of Pennsylvania, William Penn was called the proprietary. Prosecutions are carried on in the name of the government, and have for their principal The domain which William Penn and his object the security and happiness of the peofamily had in the state was, during the revo-ple in general. Hawk. Pl. Cr. b. 2, c. 25, s. lutionary war, divested by the act of Novem-3; Bacon, Abr. Indictment (A 3). ber 27, 1779, from that family, and vested in the commonwealth for the sum which the latter paid to them of one hundred and thirty thousand pounds sterling. PROPRIETATE PROBANDA. DE PROPRIETATE PROBANDA. See PROPRIETOR. The owner. PROPRIO VIGORE (Lat.). By its own force or vigor: an expression frequently used in construction. A phrase is said to have a certain meaning proprio vigore. PROPTER AFFECTUM (Lat.). For or on account of some affection or prejudice. A juryman may be challenged propter affectum: as, because he is related to the party, has eaten at his expense, and the like. See CHALLENGE. PROPTER DEFECTUM (Lat.). On account of or for some defect. This phrase is frequently used in relation to challenges. A juryman may be challenged propter defectum: as, that he is a minor, an alien, and the like. See CHALLENGE. PROPTER DELICTUM (Lat.). For or on account of crime. A juror may be challenged propter delictum when he has been convicted of an infamous crime. See CHAL LENGE. PROROGATED JURISDICTION. In Scotch Law. That jurisdiction which by the consent of the parties, is conferred upon a judge who, without such consent, would be incompetent. Erksine, Inst. 1. 2. 15. At common law, when a party is entitled to some privilege or exemption from jurisdiction he may waive it, and then the jurisdiction is complete; but the consent cannot give jurisdiction. PROROGATION (Lat.). Putting off to another time. It is generally applied to the English parliament, and means the continuance of it from one day to another: it differs from adjournment, which is a continuance of it from one day to another in the same session. 1 Bla. Com. 186. In Civil Law. The giving time to do a thing beyond the term prefixed. Dig. 2. 14. 27. 1. See PROLONGATION. PROSCRIBED (Lat. proscribo, to write before). In Civil Law. Among the Romans, a man was said to be proscribed when a reward was offered for his head; but the term was more usually applied to those who were sentenced to some punishment which carried with it the consequences of civil death. Code, 9. 49. PROSECUTION (Lat. prosequor, to follow after). In Criminal Law. The means adopted to bring a supposed offender to justice and punishment by due course of law. In England, the modes most usually employed to carry them on are-by indictment; 1 Chitty, Cr. Law, 132; presentment of a grand jury; id. 133; coroner's inquest; id. 134; and by an information. In this country, the modes are-by indictment, by presentment, by information, and by complaint. PROSECUTOR. In Practice. He who prosecutes another for a crime in the name of the government. The public prosecutor is an officer appointed by the government to prosecute all offences: he is the attorney-general or his deputy. A private prosecutor is one who prefers an accusation against a party whom he suspects to be guilty. Every man may become a prosecutor; but no man is bound, except in some few of the more enormous offences, as treason, to be one; but if the prosecutor should compound a felony he will be guilty of a crime. The prosecutor has an inducement to prosecute, because he cannot, in many cases, have any civil remedy until he has done his duty to society by an endeavor to bring the offender to justice. If a prosecutor act from proper motives, he will not be responsible to the party in damages though he was mistaken in his suspicions; but if, from a motive of revenge, he institute a criminal prosecution without any reasonable foundation, he may be punished by being muleted in damages, in an action for a malicious prosecution. In Pennsylvania, a defendant is not bound to plead to an indictment, where there is a private prosecutor, until his name shall have been indorsed on the indictment as such, and on acquittal of the defendant, in all cases except where the charge is for a felony, the jury may direct that he shall pay the costs. See 1 Chitty, Cr. Law, 1-10; 1 Phill. Ev.; 2 Va. Cas. 3, 20; 1 Dall. 5; 2 Bibb. 210; 6 Call, 245; INFORMER. PROSOCER (Lat.). A father-in-law's father; grandfather of wife. Vicat. Voc. Jur. PROSOCERUS (Lat.). A wife's grand mother. PROSPECTIVE (Lat. prospicio, to look forward). That which is applicable to the future: it is used in opposition to retrospective. To be just, a law ought always to be prospective. 1 Bouvier, Inst. n. 116. PROSPECTUS. A prospectus of an intended company ought not to omit actual and material facts, or to conceal facts material to be known, the misrepresentation or concealment of which may improperly influence the mind of the reader; for if he is thereby deceived into becoming an allottee of shares and suffers loss he may proceed against those who have misled him. The purpose of a prospec ! PROSTITUTION tus is only to invite persons to become allottees of shares; when it has performed this office it is exhausted; L. R. 6 H. L. 377. A prospectus is admissible in evidence in an action at law by a company against its promoters for secret profits; 61 Peun. 202. See Thomp. Liab. of Off. 309. PROSTITUTION. The common lewdness of a woman for gain. The act of permitting a common and indiscriminate sexual intercourse for hire; 12 Mete. 97. In all well-regulated communities this has been considered a heinous offence, for which the woman may be punished; and the keeper of a house of prostitution may be indicted for keeping a common nuisance. So much does the law abhor this offence that a landlord cannot recover for the use and occupation of a house let for the purpose of prostitution; 1 Esp. Cas. 13; 1 B. & P. 340, n. In a figurative sense, it signifies the bad use which a corrupt judge makes of the law, by making it subservient to his interest: as, the prostitution of the law, the prostitution of justice. PROTECTION. In Mercantile Law. The name of a document generally given by notaries public to sailors and other persons going abroad, in which is certified that the bearer therein named is a citizen of the 481 PROTEST, PAYMENT UNDER son to suppose it will not be paid. It seems to be of doubtful utility, except that it gives the drawer of a bill on a foreign country an opportunity of availing himself of any attachment law there in force; 1 Ld. Raym. 745. The protest is a formal paper signed and sealed by a notary wherein he certifies that bill attached thereunto, or a copy of which is on the day of its date he presented the original above written (a description of the bill is enough; 17 How. 606), to the acceptor, or the original note to the maker thereof, and demanded payment, or acceptance, which was refused, for reasons given in the protest, and that thereupon he protests against the drawer and indorsers thereof, for exchange, re-exchange, damages, costs, and interest. See Benj. Chalm. Bills, etc., art. 176; 2 Ames, Bills, etc., 863. It is usual, also, for the notary to serve notices of the protest on all the parties to the bill. The notice contains a description of the bill, including its date and amount, the fact of demand and refusal, and that the holder looks to the person notified for payment. Protest of foreign bills is proof of demand and refusal to pay or accept; 2 H. 4 id. 54; 8 Wheat. 333; 2 Pet.. 179, 688. Protest is said to be part of the constitution of a foreign bill; and the form is governed by the lex loci contractus; 2 Hill, N. Y. 227; 11 La. 14; 2 Pet. 179, 180; Story, Bills, 176 (by the place where the protest is made; Benj. Chalm. Bills, etc., art. 180). A protest must be made by a notary public or other person authorized to act as such; Benj. Chalm. Bills, etc., art. 177; but it has been held that the duties of a notary cannot be performed by a clerk or deputy; 102 Mass. 141. Inland bills and promissory notes need not be protested; 6 How. 23. See ACCEPTANCE; BILLS OF EXCHANGE. & J. 399; PROTEST. In Contracts. A notarial act, made for want of payment of a promis- In Legislation. A declaration made by sory note, or for want of acceptance or pay-one or more members of a legislative body ment of a bill of exchange, by a notary public, in which it is declared that all parties to such instruments will be held responsible to the holder for all damages, exchanges, reexchange, etc. A formal notarial certificate attesting the dishonor of a bill of exchange or promissory note; Benj. Chalm. Bills, etc., art. 176. There are two kinds of protest, namely, protest for non-acceptance, and protest for non-payment. There is also a species of protest common in England, which is called protest for better security. Protest for nonacceptance or non-payment, when duly made and accompanied by notice to all the parties to the bill or note, has the effect of making all of them responsible to the holder for the amount of the bill or note, together with damages, etc.; 3 Kent, 63; Chitty, Bills, 278; Comyns, Dig. Merchant (F 8, 9, 10); Bacon, Abr. Merchant, etc. (M 7). Protest for better security may be made when the acceptor of a bill fails, becomes insolvent, or in any other way gives the holder just reaVOL. II.-31 that they do not agree with some act or resolution of the body: it is usual to add the reasons which the protestants have for such a dissent. In Maritime Law. A writing, attested by a justice of the peace, a notary public, or a consul, made and verified by the master of a vessel, stating the severity of a voyage by which a ship has suffered, and showing that it was not owing to the neglect or misconduct of the master. See Marsh. Ins. 715, 716; 1 Wash. C. C. 145, 238, 408, n.; 1 Pet. C. C. 119; 1 Dall. 6, 10, 317; 2 id. 195; 3 W. & S. 144. The protest is not, in general, evidence for the master of the vessel or his owners in the English or American courts; yet it is often proper evidence against them; Abbott, Shipp. 465, 466; Fland. Shipp. § 285. PROTEST, PAYMENT UNDER. A person who without the compulsion of legal process, or duress of goods or of the person, yields to the assertion of an invalid or unjust claim by paying it, cannot by mere protest, either in writing or oral, change its character from a voluntary to an involuntary payment. The payment overcomes and nullifies the protest; 4 Wait. Act. & Def. 493. Where an illegal tax is paid under protest to one having authority to enforce its collection, it is an involuntary payment and may be recovered back; 29 lowa, 310; 21 Mich. 483; but see 34 id. 170; s. c. 22 Am. Rep. 512. A mere apprehension of legal proceedings to collect a tax is not sufficient to make the payment compulsory; there must be an immediate power or authority to institute them; 46 Md. 552. An action will not lie to recover money voluntarily paid to redeem land sold upon a void tax judgment, when the party making the payment has at the time full knowledge of the character of the sale and all the facts affecting its validity; 26 Minn. 543. The payment of illegal fees cannot generally be considered as voluntary, so as to preclude the plaintiff from recovering them back; 2 B. & C. 729; 2 B. & A. 562. Where money is paid under an illegal demand, colore officii, the payment can never be voluntary; 8 Exch. 625. admitted to be true as stated by the opposite The common form of making protestations In Practice. An asseveration made by taking God to witness. A protestation is a form of asseveration which approaches very nearly to an oath. Wolffius, Inst. § 375. PROTHONOTARY. The title given to an officer who officiates as principal clerk of some courts. Viner, Abr. Where a railway company exacted from a carrier more than they charged to other carriers in breach of the acts of parliament, it was held that sums thus exacted could be recovered back; 7 M. & G. 253. Where a man pays more than he is bound to do by law for the performance of a duty which the law says is owed to him for nothing, or for less than he has paid, he is entitled to recovering primus, or first. back the excess; L. R. 4 H. L. C. 249. The object of the protest is to take from the payment its voluntary character; it serves as evidence that the payment was not voluntary, and in order to be efficacious, there must be actual coercion, duress or fraud, presently existing, or the payment will be voluntary in spite of the protest; 59 N. Y. 603; 115 Mass. 367. Whether actual protest, in case of the payment of money illegally demanded by a public officer is a condition precedent to a recovery by the party paying the money is not clearly settled; 4 Wait. Act. & Def. 495. Where the person demanding the money has notice of the illegality of the demand, a protest is not necessary, but otherwise it is necessary; 49 Cal. 624. PROTESTANDO. See PROTESTATION. PROTESTATION. In Pleading. The indirect affirmation or denial, by means of the word protesting (in the Latin form of pleadings, protestando), of the truth of some matter which cannot with propriety or safety be positively affirmed, denied, or entirely passed over. See 3 Bla. Com. 311. The exclusion of a conclusion. Co. Litt. 124. Its object was to secure to the party making it the benefit of a positive affirmation or denial in case of success in the action, so far as to prevent the conclusion that the fact was In the ecclesiastical law, the name of prothonotary is given to an officer of the court of Rome. He is so called because he is the first notary, -the Greek word npwτos signify These notaries have pre-eminence over the other notaries, and are put in the rank of prelates. There are twelve of them. Dalloz, Dict. de Jur. PROTOCOL. A record Among the Romans, protocollum was a writ- In France the minutes of notarial acts were formerly transcribed on registers, which were By the German law it signifies the minutes PROTUTOR (Lat.). In Civil Law. He who, not being the tutor of a pupil or minor, has administered his property or affairs as if he had been, whether he thought himself legally invested with the authority of a tutor or not. He who marries a woman who is tutrix be comes, by the marriage, a protutor. The PROUT PATET PER RECORDUM (Lat.). As appears by the record. This PROVER prout patet per recordum. 1 Chitty, Pl. *356; 10 Me. 127. PROVER. In Old English Law. One who undertakes to prove a crime against another. 28 Edw. I.; 5 Hen. IV. One who, being indicted and arraigned for treason or felony, confesses before plea pleaded, and ac cuses his accomplices to obtain pardon; state's evidence. 4 Bla. Com 330*. To prove. Law Fr. & Lat. Dict.; Britton, c. 22. PROVINCE. Sometimes this signifies the district into which a country has been divided as, the province of Canterbury, in England; the province of Languedoc, in France. Sometimes it means a dependency or colony: as, the province of New Brunswick. It is sometimes used figuratively to signify power or authority: as, it is the province of the court to judge of the law, that of the jury to decide on the facts. 483 PROVISION. In Common Law. The property which a drawer of a bill of exchange places in the hands of a drawee: as, for example, by remittances, or when the drawee is indebted to the drawer when the bill becomes due, provision is said to have been made. Acceptance always presumes a provision. See Code de Comm. art. 115-117. In French Law. An allowance granted by a judge to a party for his support, which is to be paid before there is a definite judgment. In a civil case, for example, it is an allowance made to a wife who is separated from her husband. Dalloz, Dict. In PROVISIONAL SEIZURE. Louisiana. A term which signifies nearly the same as attachment of property. It is regulated by the Code of Practice as follows, namely: The plaintiff may, in certain cases, hereafter provided, obtain the provisional seizure of the property which he holds in pledge, or on which he has a privilege, in order to secure a payment of his claim. La. Code, art. 284. Provisional seizure may be ordered in the following cases: first, in executory proceedings, when the plaintiff sues on a title importing confession of judgment; second, when a lessor prays for the seizure of furniture or property used in the house, or attached to the real estate which he has leased; third, when a seaman, or other person, employed on board of a ship or water craft, navigating within the state, or person having furnished materials for or made repairs to such ship or water craft, prays that the same may be he has been paid the amount of his claim; seized, and prevented from departing, until fourth, when the proceedings are in rem, that is to say, against the thing itself which stands pledged for the debt, when the property is abandoned, or in cases where the owner of the thing is unknown or absent. La. Code, art. 285. See 6 Mart. La. N. s. 168; 7 id. 153; 8 id. 320; 1 Mart. La. 168; 12 id. 32. PROVOST PROVISIONS. Food for man; victuals. As good provisions contribute so much to the health and comfort of man, the law requires that they shall be wholesome: he who be punished for a misdemeanor. 2 East, Pl. sells unwholesome provisions may, therefore, Cr. 822; 3 Maule & S. 10; 4 id. 214; 4 Camp. 10. that the seller impliedly warrants that they And in the sale of provisions the rule is are wholesome. 3 Bla. Com. 166. PROVISO. The name of a clause in serted in an act of the legislature, a deed, a written agreement, or other instrument, which generally contains a condition that a certain thing shall or shall not be done, in order that an agreement contained in another clause shall take effect. It always implies a condition, unless subsequent words change it to a covenant; but when a proviso contains the mutual words of the parties to a deed, it amounts to a covenant; 2 Co. 72; Cro. Eliz. 242; Moore, 707. A proviso differs from an exception; 1 B. & Ald. 99. An exception exempts, absolutely, from the operation of an engagement or an enactment; a proviso defeats their operation, conditionally. An exception takes out of an engagement or enactment something which would otherwise be part of the subject-matter of it; a proviso avoids them by way of defeasance or excuse; 8 Am. Jur. 242; Plowd. 361; 1 Saund. 234 a, note; Lilly, Reg., and the cases there cited. See, generally, Am. Jur. no. 16, art. 1; Bacon, Abr. Conditions (A); Comyns, Dig. Condition (A 1), (A 2), Dwarris, Stat. 660. PROVISOR. He that hath the care of providing things necessary; but more especially one who sued to the court of Rome for a provision. Jacobs; 25 Edw. III. One nominated by the pope to a benefice before it became void, in prejudice of right of true patron. 4 Bla. Com. 111*. PROVOCATION (Lat. provoco, to call out). The act of inciting another to do something. Provocation simply, unaccompanied by a crime or misdemeanor, does not justify the person provoked to commit an assault and battery. In cases of homicide it may reduce the offence from murder to manslaughter. But when the provocation is given for the purpose of justifying or excusing an intended murder, and the party provoked is killed, it is no justification; 2 Gilb. Ev. by Lofft, 753. The unjust provocation by a wife of her from his ill usage, will bar her divorce on the husband, in consequence of which she suffers Lee, 172; 1 Hagg. Cons. 155. See CRUELTY; ground of the husband's cruelty; her remedy in such cases is to change her manners; 2 PERSUADE; 1 Russ. Cr. 434, 486; 1 East, Pl. Cr. 232-241. PROVOST. A title given to the chief of some corporations or societies. In France, this title was formerly given to some presiding judges. The word is derived from the Latin præpositus. A distinction has been made between the terms public and general: they are sometimes used as synonymous. The former term is applied strictly member of the state; while the latter includes to that which concerns all the citizens and every a lesser, though still a large, portion of the community. Greenl. Ev. § 128. PROXENETÆ (Lat.). In Civil Law. Among the Romans, these were persons whose functions somewhat resembled those of the brokers of modern commercial nations. Dig. 50. 14. 3; Domat, 1. 1, t. 17, § 1, art. 1. PROXIMATE CAUSE. See 23 Am. Rep. 21; 35 id. 649. CAUSA PROXIMA. PROXIMITY (Lat.). Kindred between conflict with those of an individual, the latter two persons. Dig. 38. 16. 8. 590. At Where there was no clause in the act of incorporation empowering the members of the company to vote by proxy, but a by-law provided that the shareholders may so vote, it was held in view of this by-law that a vote given by proxy should have been received; 5 Day, 329. The court did not say how they would have decided had there been no such by-law, but drew a clear distinction between public and moneyed corporations. In 2 Green, N. J. 222, it was held that it required legislative sanction before any corporation could make a by-law authorizing members to vote by proxy. So, also, in 3 Grant, Cas. 209. See 2 Kent, 294; 6 Wend. 509. Stockholders of national banks may vote by proxy, but no officer, clerk, teller, or book-keeper of a bank may act as proxy; R. S. §5144; many of the states have passed statutes regulating the right to vote by proxy. When the public interests and its rights must yield. Co. Litt. 181. If, for example, a road is required for public convenience, and in its course it passes on the ground occupied by a house, the latter must be torn down, however valuable it may be to the owner. In such a case both law and justice require that the owner shall be fully indemnified. See EMINENT DOMAIN. PUBLIC DEBT. That which is due or owing by the government. The constitution of the United States provides, art. 6, s. 1, that "all debts contracted or engagements entered into before the adoption of this constitution shall be as valid against the United States under this constitution as under the confederation." The fourteenth amendment provides that "the validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." PUBLIC ENEMY. This word, used in the singular number, designates a nation at war with the United States, and includes every member of such nation. Vattel, b. 3, c. 5, § 70. To make a public enemy, the government of the foreign country must be at war with the United States; for a mob, how numerous soever it may be, or robbers, whoever they may be, are never considered as a public 132. enemy; 2 Marsh. Ins. 508; 3 Esp. 131, A common carrier is exempt from responsibility whenever a loss has been occasioned to the goods in his charge by the act of a In Ecclesiastical Law. A judicial proc-on him to show that the loss was so occasioned; public enemy; but the burden of proof lies tor, or one who is appointed to manage another man's law concerns, is called a proxy. See COMMON Carrier. 3 Munf. 239; 4 Binn. 127; 2 Bail. 157. Ayliffe, Parerg. An annual payment made by the parochial clergy to the bishop, etc., on visitatious. Tomlins Law Dict. In Rhode Island and Connecticut the name of an election or day of voting for officers of government. Webst. Dict. PUBERTY. In Civil Law. The age in boys of fourteen, and in girls of twelve years. Ayliffe, Pand. 63; Hall, Pract. 14; Toullier, Dr. Civ. Fr. tom. 5, p. 100; Inst. 1. 22; Dig. 1. 7. 40. 1; Code, 5. 60. 3; 1 Bla. Com. 436. In the late rebellion, the Federal troops were a public enemy, against whose acts a common carrier within the Confederate lines did not insure; 1 Heisk. 256. PUBLIC HOUSE. A house kept for the entertainment of all who come lawfully and pay regularly; 3 Brewst. 344. It does not include a boarding house; id.; but under a statute a store house in the country is included by this term; 29 Ala. 40; and a barber shop; 30 id. 550; and a broker's office; 31 id. 371. A room to which persons generally are permitted to resort, to play cards, though not every one has access to it, is a public gambling-house. See many cases collected in 22 Alb. L. J. 24, and Abb. Dic. PUBLIC. The whole body politic, or all the citizens of the state. The inhabitants of a particular place: as, the New York public. This term is sometimes joined to other PUBLIC LANDS. Such lands as are terms, to designate those things which have subject to sale or other disposition by the a relation to the public: as, a public officer, a United States, under general laws; 92 U. S. public road, a public passage, à public house. | 761. See 10 Nev. 260. |