PRIVATE CHAPELS: See title PROPRIETARY CHAPELS.

PRIVATE WAY: See title WAY and title EASEMENT.

PRIVIES (from the Fr. privé, familiar, intimate, &c.). Persons between whom some connection exists, arising from some mutual contract entered into with each other; as between donor and donee, lessor and lessee; or else it signifies persons related by blood, as ancestor and heir, &c. And this connection which so arises or exists between persons is termed privity. The word "privy" is used with various adjuncts, in order to express the nature of the privity or connection which exists between persons. Thus, persons related by blood, as ancestor and heir for instance, are denominated privies in blood; those related to a party by mere right of representation, as executors or administrators of a deceased person, are denominated privies in representation, or in right; those connected with each other in respect of estate, as lessors and lessees, donors and donees, &c., are denominated privies in estate. So also those who are in any way related to the parties who levy a fine and claim under them, either by right of blood or otherwise, are denominated privies to a fine; and the connection or relationship which in all such cases arises or exists between the parties is termed privity; so that between lessors and lessees, who are termed privies in estate, there also exists privity of estate. 5 Cruise, 158; Les Termes de la Ley.

PRIVILEGE (privilegium). Sometimes used in law for a place which has some special immunity; and sometimes for an exemption from the rigour of the Common Law. It is either real or personal. A real privilege is that which is granted to a place, a personal privilege that which is granted to a person. An instance of the former kind is the power granted to the universities to have Courts of their own; an instance of the latter kind is the exemption of certain persons from being obliged to serve in certain offices, or to perform certain duties. Kitchen; Cowel. See also title PARLIAMENT.

PRIVILEGED COMMUNICATION. In actions for libel or slander, one of the most common defences is that of privilege, or that the words spoken or written were a privileged communication. The chief grounds of privilege are the following:

(1.) That the defendant was the master of the plaintiff, and spoke the words to him while that relation was continuing (Somerville v. Hawkins, 10 C. B. 583);

(2.) That the defendant spoke or wrote the words as part of a character which he was requested to give of the plaintiff (Fountain v. Boodle, 3 Q. B. 11);

(3.) That the words were a fair comment upon an author or speaker (Wason v. Walter, L. R. 4 Q. B. 73); an i

(4.) That the defendant had a pecuniary interest (direct or indirect) in the business with reference to which the words were spoken, Coxhead v. Rickards, 2 C. B. 569.

PRIVILEGED DEBTS. Those debts which an executor may pay in preference to others; such as the funeral expenses, servants' wages, expenses of medical attendance incurred during the illness of the deceased, &c. Also, in bankruptcy proceedings under the Bankruptcy Act, 1869, the following classes of debts are privileged, ie, entitled to priority of payment;

(1.) Parochial, and other local rates; (2.) Assessed taxes;

(3.) Land tax;

(4.) Property or income tax up to the 5th of April preceding. In each

of these cases to the extent of one year's arrears only:

(5.) Wages or salaries of clerks or servants, not exceeding four months' arrears or £50; and

(6.) Wages of labourers and workmen, not exceeding two months' ar

rears.

PRIVITY OF CONTRACT. That connection or relationship which exists between two or more contracting parties is so termed. It is essential to the maintenance of an action on any contract that there should subsist a privity between the plaintiff and the defendant in respect of the matter sued on; and the absence of such privity is fatal to the action (Baron v. Husband, 4 B. & Ad. 611). But in some cases, where an action of contract will not lie for want of privity, an action of tort (in which privity is not an essential) will properly lie. Gerhard v. Bates, 2 El. & Bl.

476.

See title CONTRACTS.

PRIZE. Is booty seized on land or captured at sea in times of war. The

PRIZE-continued.

English Court of Admiralty has always had jurisdiction in the matter of naval captures; but until the stat. 3 & 4 Vict. c. 65, s. 22, it had no jurisdiction in the matter of land seizures, or booty. Banda and Kirwee Booty Case, Law Rep. 1 A. & E. 109.

Prize tribunals are a species of international tribunals, their sentences being conclusive evidence upon every matter within their respective jurisdictions (Bolton v. Gladstone, 5 East, 155); but nothing that rests on mere inference from these sentences is conclusive in the same manner (Fisher v. Ogle, 1 Camp. 418). The conclusive effect of these sentences appears to arise from the fact that they are not given in any litigation inter partes (the foreign state having no locus standi in the Courts) nor yet ex parte; but the sovereign state itself in which the Court is sitting is by means of its Court making an inquiry for itself, and adjudicating for itself only, and the sovereign state is answerable to the injured party (if any), who will either claim or recriminate through his own government

PROBATE (probatio). The copy of a will or testament made out in parchment under the seal formerly of the ordinary, and now of the Court of Probate, and usually delivered to the executor or administrator of the deceased, together with a certificate of the will's having been proved, is commonly called the probate. It is sometimes used for the act of proving a will. The meaning of proving a will may be thus explained. An executor, before he is permitted to take a probate of the will, is obliged to swear, formerly before the ordinary or his surrogate, and now before a registrar of the Court of Probate, that the writing contains the true last will and testament of the deceased as far as he knows or believes, and that he will truly perform the same by paying first the testator's debts, and then the legacies therein contained, as far as the goods, chattels, and credits of the deceased will thereto extend, and the law charge him; and that he will make a true and perfect inventory of all the goods, chattels, and credits, and exhibit the same into the registry of the Court at the time assigned by the Court, and render a just account thereof when lawfully required; and this is termed proving a will. Toller's Exe. 58.

See also title PROVING A WILL.

PROCEDENDO. A writ by which a cause which has been removed from an inferior to a superior Court by certiorari or otherwise, is sent down again to the same

PROCEDENDO-continued.

Court to be proceeded with there, after it has appeared that the defendant had not good cause for removing it. Cowel; Les Termes de la Ley.

PROCEDURE. This word is commonly opposed to the sum of legal principles constituting the substance of the law, and denotes the body of rules, whether of practice or of pleading, whereby rights are effectuated through the successful application of the proper remedies. It is also generally distinguished from the Law of Evidence. The procedure of different jurisdictions varies, that of the Courts of Common Law being in many respects different from the procedure in the Courts of Equity; but under the Judicature Act, 1873, and the rules made and to be made thereon, some attempt is made to ensure uniformity of procedure in these two hitherto separate jurisdictions. The procedure in criminal cases also differs from that in civil ones, and is not affected by the Judicature Act, or the rules thereon. For the particular rules of procedure, the reader must consult the particular titles contained in the Table of Contents under the heads Practice and Pleading.

PROCESS. This word is generally defined to be the means of compelling the defendant in an action to appear in Court. And when actions were commenced by original writ, instead of, as at present, by writ of summons, the method of compelling the defendant to appear was by what was termed original process, being founded on the original writ, and so called also to distinguish it from mesne or intermediate process, which was some writ or process which issued during the progress of the suit. The word "process," however, as now commonly understood, signifies those formal instruments called writs. The word "process" is in Common Law practice frequently applied to the writ of summons, which is the instrument now in use for commencing personal actions. The word "process," however, in its more comprehensive signification, includes not only the writ of summons, but all other writs which may be issued during the progress of an action. Those writs which are used to carry the judgments of the Courts into effect, and which are termed writs of execution, are also commonly denominated final process, because they usually issue at the end of a suit. Steph. on Plead. 21; Smith's Action at Law, 56; 1 Arch. Pract. 582.

PROCHEIN AMY (next friend). As an infant cannot legally sue in his own name, the suit or action must be brought by his prochein amy, i.e., some friend who is will

PROCHEIN AMY-continued. ing to take upon himself the trouble and responsibility. Co. Litt. 135 b., note; Cro. Cur. 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 proc'amations, 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 contradict 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.

The

PROCLAMATION OF A FINE. 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: which, 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 plaintiff'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 confessed), 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 authorized 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 his 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 officers 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 produces 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 easements, 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,

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. Buggin 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 (as undivided). The joint occupation or possession of lands; thus lands held by co-parceners are held pro indiviso, that is, they are held undividedly, 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

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.

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 than one person, excepting in the case of churchwardens (per Sir H. Jenner, 2 Curt. 403). The word "promoters" is also used to denote a number of persons who project and endeavour to float a public undertaking, e.g., promoters of railway companies.

PROPERTY (proprietas). A word of almost infinite extent, including every species of acquisition which a man may have an interest in. Thus the terms lands, goods, chattels, effects, 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.

PROPOUNDER OF A WILL. He by whom it is brought forward, and who seeks to obtain for it the probate formerly of the ordinary or of the Prerogative Court, and now of the Court of Probate. This is generally the executor; but if any testamentary paper be left in the possession of, or materially benefits, any other person, it may be propounded by such person. Wood and Others v. Goodlake; Helps and Others, 2 Curt. 84, 95.

There are

PROPRIETARY CHAPELS. four principal sorts of chapels: 1st. Private chapels; 2nd. Chapels of ease; 3rd. Free chapels; and 4th. Proprietary chapels. 1st. Private chapels are those which noblemen or any worthy and religious persons have, at their own expense, built in or near their own houses, for them and their families to perform religious duties in. These, and

their ornaments, are maintained by those to whom they belong, and chaplains are provided for them by themselves with suitable pensions. The minister, by his appointment, gains no freehold interest, and may be dismissed whenever the party who appointed him thinks fit (4 B. & C. 573; Rog. Eccl. Law, 149). 2nd. Chapels of ease are such as are built within the precincts of a parish and belong to the parish church and the parson of it (2 Roll. Abr. 340, 1. 51, 341, 1. 2). It is a mere oratory for the parishioners in prayers and preaching (sacraments and burials being received and performed at the mother church), and commonly the curate is removable at the will of the parochial minister (Gibs. 209; 1 Burn's Eccl. Law, 299). 3rd. Free chapels are such as are of royal foundation or founded by subjects by the licence or grant of the Crown. Hence they are usually found upon the manors and ancient demesnes of the Crown, where they were built whilst in the king's hands for the use of himself and his retinue when he came to reside there (Godol. Ab. 146). 4th. Proprietary chapels are such as have been built within time of memory; and these are usually assessed to the rates as other buildings and dissenting chapels are. These chapels, unless when they are enabled by statute, can exercise no parochial rights, and are described by Sir John Nicholl to be "anomalies unknown to the constitution and to the ecclesiastical establishment of the Church of England." 2 Hag. 46.

PROPRIETATE PROBANDA. A writ which used to be directed to the sheriff, requiring him to inquire by inquest whether goods distrained were the property of the plaintiff, or of the person claiming them. This writ issued when to a writ of replevin the sheriff returned as his rea

PROPRIETATE PROBANDA-contd son for not executing it, that the distrainor, or other person, claimed a property in the goods distrained (2 Arch. Pract. 827). The object of this writ is now obtained by means of a summons to interplead.

PROPRIÉTÉ.

In French Law, is the right of enjoying and of disposing of things in the most absolute manner, subject only to the laws.

PRO RATÂ (in proportion; at a certain rate). As, under certain circumstances, the payment of freight is regulated according to the portion of the voyage performed, pro ratâ itineris peracti. Abbot on Shipping, by Shee, 438, et seq.; 1 M. & S. 453; 5 Taunt. 512; 10 East, 378, 526. See also the phrase used in 2 Williams's Exors. 1459.

PROROGATION OF PARLIAMENT: See title PARLIAMENT.

PROTECTOR.

By s. 32 of the stat. 3 & 4 Will. 4, c. 74, power is given to any settlor to appoint any person or persons, not exceeding three, the protector of the settlement, and also to perpetuate that protectorship; and by s. 33 of the same Act, if any protector is a lunatic, idiot, or of unsound mind, the person for the time being entrusted by the royal sign mannal with the care and custody of the persons and estates of such persons (being usually the Lord Chancellor) is constituted protector in the place of such lunatic, idiot, or person of unsound mind; or if the protector is a convicted felon, or an infant, or it is uncertain whether he is living or dead, and generally in the absence of a protector for other causes, there being a subsisting prior estate, the Court of Chan cery is constituted protector in his stead. However, by s. 22 of the Act, it is enacted that if at the time of a subsisting tenancy in tail under a settlement, there is also subsisting under the same settlement in the same lands, any estate for years determinable on a life or lives, or any greater estate (not being an estate for years simply) prior to the estate tail, the owner of such prior estate (or if there be more than one such, then the owner of the first of them, being otherwise qualified) shall be the protector of the settlement, notwith