A New Law Dictionary and Institute of the Whole Law

PRAYER OF PROCESS. A prayer or petition with which a bill in Equity used to conclude, to the effect that a writ of subpoena might issue against the defendant to compel him to answer upon oath all the matters charged against him in the bill.

See title SUBPOENA.

PREAMBLE OF A STATUTE. The introducing clause or section of a statute is so termed. It usually recites the objects and intentions of the Legislature in passing the statute, and frequently points out the evils or grievances which it was the object of the Legislature to remedy. Although the preamble is generally a key to the construction, yet it does not always open or disclose all the parts of it; as sometimes the Legislature, having a particular mischief in view, which was the primary object of the statute, merely state this in the preamble, and then go on in the body of the Act to provide a remedy for general mischiefs of the same kind, but of different species, neither expressed in the preamble, nor perhaps then contemplated by the framer thereof (Mann v. Cammel, Loft. 783). A reference to the preamble is therefore only an insufficient guide to the true interpretation of the statute.

PRE-AUDIENCE.

The precedence of being heard, which prevails at the Bar according to the rank which the counsel respectively hold. In the Court of Exchequer there are two barristers appointed by the Lord Chief Baron, called the postman and the tub-man (from the places in which they sit), who take precedence in motions.

PREBEND. The rents and profits (præbenda) belonging to a cathedral church, or the endowment in land or money given to it for the maintenance of the dean, chapter, and spiritual officers connected therewith. A prebendary, vulgarly called a prebend, is one of this ecclesiastical body who are so maintained. Cowel.

PREBENDARY (prebendarius): See title

PREBEND.

PRECEDENT CONDITION: See title CONDITIONS.

PRE-EMPTION (præ emption). The prerogative of purveyance, or pre-emption, was a right enjoyed by the Crown of buying up provisions and other necessaries by the intervention of the king's purveyors, for the use of his royal household, at an appraised valuation, in preference to all others, and even without consent of the owners; and also of forcibly impressing the carriages and horses of the subject to do the king's business on the public roads,

PRE-EMPTION-continued.

in the conveyance of timber, baggage, and the like. This prerogative of the Crown appears to have been made the occasion of much abuse in the early reigns, as one of the chief constitutional struggles of the period was the restriction and regulation of this right.

PREFER, TO. To bring before, to prosecute, to try, to proceed with. Thus, preferring an indictment signifies prosecuting or trying an indictment.

PREGNANCY, PLEA OF, A plea which a woman capitally convicted may plead in stay of execution; for this, though it is no stay of judgment, yet operates as a respite of execution until she is delivered.

PREMISES. Matter previously stated or set forth is frequently so termed. In a deed, the premises comprise all that portion which precedes the habendum, i. e., the date, the parties' names and descriptions, the recitals, the consideration and the receipt thereof, the grant, the description of the things granted, and the exceptions (4 Cr. Dig. 26). So, in pleading, the word is used, in its logical sense, as signifying foregoing statements or previously-mentioned facts. Thus, in a declaration in indebitatus assumpsit, the plaintiff, after alleging that the defendant was indebted to him in a given sum of money, proceeded to state that, in consideration of the premises, the defendant promised to pay him the same. So, again, in a declaration for the diversion of water from a water-course, the plaintiff, after stating his right to the enjoyment of the water, and his previous user of the same, and setting forth the fact and the nature of the diversion, then proceeds to point out the injurious consequences which have flowed from the previously-stated facts, in the following manner: “And the plaintiff, by reason of the premises, hath been deprived of the use, benefit, and advantage of the water of the said watercourse."

The common use of the word "premises," as in the phrase "eligible premises," is an abusive use of the word, derived apparently from the frequency with which the word is used in conveyances and leases of lands and houses.

PREROGATIVE-continued. making treaties, leagues, and alliances with foreign states and princes; of appointing ports and havens, or such places only for persons and merchandize to pass into and out of the realm as he in his wisdom sees proper, are all instances of the king's prerogative. The greater part of early constitutional history consists in the struggles of Parliament to restrain the royal prerogative (see title CONSTITUTION, GROWTH OF). And at the present day the law regarding the prerogative exhibits exactly the reverse peculiarity, viz., that the Crown may not of its own authority diminish its prerogative, although with the authority of parliament it may do so (Ex parte Eduljee Byramjee, 5 Moo. P. C. C. 276). And generally the sovereign may not exercise his prerogative in contrariety to the Common Law; and although he may by his prerogative establish Courts to proceed according to the Common Law, he cannot create any new Court to administer any other law. In re Natal (Bishop),

3 Moo. P. C. C. (N.S.) 115. PREROGATIVE COURT: See title COURTS ECCLESIASTICAL, 8. 5.

PREROGATIVE LAW. That part of the Common Law of England which is more particularly applicable to the king. Com. Dig. tit. "Ley." (A).

PRESCRIBE, TO. To assert a right or title to the enjoyment of a thing on the ground of having hitherto had the uninterrupted and immemorial enjoyment of it.

See title PRESCRIPTION.

PRESCRIPTION (præscriptio). A title which a person acquires to incorporeal hereditaments by long and continued possession. Every species of prescription by which property is acquired or lost is founded on this presumption, that he who has had a quiet and uninterrupted possession of anything for a long period of years is supposed to have a just right, without which he could not have been suffered to continue in the enjoyment of it. This mode of acquisition was well known in the Roman Law by the name of usucaptio, because a person who acquired a title in this manner might be said usu rem capere. Before the Act of 2 & 3 Will. 4, c. 71, the possession required to constitute a prescription must have existed time out of mind, or beyond the memory of man, as it is also termed, that is, before the reign of Richard I.; but now, the period of possession necessary to constitute a title by prescription is in many cases by the above Act considerably shortened.

See titles COMMONS; EASEMENTS; PRO-
FITS À PRENdre.

He who is presented to

a living by the patron thereof. PRESENTMENT.

This word has various significations. In its relation to criminal matters it signifies the notice taken by a grand jury of any offence from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king; as the presentment of a nuisance, a libel and the like; upon which the officer of the Court must afterwards frame an indictment before the party presented can be put to answer it. The word, as used in reference to admissions to copyholds, signifies an information made by the homage or jury of a Court Baron to the lord, by way of instruction, to give the lord notice of the surrender and of what has been transacted out of Court (5 Cruise, 502). But the necessity of the latter presentment has been abolished by 4 & 5 Vict. c. 35.

See title COPYHOLDS. PRESS, LIBERTY OF. Upon the art of printing becoming general, the press was subjected to a rigorous censorship, first on the part of the Church, and latterly on the part of the State. Thus, in the reign of Elizabeth, printing was interdicted, save in London, Oxford, and Cambridge. the reign of James I. the first newspaper was attempted to be printed, but that king and his successor endeavoured to silence the same by means of the Star Chamber jurisdiction. In 1641, when the Star Chamber was abolished, newspapers promised to become more abundant, especially as the mind of the nation was at that time in a very active and even excited state; but the Long Parliament by various ordinances endeavoured to restrain printing, at least on the part of the Royalist and Prelatical party. This conduct on the part of the Long Parliament was the occasion of Milton's treatise, entitled "Areopagitica, A Speech for Liberty of Unlicensed Printing." Upon the Restoration, in 1660, the Licensing Act (13 & 14 Car. 2, c. 33) was passed, which placed printing under the control of the Government, and in particular confined the trade to London, York, Oxford, and Cambridge, limiting also the 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, C.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 1d. 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 Case 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 (b.) Prêt de consummation, corresponding to the mutuum of Roman Law (see that title).

PRICKING FOR SHERIFFS used to be the method of electing the sheriffs of the different counties of England. Originally the sheriffs 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 sheriff's 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 Term (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 sheriff, 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 phrase "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 chausses, 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 primer 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. 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 ACCESSORIES; 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 exceptions, chiefly statutory) what a man may do by himself he may also do by another acting for him; but the converse 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 particular 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

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 nay, 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 pretended principal either upon the contract or at all; but he may charge the assuming agent, not indeed, upon 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 he may (in case of any ambiguity in the instrument) be held personally liable (Humfrey v. Dale, 7 El. & Bl. 266; Èl, Bl. & El. 1004); 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 contracting with the agent in ignorance of the principal's death was protected, and might recover. Smout v. Ilbery, 10 M. & W. 1; Blades v. Free, 9 B. & C. 157.

PRINCIPAL AND SURETY: See title SURETY.

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, the dean and chapter of a cathedral, or any other person 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.

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