, that the Common Law was sufficient of itself, and without any statute to repress the publication of any matter without the king's licence, and the liberal opinions which sprung up after the Revolution of 1688, preferring to entrust the control of the press to the ordinary jurisdictions at Common Law.
From this date newspapers rapidly increased, and in the reign of Anne began to be published regularly, and some even daily; and in that reign they began for the first time to combine political discussion with matters of intelligence, and were subject only to the two following restraints : (1.) The stamp duty on newspapers,
which was imposed for the first
time in 1712; and (2.) The law of libel.
These two restraints have been since gradually removed or relaxed: thus,
(1.) The tax upon newspapers, which was 4d, in the reign of Anne, was reduced to ld. in 1836, and was repealed altogether in 1855, and ultimately, in 1861, the duty upon paper also was repealed.
(2.) The law of libel' was at first extremely severe, any reflection upon the Government, or upon ministers, being construed into a reflection upon the king himself, and therefore as a seditious libel. This state of the law of libel was rendered all the worse by reason of the then doctrine of the Common Law, that the jury could only find the particular fact of publication, and not a general verdict of libel or no libel, that matter being left to the judges, who (as being the servants of the Crown) were naturally suspected of being disposed towards the Crown. And although in the Case of the Seven Bishops (1687), the jury brought in a general verdict of no libel, yet that precedent was insufficient of itself to change the law, more especially as it was given in bad times. It was left to Mr. Erskine, in the Cuse of the Dean of St. Asaph (1778), to advocate the right of the jury in actions of libel to find a general verdict, and to Mr. Fox, in his Libel Act, 1792, to confer that right upon the jury. By a later Act (6 & 7 Vict. c. 96), it was for the first time rendered competent to a defendant to plead in defence or justification the truth of the matters published, and that the same were so published for the public good.
PRESUMPTION (presumptio), That which is presumed or believed in the absence of any direct evidence to the contrary. A presumption, or that which is presumed, has been denominated a violent, a probable, or a light presumption, according to the amount of weight which attaches to it. Thus, if a landlord sues for rent due at Michaelmas, 1754, and the tenant cannot prove the payment, but produces an acquittance for rent due at a subsequent time, in full of all demands, this is a violent or strong presumption of his having paid the former rent, and is equivalent to full proof. Again, if in a suit for rent due in 1754, the tenant proves the payment of his rent due in 1755, this is a probable presumption that the rent of 1754 was paid also. Again, such presumptions as are drawn from inadequate grounds are termed light or rash presumptions. Presumptions are also commonly divided into (1.) Præsumptions juris et de jure, and (2.) Præsumptions juris tantum, the former class being considered irrebuttable, and the latter rebuttable, by contrary evidence.
See also title EVIDENCE. PRÊT, in French Law is a loan, and may be either (a.) Prêt à usage, corresponding to the commodatum of Roman Law (see that title), or (6.) Prêt de consummation, corresponding to the mutuum of Roman Law (see that title).
PRICKING FOR SHERIFFS used to be the method of electing the sheriff's of the different counties of England. Originally the sheriff's were chosen by the people in their folkmote or county court; but these popular elections growing tumultuous, and the Crown also seeking to augment its influence in Parliament, they were put an end to by 9 Edw. 2, stat. 2, and it was enacted that the sheriffs should be assigned by the Chancellor, Treasurer, Barons of the Exchequer, and by the justices, and in the absence of the Chancellor, by the others, without him ; and since the time of Henry VI. it became the custom for these, or some of these, distinguished and learned persons, to meet in the Exchequer Chamber on the morrow of All Souls yearly (which day was latterly altered to the morrow of St. Martin by the Act for abbreviating Michaelmas Terin (24 Geo. 2, c. 48, s. 12), and then and there to propose three persons to the king (or queen), who afterwards appointed one of them to be the sheritt, and this was done by marking each name with the prick of a pin, and for that reason this particular election was generally termed pricking for sheriffs.
PRIMAGE. A small payment made to
PRIMAGE-continued. the master of a vessel for his personal care and trouble, which he is to receive in addition to his wages or salary, to his own use, unless he has otherwise agreed with his employers. This payment is that intended in the plirase “with primage and average accustomed.” It appears to be of very ancient date; and in the old books is sometimes called “hat money," and also “la contribution des chausse8, ou pot de vin du maitre.” Abbot on Shipping by Shee, 404; Maude & Poll. Merch. Ship. 88. Kay's Law of Shipmasters.
PRIMATE OF ALL ENGLAND. An ecclesiastical title belonging to the Archbishop of Canterbury, who is styled “ Primate of all England and Metropolitan.” Anciently, indeed, he had primary jurisdiction, not only over all England, but in Ireland too; and it was from him that the Irish bishops received consecration; for Ireland had no other archbishop till the year 1152, and the Archbishop of Canterbury was then denominated “ Orbis Britannici Pontifex." But for a long period, up to a recent date, Ireland had four archbishops, one for each of the four provinces of Armagh, Dublin, Cashel, and Tuam, all of whom were distinguished by the title of primate; but by the recent stats. of 3 & 4 Will. 4, c. 37, and 4 & 5 Will. 4, c. 90, the number was diminished to two, the two others being reduced to the rank of bishops.
And by a still more recent Act (32 & 33 Vict. c. 42), the entire English hierarchy in Ireland has been abolished. The Archbishop of York is sometimes styled Primate of England. See Burns' Eccl. Law, by Phillimore.
PRIMER FINE. On the levying of a fine when the writ of covenant was sued out, there was due to the king by ancient prerogative a sum of money called priner fine, being a noble for every five marks of land sued for. It was so called because there was another fine payable afterwards, which was termed the post fine.
See also title FINE. PRIMER SEISIN (prima seisina). During the feudal tenures, when any of the king's tenants in capite died seised of lands or tenements, the Crown was entitled to receive of the heir, if he were of full age, a sum of money amounting to one whole year's profits of the lands, which was termed primer seisin, i.e., first possession. 1 Cruise, 31; 2 Inst. 134.
PRIMOGENITURE. The right of the eldest son to inherit his ancestor's estates to the exclusion of the younger sons; or, as the canon of descent has it," that where
PRIMOGENITURE-continued. there are two or more males, in equal degree, the oldest only shall inherit (Litt. sec. 5). The law of primogeniture became generally established in England in the reign of Henry III., in which reign also the lineal descent of the Crown to the infant issue of an elder brother in preference to a younger brother of full age was established. The county of Kent is still an exception, theoretically at least, to the law of primogeniture.
See title DESCENTS. PRINCIPAL AND ACCESSORY. А criminal offender is either a principal or an accessory; a principal is either the actor, i.e., the actual perpetrator of the crime, or else is present, aiding and abetting the fact to be done; an accessory is he who is not the chief actor in the offence, nor yet present at its performance, but is someway concerned therein, either before or after the fact committed. An accessory before the fact is he who, being absent at the time of the commission of a felony, procures, counsels, or commands the principal felon to commit it; as if several plan a theft, which one is to execute; or if a person incites a servant to embezzle the goods of his master. An accessory after the fact is one who, knowing a felony to have been committed, receives, harbours, relieves, comforts, or assists the principal or accessory before the fact with a view to his escape. 1 Hale, 613, 618.
See also titles ACCESSOIES; AIDERS
AND ABETTORS. PRINCIPAL AND AGENT. The English Law adopts the maxim, that what a man does through another person he does for himself (qui facit per alium facit per se), and as a rule (but subject to a few erceptions, chiefly statutory) what a man may do by himself he may also do by another acting for him; but the converso does not hold, that what he cannot do for himself, he cannot do for another, for infants and married women, although they cannot bind themselves, may be agents so as to bind the principal who employs them.
Agents are either general or special; but in either case the authority of the agent is confined by his instructions, whether par. ticular or general, and the same rules of law apply to both.
These rules are principally the following :
(1.) Where an agent contracts within the scope of his authority he binds his principal; and if without that scope, then he does not bind the latter;
(2.) Where an agent contracts as principal he is personally liable;
(3.) But in case (2), if the principal is PRIVATE ACT OF PARLIAMENT-cont. of the realm are generally divided into public and private. The former being an universal rule that regards the community at large, and of which the Courts of Law are bound of themselves judicially to take notice; the latter being rather exceptions than rules, operating only upon particular persons and private concerns, and of these the judges need only take notice when expressly pleaded. Thus the statute 13 Eliz. c. 10, which prevents the master and fellows of any college, tho dean and chapter of a cathedral, or any other pers in having a spiritual living, from making leases for longer terms than twenty-one years or three lives, is a public Act, it being a rule prescribed to spiritual persons in general; but an Act to enable the Bishop of Chester to make a le ise to A. B for sixty years, which is otherwise beyond a bishop's power, concerns only the parties, and is, therefore, a private Act. 4 Rep. 13 a.; Ibid. 76 a.
See also next title.
PRINCIPAL AND AGENT-continued. known at the time of the contract to the other contracting party, who chooses there and then to debit the principal, the agent is not liable; and, on the other hand, if with the like knowledge he there and then debits the agent, the principal is not liable;
(4.) But if the principal is unknown at the time of the contract to the other contracting party, then, whether the agent represent himself or not as principal, the other contracting party may, upon discovering the principal, debit at his election either the principal or the agent;
(5.) Where, however, the principal is at fault in permitting his agent to act as apparent principal, and thereby the other contracting party is in luced to contract with him, the true principal, if he should afterwards intervene, will take subject to all rights or equities, e.g., by way of setoff, which the third party had against the apparent principal (George v. Clagett, 7 T. R. 359);
(6.) Where a person having no authority as an agent represents himself as agent, and in that self-assumed capacity enters into a contract, the other contracting party cannot charge the preteniled principal either upon the contract or at all; but he may charge the assuming agent, not indeed, up in the express contract, but upon an implied contract or warranty that he had authority to make the contract, and in that way he will make such agent liable for damages (Collen v. Wright); and
(7.) An agent who contracts in writing should describe himself both in the body of the instrument and in his signature to it, as agent merely for his principal, naming the latter in both places, otherwise Le may (in case of any ambiguity in the instrument) be held personally liable (Uumfrey v. Dale, 7 El. & Bl. 266; El. Bl. & El. 1001); and he will certainly be personally liable in such a case if he names a fictitious principal.
Agency is determined by death of either principal or agent; nor does the English Law admit of that equitable extension of the Roman Law, whereby a stranger cuntracting with the agent in ignorance of the principal's death was protected, and might recover.
Ilbery, 10 M. & W.1; Blades v. Free, 9 B. & C. 157.
PRINCIPAL AND SURETY: See title SURETY.
PRISONS: See titles EscaPE; RESCUE.
PRIVATE ACT OF PARLIAMENT. Is an Act affecting particular persons, as distinguished from a public Act, which concerns the whole nation. The statutes
PRIVATE BILLS. All parliamentary bills which have for their object some particular or private interest are so termeil, as distinguished from such as are for the benefit of the whole community, and which are thence termed public bills. The mo:ly in which Parliame:t procecils in the passing of public and private bills well illustrates their distinctive characters. In passing public bills, Parliament acts strictly in its legislative capacity; it originates the measures which appear for the public good; it conducts inquiries, when necessary, for its own information, and enacts laws according to its own wisdom and judgment. The furms in which its deliberations are conducted are established for its own convenience; and all its proceedings are independent of individual parties, who may petition indeed, and are sometimes heard by counsel ; but who have no direct participation in the conduct of the business, nor immediate influence upon the judyment of Parliament. In passing private bills, the Parliament still exercises its legislative functions, but its proceedings partake also of a judicial character. The persons whose private interests are to be promoted appear as suitors; while those who apprehend injury are admitted as adverse parties in the suit. All the formalities of a Court of justice are maintained ; various conditions are required to be observed, and their observance to be strictly proved ; and if the parties do not sustain the bill in its progress by following every regulation and form prescribed, it is not forwarded by the House in which it is pending; and if they abandon it, and no