Obrazy na stronie


PRIVILEGED COMMUNICATION. In other parties undertake its support, the

actions for libel or slander, one of the most bill is lost, however sensible the House common defences is that of privilege, or may be of its value. The analogy which

that the words spoken or written were a all these circumstances bear to the pro

privileged communication, The chief ceedings of a Court of justice is further grounds of privilege are the following:supported by the payment of fees, which is (1.) That the defendant was the master required of every party supporting or of the plaintiff, and spoke the words to opposing a private bill, or desiring or op

him while that relation was continuing posing any particular provisions. May's (Somerville v. Hawkins, 10 C. B. 583); Parl. Pract. 626.

(2.) That the defendant spoke or wrote

the words as part of a character which he PRIVATE CHAPELS: See title PRO

was requested to give of the plaintiff PRIETARY CHAPELS.

(Fountain v. Boodle, 3 Q. B. 11); PRIVATE WAY: See title Way and (3.) That the worls were a fair comtitle EASEMENT.

ment upon an author or speaker (Wason PRIVIES (from the Fr. priré, familiar,

v. Walter, L. R. 4 Q. B. 73); ani

(4.) That the defendant had a pecuintimate, &c.). Persons between whom some connection exists, arising from some

niary interest (direct or indirect) in the

business with reference to which the words mutual contract entered into with each other; as between donor and donee, lessor

were spoken, Cocheud y. Rickards, 2 C.

B. 569. and lessee; or else it signifies persons related by blood, as ancestor and heir, &c. PRIVILEGED DEBTS. Those debts And this connection which so arises or which an executor may pay in preference exists between persons is termed privity. to others; such as the funeral expenses, The word “ privy” is used with various ad- servants' wages, expenses of medical atjuncts, in order to express the nature of tendance incurred during the illness of the the privity or connection which exists deceased, &c. Also, in bankruptey probetween persons. Thus, persons related

ceedings under the Bankruptcy Act, 1869, by blood, as ancestor and heir for instance, the following classes of debts are priviare denominated privies in blood; those leged, i.e., entitled to priority of pay. related to a party by mere right of repre- ment;— sentation, as executors or administrators

(1.) Parochial, and other local rates ; of a deceased person, are denominated (2.) Assessed taxes; privies in representation, or in right; those (3.) Land tax; connected with each other in respect of (4.) Property or income tax up to the estate, as lessors and lessees, donors and

5th of April preceding. In each donees, &c., are denominated privies in

of these cases to the extent of estate. So also those who are in any way

one year's arrears only: related to the parties who levy a fine and (5.) Wages or salaries of clerks or serclaim under them, either by right of blood

vants, not exceeding four months' or otherwise, are denominated privies to a

arrears or £50; and fine; and the connection or relationship (6.) Wages of labourers and workmen, which in all such cases arises or exists

not exceeding two months' arbetween the parties is termed privity; so

rears. that between lessors and lessees, who are termed privies in estate, there also exists

PRIVITY OF CONTRACT. That conprivity of estate. 5 Cruise, 158; Les Termes nection or relationship which exists bede la Ley.

tween two or more contracting parties is so

termed. It is essential to the maintenance PRIVILEGE (privilegium). Sometimes used in law for a place which has some

of an action on any contract that there

should subsist a privity between the special immunity; and sounetimes for an

plaintiff and the defendant in respect of exemption from the rigour of the Common

the matter sued on: and the absence of Law. It is either real or personal. A real

such privity is fatal to the action (Baron privilege is that which is granted to a

v. Husband, 4 B. & Ad. 611). But in some place, a personal privilege that which is

cases, where an action of contract will not granted to a person. An instance of the former kind is the power granted to the

lie for want of privity, an action of tort universities to have Courts of their own;

(in which privity is not an essential) will

properly lie. Gerhard v. Bates, 2 El. & Bl. an instance of the latter kind is the

476. exemption of certain persons from being See title CONTRACTS. obliged to serve in certain offices, or to perform certain duties. Kitchen ; Cowel. PRIZE. Is booty seized on land or See also title PARLIAMENT.

captured at sea in times of war, The PRIZE-continued.

PROCEDENDO—continued. English Court of Admiralty has always Court to be proceeded with there, after it had jurisdiction in the matter of naval has appeared that the defendant had not captures; but until the stat. 3 & 4 Vict. c. good cause for removing it. Cowel; Les 65, s. 22, it had no jurisdiction in the Termes de la Ley. matter of land seizures, or booty. Banda and Kirvee Booty Case, Law Rep. 1 A. &

PROCEDURE. This word is commonly E. 109.

opposed to the sum of legal principles conPrize tribunals are a species of interna- stituting the substance of the law, and tional tribunals, their sentences being con

denotes the body of rules, whether of clusive evidence upon every matter within

practice or of pleading, whereby rights their respective jurisdictions (Bolton v. are effectuated through the successful Glaulstone, 5 East, 155); but nothing that application of the proper remedies. It is rests on mere inference from these sen- also generally distinguished from the Law tences is conclusive in the same manner of Evidence. The procedure of different (Fisher v. Ogle, i Camp. 418). The con

jurisdictions varies, that of the Courts of clusive effect of these sentences appears to

Common Law being in many respects arise from the fact that they are not given different from the procedure in the Courts in any litigation inter partes (the foreign of Equity; but under the Judicature Act, state having no locus standi in the Courts) 1873, and the rules made and to be made nor yet ex parte; but the sovereign state thereon, some attempt is made to ensure itself in which the Court is sitting is by

uniformity of procedure in these two means of its Court making an inquiry for

hitherto separate jurisdictions. The proitself, and adjudicating for itself only, and cedure in criminal cases also differs from the sovereign state is answerable to the that in civil ones, and is not affected by injured party (if any), who will either the Judicature Act, or the rules thereon. claim or recriminate through his own For the particular rules of procedure, the government

reader must consult the particular titles

contained in the Table of Contents under PROBATE (probatio). The copy of a the heads Practice and Pleading. will or testament made out in parchment under the seal formerly of the ordinary,

PROCESS. This word is generally deand now of the Court of Probate, and fined to be the means of compelling the usually delivered to the executor or ad- defendant in an action to appear in Court. ministrator of the deceased, together with

And when actions were commenced by a certificate of the will's having been

original writ, instead of, as at present, by proved, is commonly called the probate. writ of summons, the method of compelİt is sometimes used for the act of proving

ling the defendant to appear was by what a will. The meaning of proving a will was termed original process, being founded may be thus explained. An executor,

on the original writ, and so called also to before he is permitted to take a probate of distinguish it from mesne or intermediate the will, is obliged to swear, formerly process, which was some writ or process before the ordinary or his surrogate, and

which issued during the progress of the now before a registrar of the Court of suit. The word "process,' however, as now Probate, that the writing contains the true commonly understood, signifies those formal last will and testament of the deceased instruments called writs. The word “profar as he knows or believes, and that he cess ” is in Common Law practice frequently will truly perform the same by paying applied to the writ of summons, which is first the testator's debts, and then the the instrument now in use for commencing legacies therein contained, as far as the personal actions. The word “process, "howgoods, chattels, and credits of the deceased ever, in its more comprehensive significawill thereto extend, and the law charge tion, includes not only the writ of sumhim; and that he will make a true and mons, but all other writs which may be perfect inventory of all the goods, chattels, issued during the progress of an action. and credits, and exhibit the same into the Those writs which are used to carry the registry of the Court at the time assigned judgments of the Courts into effect, and by the Court, and render a just account which are termed writs of execution, are thereof when lawfully required ; and this also commonly denominated final process, is termed proving a will, Toller's Exe. because they usually issue at the end of a 58.

suit. Steph. on Plead. 21; Smith's AcSee also title PROVING A WILL.

tion at Law, 56; 1 Arch. Pract. 582. PROCEDENDO. A writ by which a PROCHEIN AMY (next friend). As an cause which has been removed from an infant cannot legally sue in his own name, inferior to a superior Court by certiorari or the suit or action must be brought by his otherwise, is sent down again to the same prochein amy, i.e., some friend who is will.


[ocr errors]
[ocr errors]

PROCHEIN AMY-continued. ing to take upon himself the trouble and responsibility. Co. Litt. 135 b., note; Cro. Car. 161.

See also title Next FRIEND. PROCLAMATION. A notice publicly made of anything: or a public declaration of the king's will made to his subjects. It was the opinion of Lord Coke, that proclamations, when grounded on the laws of the realm, were of great force; and of Blackstone, that proclamations were binding on the subject when they did not con. tradict the laws of the land, or tend to establish new ones; and they appear, in fact, to be a proper mode, if not of signifying, at any rate of enforcing, the law, and, as such, to be a necessary part of the executive, in proper cases. They have been used at all times by all classes of sovereigns, as well those who regarded the constitution as those who disregarded it. The stat. 31 Hen. 8, c. 8, gave to the king's proclamations in ecclesiastical matters the force of law; and, similarly, Orders in Council made in virtue of any like enabling statute have the force of law.

PROCLAMATION OF A FINE. The notice or proclamation which was made after the engrossment of a fine, and which consisted in its being openly read in Court sixteen times : viz. four times in the term in which it was made, and four times in each of the three succeeding terms; wliich, however, was afterwards reduced to one reading in each term.

PRO CONFESSO. When a defendant in a suit in Chancery will not put in his answer to the plaintitt’s bill, and the proper means have been resorted to, to compel him to do so, and yet he does it not, and will not do it, the plaintiff may proceed to have the bill taken against him pro confesso (i.e. as confessel), and to obtain a decree in the suit on the assumption that the defendant has confessed the truth of the bill: for by his not answering it, and remaining silent, it is assumed, reasonably enough, that he confesses the truth of its contents.

PROCTOR (procurator). An officer of the Ecclesiastical Courts, while these existed, and now of the Court of Probate, whose duties correspond with those of an attorney in the Common Law Courts; and in fact all such attorneys may, and commonly do, now act as proctors in the Court of Probate.

PROCURATION (procuratio). Indorsing a bill of exchange by procuration, is doing it as proxy for or by authority of another. Also, many contracts are entered into per

PROCURATION-continued. proc., as it is called ; in which case the agent should describe himself as such both in the body of the document and in his signature to it, otherwise he may be incurring a personal liability upon it.

See title PRINCIPAL AND AGENT. PROCURATOR. In its general signifi. cation means any one who has received a charge, duty, or trust for another. Thus the proxies of the Lords in Parliament are in our old books called procuratores ; so also a vicar or lieutenant was so called, and even the bishops were sometimes called procuratores ecclesiarum. From this term came the word “proctor," meaning one who acted for another in the Ecclesiastical Courts, the same as an attorney does for his client in the Common Law Courts. The word “ procurator” was also used for him who gathered the profits of a benefice for another man, and the word "procuracy for the writing or instrument which autho. rized the procurator to act. Cowel; Les Termes de la Ley,

PROCUREUR DU ROI, In French Law is a public prosecutor, with whom rests the initiation of all criminal proceedings. In the exercise of his office (which appears to include the apprehension of offenders), he is entitled to call to his assistance the public force (posse comitatus); and the officers of police are auxiliary to him.

PROCUREUR - GÉNÉRAL, OU IMPÉ RIAL. In French Law is an officer of the Imperial Court, who either personally, or by bis deputy, prosecutes every one who is accused of a crime according to the forms of French Law. His functions appear to be confined to preparing the case for trial at the assizes, assisting in that trial, demanding the sentence in case of a conviction, and being present at the delivery of the sentence. He has a general superintendence over the otticers of police and of the juges d'instruction, and he requires from the procureur du roi a general report once in every three months.

PROFERT IN CURIA (he prod:uces in Court): See title OYER OF DEEDS AND RECORDS.

PROFITS À PRENDRE Are rights of taking some portion of the substance or produce of lands, in which respect they are distinguished from easeinents, which are privileges without profit (see title EaseMENTS). They are to all intents and purposes mere rights of common, and their varieties are specified under that title.

PROHIBITION. A writ issuing properly out of the Court of King's Bench,

[ocr errors]

PROMISE-continued. inferred from his acts, conduct, or peculiar position. Thus, the law will always infer a promise by a debtor to pay a debt due to his creditor; and in an action against the debtor for recovery of the debt, such promise must be alleged in the declaration, although it need not be specifically proved.

See also title ASSUMPSIT.

PROMISSORY NOTE. A written instrument by which one person engages or promises to pay a certain sum of money to another. It in many respects resembles a bill of exchange; the following is an ordinary form of a promissory note :£100 0s. Od.

London, 1st March, 1874. On demand, I promise to pay to James Williams, or bearer, one hundred pounds, value received.

JOHN ANDERSON. A promissory note, of course, varies from the above form according to circumstances; thus a party frequently promises to pay at a certain period after the date of it instead of on demand, and then it would run thus:

Three months (as the case may be) after date, I promise,” &c.

See also title BILL OF EXCHANGE.

PROHIBITION- continued. being the king's prerogative writ; but for the furtherance of justice it may also be had in some cases out of the Courts of Chancery, Common Pleas, or Exchequer, directed to the judge and parties of a suit in any inferior Court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other Court. No such prohibition will issue after sentence unless the want of jurisdiction below appears on the face of the proceedings. Buygin v. Bennet, 4 Burr. 20, 35.

In early times, the chief use of prohibitions was to restrain the Ecclesiastical Courts from interfering in matters which were properly subject to the jurisdiction of the Courts of Common Law, whence also numerous statutes were passed in aid of the Common Law (see titles ARTICULI CLERI; CLARENDON, CONSTITUTIONS OF). And the clergy used to complain, notably in the reign of James I. during the primacy of Archbishop Bancroft, that the Common Law Courts extended their interference with the spiritual Courts by means of their prohibitions too far (see Case of Prohibitions, 12 Rep. 59). But in more modern times the uses of writs of prohibition have been chiefly the following: (1.) To commissioners, justices, and in

ferior Courts generally, whether civil or criminal, for assuming

unwarranted jurisdiction ; (2.) To Courts of Appeal, not except

ing even the Judicial Committee of the Privy Council. Darby v. Cozens, 1 T. R. 552; Ex parte

Smyth, 3 A. & E. 719, But, semble, no prohibition will issue to restrain the Lord Mayor's Court, this being a consequence of the words of s. 15 of the Mayor's Court Procedure Act, 1857, which provide that all objections to the jurisdiction shall be taken by plea only.

The Court of Chancery can properly grant a prohibition (as distinguished from an injunction) during vacation only, and not during term.

PRO INDIVISO (18 undivided). The joint occupation or possession of lands; thus lands held by co-parceners are held pro indiviso, that is, they are held uudividedly, neither party being entitled to any specific portions of the land so held, but both or all having a joint interest in the undivided whole. Cowel.

PROMISE. In law is either express or implied. Express, when founded upon the express contract or declaration of the party promising; implied, when the promise is

PROMOTERS. Those persons who in popular and penal actions prosecute offenders in their own name and in that of the king's, and are thereby entitled to a part of the fine or penalty inflicted on the offender as a reward for so prosecuting. The term is also, and now almost exclusively, applied to a party who puts in motion an ecclesiastical tribunal for the purpose of correcting the manners of any person who has violated the laws ecclesiastical, and, taking such a course, he is said to “promote the office of the judge." (see Taylor v. Morley, 1 Curt. 470). It would appear that the office of the judge ought not to be promoted in a suit by more ti:an one person, excepting in the case of church wardens (per Sir H.Jenner, 2 Curt. 403). The word “ promoters” is also used to denote a number of persons who projert and endeavour to float a public undertaking, e.g., promoters of railway companies.

PROPERTY (proprietas). A word of almost infinite extent, incluiling every species of acquisition which a man may have an interest in. Thus the terms lands, goo Is, chattels, etfects, and, indeed, almost every term which represents an object in which a person may acquire an interest or a right, are included in the word “property." Doe d. Morgan v. Morgan, 6 B. & C. 512.



He by

PROPRIETATE PROBANDA-contd whom it is brought forward, and who seeks

son for not executing it, that the distrainor, to obtain for it the probate formerly of the

or other person, claimed a property in the ordinary or of the Prerogative Court, and goods distrained (2 Arch. Pract. 827). The now of ihe Court of Probate. This is gene- object of this writ is now obtained by rally the executor; but if any testamentary means of a summons to interplead. paper be left in the possession of, or materially benefits, any other person, it may be PROPRIÉTÉ.

In French Law, is the propounded by such person. Wood and

right of enjoying and of disposing of Others v. Goodlake; Helps and Others, things in the most absolute manner, sub2 Curt. 84, 95.

ject only to the laws. PROPRIETARY CHAPELS. There are PRO RATÂ (in proportion ; at a certain four principal sorts of chapels : Ist. Private

rate). As, under certain circumstances, chapels; 2nd. Chapels of ease ; 3rd. Free

the payment of freight is regulated acchapels; and 4th. Proprietary chapels. lst. cording to the portion of the voyage pere Private chapels are those which noblemen

formed, pro ratâ itineris peracti. Abbot or any worthy and religious persons have, on Shipping, by Shee, 438, et seq. ; 1 M. & at their own expense, built in or near their S. 453 ; 5 Taunt. 512; 10 East, 378, 526, own houses, for them and their families to

See also the phrase used in 2 Williams's perform religious dutics in. These, and

Esors. 1459. their ornaments, are maintained by those to whom they belong, and chaplains are pro- PROROGATION OF PARLIAMENT : See vided for them by themselves with suitable title PARLIAMENT. pensions. The minister, by his appointment, gains no freehold interest, and may

PROTECTION, WRIT OF. A premga be dismissed whenever the party who ap

tive writ which the king may grant to pointed him thinks tit (4 B. & C. 573 ; Rog. privilege any person in his service from Eccl. Law, 149). 2nd. Chapels of case are arrest during a year and a day; this presuch as are built within the precincts of a rogative, however, is seldom exercised; it parish and belong to the parish church and was formerly the subject of much abuse, the parson of it (2 Roll. Abr. 310, 1. 51, whence the frequent complaints regarding 311, 1. 2). It is a mere oratory for the it in the early constitutional period. parishioners in prayers and preaching (sacraments and burials being received and

PROTECTOR. By s. 32 of the stat. 3 performed at the mother church), and com

& 4 Will. 4, c. 74, power is given to any monly the curate is removable at the will

settlor to appoint any person or persons, of the parochial minister (Gibs. 209; 1

not exceeding three, the protector of the Burn's Eccl. Law, 299). 3rd. Free chapels

settlement, and also to perpetuate that are such as are of royal foundation or

protectorship; and by s. 33 of the same founded by subjects by the licence or grant

Act, if any protector is a lunatic, idiot, or of the Crown. Hence they are usually

of unsound mind, the person for the time found upon the manors and ancient de

being entrusted by the royal sign maunal mesnes of the Crown, where they were

with the care and custody of the persons built whilst in the king's hands for the

and estates of such persons (being usually use of himself and his retinue when he

the Lord Chancellor) is constituted procame to reside there (Godol. Ab. 146).

tector in the place of such lunatic, idiot, 4th. Proprietary chapels are such as have

or person of unsound mind; or if the probeen built within time of memory; and

tector is a convicted felon, or an infant, or these are usually assessed to the rates as

it is uncertain whether he is living or other buildings and dissenting chapels are.

dead, and generally in the absence of a These chapels, unless when they are

protector for other causes, there being a enabled by statute, can exercise no paro

subsisting prior estate, the Court of Chan chial rights, and are described by Sir

cery is constituted protector in his stead. John Nicholl to be "anomalies unknown

However, by s. 22 of the Act, it is enacted to the constitution and to the ecclesiastical

that if at the time of a subsisting tenaney establishment of the Church of England.”

in tail under a settlement, there is also 2 Hlag. 46.

subsisting under the same settlement in

the same lands, any estate for years deterPROPRIETATE PROBANDA. A writ minable on a life or lives, or any greater which used to be directed to the sheriff, estate (not being an estate for years simrequiring him to inquire by inquest ply) prior to the estate tail, the owner whether goods distrained were the pro- such prior estate (or if there be more than perty of the plaintiff, or of the person claim- one such, then the owner of the first of ing them. This writ issued when to a writ them, being otherwise qualified) shall be of replevin tlie sheriff returned as his rea- the protector of the settlement, notwith

« PoprzedniaDalej »