PATER. Father. A term used in making genealogical tables.
PATER FAMILLIAS, civil law. One who was sui juris and consequently was not either under parental power, nor under that of a master; a child in his cradle, therefore, could have been pater familias, if he had neither a master nor a father. Lec. Elem. 127, 128.
PATERNA PATERNIS. This expression is used in the French law to signify that in a succession, the property coming from the father of the deceased, descends to his paternal relations.
PATERNAL. That which belongs to the father or comes from him: as, paternal power, paternal relation, paternal estate, paternal line. Vide Line.
PATERNAL POWER. Patria potestas, The, authority lawfully exercised by parents, over their children. It will be proper to consider, 1. Who are entitled to exercise this power. 2. Who are subject to it. 3. The extent of this power.
2. - 1. As a general rule the father is entitled to exert the paternal power over his children. But for certain reasons, when the father acts improperly, and against the interest of those over whom nature and the law have given him authority, he loses his power over them. It being a rule that whenever the good of the child requires it, the courts will deliver the custody of the children to others than the father. And numerous instances may be found where, for good reasons, the custody will be given to the mother.
3. The father of a bastard child has no control over him; the mother has the right to the custody and control of such child. 2 Mass. 109; 12 Mass. 887.
4. - 2. All persous are subject to this power until they arrive at the full age of twenty-one years. A father may, however, to, a certain extent, deprive himself of this unlimited paternal power, first, by delegating it to others, as when he binds his son an apprentice; and, secondly, when he abandons his children, and permits them to act for themselves. 2 Verm. Cas. 290; 2 Watts, 408 4 S. & R. 207; 4 Mass. 675.
5. - 3. The principle upon which the law is, founded as to the extent of paternal power is, that it be exerted for the benefit of the child. The child is subject to the lawful commands of the father to attend to his business, because by being so subjected he acquires that discipline and the practice of attending to business, which will be useful to him in after life. He is liable to proper correction for the same reason. 1 Bouv. Inst. n. 326-33. See Correction; Father; Mother; Parent.
PATERNAL PROPERTY. That which descends or comes from the father and other ascendants, or collaterals of the paternal stock. Domat. Liv. Prel. tit, 3, s. 2.
PATERNITY, The state or condition of a father.
2. The hushand is prima facie presumed to be the father of his wife's chhildren, born during coverture, or within a competent time afterwards pater is est quem nuptim demonstrant. 7 N. S. 553. But this presumption may be rebutted by showing circumstances which render it impossible that the hushand can be the father. 6 Binn. 283; 1 Browne's R. Appx. xlvii.; Hardin's R. 479; 8 East, R. 193; Stra. 51, 940. 4 T. R; 356;. 2 M. & K. 349; 3 Paige's R. 139; I Sim. & Stu. 150; Turn. & Russ. 138; 1 Bouv. Inst. n. 302, et seq.
3. The declarations of both or one of the spouses, however, cannot affect the condition of a child born during the marriage. 7 N. S. 553; 3 Paige's R. 139. Vide Bastard;. Bastardy;, Legitimacy; Maternity; Pregnancy.
PATHOLOGY, med. jur. The science or doctrine of diseases. In cases of homicides, abortions, and the like, it is of great consequence to the legal practitioner to be acquainted, in some degree, with pathology. 2 Chit. Pr. 42, note.
PATRIA. The country; the men of the neighborhood competent to serve on a jury; a jury. This word is nearly synonymous with pais. (.q. v.)
PATRIA POTESTAS, Civil law. Paternal power; (q. v.) the authority which is lawfully exercised by the father over his children.
PATRICIDE. One guilty of killing his father.
PATRIMONIAL. A thing, which comes from the father, and by extension, from the mother or other ancestor.
PATRIMONIUM, civil law. That which is capable, of being inherited.
2. Things capable of being possessed by a single person exclusively of all others, are, in the Roman or civil law, said to be in patrimonio; when incapable of being so possessed they are extra-patrimonium.
3. In general, things may be inherited, but there are some which are said to be extra patrimonium, or which are not in commerce. These are such as are common, as the light of heaven, the air, the sea, and the like. Things public, as rivers, harbors, roads, creeks, ports, arms of the sea, the, sea-shore, highways, bridges, and the like. Things which belong to cities and municipal corporations, as public-squares, streets, market houses, and the like. See, 1 Bouv. Inst. n. 421 to 446.
PATRIMONY. Patrimony is sometimes understood to mean all kinds of property but its more limited signification , includes only such estate, as has descended in the same family and in a still more confined sense, it is only that which has descended or been devised in a direct line from the father, and by extension, from the mother, or other ancestor.
2 . By patrimony, patrimonium, is also understood the father's duty to take care of his children. Sw. pt. 3, 18, n. 31, p. 235.
PATRINUS. A godfather.
PATRON, eccles. law. He who has the disposition and gift of an ecclesiastical benefice. In the Roman law it signified the former master of a freedman. Dig. 2, 4, 8, 1.
PATRONAGE. The right of appointing to office; as the patronage of the president of the United States, if abused, may endanger the liberties of the people.
2. In the ecclesiastical law, it signifies the right of presentation to a church or ecclesiastical benefice. 2 Bl. Com. 21.
PATRONUS, Roman civil law. This word is a modification of the, Latin word pater, father; a denomination applied by Romulus to the first, senators of Rome, and which they always afterwards bore. Romulus at first appointed a hundred of them. Seven years afterwards, in consequence of the association of Tatius to the Romans, a hundred more were appointed, chosen from the Sabines. Tarquinius Priscus increased the number to three hundred. Those appointed by Romulus and Tatius were called patres majorum gentium and the others were called patres minorum gentium. These and their descendants constituted, the nobility of Rome. The rest of the people were called lebeians, every one of whom was obliged to choose one of these fathers as his patron. The relation thus constituted involved important consequences. The plebeian, who was called (cliens) a client, was obliged to furnish the means of maintenance to his chosen patron; to firnish a portion for his patron's daughters; to ransom him and his sons, if captured by an enemy, and pay all sums recovered against him by judgment, of the 'courts. The patron, on the other hand, was, obliged to watch over the interests of his client, whether present or absent to protect his person and property, and especially to defend him in all, actions brought against him for any cause. Neither could accuse or bear testimony against the other, or give contrary votes, &c. The contract was of a sacred nature,; the violation of it was a sort of treason, and punishable as such. According to Cicero, (De Repub. II. 9,) this relation formed an integral part of the governmental system, Et habutit plebem in clientelas principum descri ptum, which he affirms was eminently useful. Blackstone traces the system of vassalage to this. ancient relation of patron and client. It was, in fact, of the same nature as the feudal institutions of the middle ages, designed to maintain order in a rising state by a combination of the opposing interests of the aristocracy and of the common people, upon the principle of reciprocal bonds for mutual interests, Dumazeau, Barreau Romain, III. Ultimately, by force of radical changes in the institution, the word patronus came to signify notbing more than an advocate. Id. IV
PATRUELIS, civil law. A cousin german by the father's side; the son or daughter of a father's brother. Dig. 38i 10, 1.
PATRUUS, citq law. An uncle by the father's side, a father's brother. Dig. 38, 10, 10, Patruus magnus, is a grandfather's brother, grand uncle. Patruus major, is a great-grandfather's brother. Patruus maximus, is a, great-grandfather's father's brother.
PAUPER. One so poor that he must be supported at the public expense.
2. The statutes of the several states make ample provisions for the support of the poor. It is not within the plan of this work even to give an abstract of such extensive legislation. Vide 16 Vin. Ab. 259;Botts on thc Poor Laws; Woodf. Landl. & Ten. 901.
PAVIAGE. Contribution or tax. for paving the streets or highways.
PAWN. A pledge. Vide Pledge.
PAWN-BROKER. One who is lawfully authorized to lend money, and actually lends it, usually in small sums, upon pawn or pledge.
PAWNEE. He who receives a pawn or pledge.
2. The rights of the pawnee are to have the exclusive possession of the pawn; to use it, when it is for the advantage of the pawner, but, in such case, when he makes a profit out of it, he must account for the same. 1 Car. Law Rep. 8 7; 2 Murph.
3. The pawnee is bound to take reasonable care, of the pledge, and to return it to the, pawnor, when the obligation of the latter has been performed.
4. The pawnee has two remedies to enforce his claim; the first, to sell the pawn, after having given due notice; and, secondly, by action. See. 1 Bouv. Inst. n. 1046, 1050.
PAWNOR. One who, being liable to an engagement, gives to the person to whom he is liable, a thing to be held as a security for the payment of his debt or the fulfilment of his liability.
2. The rights of the pawnor are to redeem the pledge, at any time before it is sold.
3. His oblioations are to warrant the title of the pledge, and to redeem it at the time agreed upon. See 1 Bouv. lnst. n. 1045.
PAYEE. The person in whose favor a bill of exchange is made payable. Vide Bills of Exchange.
PAYMENT, contracts. That which is given to execute what has been promised; or it is the fulfilment of a promise. Solvere dicimus cum quis fecit, quod facere promisit. But though this is the general acceptation of the word, yet by payment is understood, every way by which the creditor is satisfied or ought to be, and the debtor, liberated for example, an accord and satisfaction will operate as a payment. If I owe you a sum of money, for the security of which I give you a mortgage, and afterwards you consent to receive in payment a tract of land, from the moment the sale is complete, the first obligation, with all its accessories, is extinct, although you should be afterwards evicted of the property sold. 7 Toull. n. 46 2 Mart. Lo. Rep. N. S. 144; S. C. 2 Harr. Cond. Lo. R. 621, 624.
2. This subject will be considered by taking a separate view of the person by whom the payment may be made; to whom it may be made; when and where it ought to be made; how it ought to be made; the effect of the payment.
3. - 1. The payment may be made by the real debtor and other persons from whom the creditor has a right to demand it; an agent may make payment for his principal; and any mode of payment by the agent, accepted and received as such by the creditor, as an absolate payment will have the effect to discharge the principal, whether known or unknown, and whether it be in the usual course of business or not. If, for example, a factor or other agent should be employed to purchase goods for his principal, or should be entrusted, with money to be paid for him, and, instead of receiving the money, the creditor or seller should take the note of the factor or agent; payable at a future day, as an absolute payment, the principal would be discharged from the debt. 3 Chit. Com. Law, 204; 1 B. & Ald. 14; 6 B. & C. 160; 7 B. & C. 17. When such note has been, received conditionally and not as an absolute payment, it would not have the effect of a payment by the principal; and whether so received or not is a fact to be decided by the jury. 1 Cowen, R, 259, 383; 9 John. R:, 310; 6 Cowen, R. 181; 7 John. R. 311; 15 John. R. 276; 3 Wend. R. 83; 6 Wend. R. 475; 10 Wcnd. R. 271; 5 John., R. 68; 1 Liverm. Ag. 207.
4. Payment may also be made by a third person a stranger to the contract.
5. In the payment of mortgages, it is a20rule, that the personal estate shall be applied to discharge them when made by the testator or intestate himself, to secure the payment of a debt due by bim, because the personal estate was benefited by the money borrowed; and it makes no difference whether the mortgaged lands have been devised, or come to the heir by descent. 2 Cruise, 1 Dig. 147. The testator may, however, exempt the personal estate from the payment, and substitute the real in its place. But when the mortgage was not given by the deceased, but be acquired the real estate subject to it, it never was his debt, and therefore his personal estate is not bound to pay the mortgage debt, but it must be paid by the real estate. 2 Cruise, Dig. 164-8; 3 John. Chan. R. 252; 2 P. Wms. 664, n. 1; 2 Bro. C. C. 57; 2 Bro. C. C. 101, 152; 5 Ves. jr. R. 534; 14 Ves. 417.
6. - 2. It must be made by the creditor himself, or his assigns, if known, or some person authorized by him, either expressly or by implication; as to his factor; Cowp. 251: to his broker, 1 Maul. & Selw. 576; 4 Id. 566; 4 Taunt. 242; 1 Stark. Ca. 238.
7. In the case of partners and other joint creditors, or joint execuutors or administrators, payment to one is generally a valid payment. When an infant is a creditor, payment must be made to his guardian. A payment may be good when made to a person who had no authority to receive it, if the creditor shall afterwards ratify it. Poth. Obl. n. 528.
8. - 3. Time and place of payment: first, as to the time. When the contract is, that payment shall be made at a future time, it is clear that nothing can be demanded until after it has elapsed, or until any other condition to which the payment is subject, has been fulfilled; and in a case where the goods had been sold at six or nine months, the debtor had the option as to those two terms. 5 Taunt, 338. When no time of payment is mentioned in the agreement, the money is payable immediately. 1 Pet. 455; 4 Rand. 346.
9. Secondly, the payment must be made at the place agreed upon in the contract; but in the absence of such agreement, it must be made agreeably to the presumed intention of the parties, which, among other things, may be ascertained by the nature of the thing to be paid or delivered, or by the custom in such cases.
10. - 4. How the payment ought to be made. To make a valid payment, so as to compel the receiver to take it, the whole amount due must be paid; Poth. Obl. n. 499, or n. 534, French edition; when a part is accepted, it is a payment pro tanto. The payment must be made in the thing agreed upon; but when it ought to be made in money, it must be made in the lawful coin of the country, or in bank notes which are of the value they are represented to be. A payment made in bills of an insolvent bank, though both parties may be ignorant of its insolvency, it has been held, did not discharge the debt; 11 Verm. 676; 6 Hill, 340; but see 1 W. & S. 92; 8 Yerg. 175; and a payment in counterfeit bank notes is a nullity. 2 Hawks, 326; 3 Hawks, 568, 6 Hill, 840. Iii general, the payment of a part of a debt, after it becomes due, will not discharge the whole, although there may be an agreement by the debtor that it should have that effect, because there is no consideration for such agreement. But see 3 Kelly's R. 210, contra. A payment of a part, before it is due, will discharge the whole, when so agreed.
11. - 5. The payment, when properly made, discharges the debtor from his obligation. Sometimes a payment extinguishes several obligations; this happens when the thing given to discharge an obligation was the same which is the object of another obligation. Poth. Obl. 552.
12. A single payment may discharge several debts; as, for example if Peter be indebted to Paul one thousand dollars, and Paul being indebted to James, Paul give an order to Peter to pay Tames this money; the payment made by Peter to James discharges both the obligations due by Peter to Paul, and by Paul to James. Poth. Ob. n. 553. This rule, that a payment made in order to acquit or discharge an obligation, extinguishes the other obligations which have the same object, takes place also when there are several debtors as regards the whole of them. If, for example, Peter trust Paul on the credit of James, a payment by Paul discharges both himself and James. Poth. Obl. n. 554.
13. But in case money or other things have been delivered to a person who was supposed to be entitles to them as a creditor, when he was not, this is not a payment, and the whole, if nothing was due, or if the debt was less than the amount paid, the surplus, may be recovered in action for money bad and received. Vide, generally, Bouv. Inst. Index, h. t.; Com. Di g. 473; 8 Com. Dig. 607; 16 Vin 6; 1 Vern. by Raith. 3, 150 n. Yelv. 11 a; 1 Salk. 22; 15 East, 12; 8 East, R. 111; 2 Ves. jr. 11; Phil. Ev. Index, b, t,; Stark. Ev. h. t.; Louis. Code, art. 2129; Ayl. Pand. 565; 1 Sell. Pr. 277; Dane's Ab. Index, h. t.; Toull. lib. 3, tit. 3, c. 5; Pardes. part 2, tit. 2, c. 1 Merl. Repert. h. t.; Chit. Contr. Index, h. t.; 3 Eng. C. L. Rep. 130. As to what transfer will amount to an assignment or a payment and extinguishment of a claim, see 6 John. Ch. R. 395; Id. 425; 2 Ves. jr. 261 18Ves. jr. 384; 1 N. H. Rep. 167; 1 N. H. Rep. 252; 2 N. H. Rep. 300; 3 John. Ch. R. 53.
PAYMENT, pleadings. The name of a plea by which the defendant alleges that he has paid the debt claimed in the declaration; this plea must conclude to the country. 4 Call, 371; Minor, 137. Vide Solvit ad them; Solvit post diem.
PAYS. The country. Trial per pays, is a trial by the country; that is, by jury. Vide Pais.
PAX REGIS, Eng. law. The king's peace. In ancient times there were certain limits which were known by this name. The pax regis, or the verge of the court, as it was afterwards called, extended from the palace gate to the distance of three miles, three furlongs, three acres, nine feet, nine palms and nine barleycorns. Crabb's C. L. 41.
PEACE. The tranquillity enjoyed by a political society, internally, by the good order which reigns among its members, and externally, by the good understanding it has with all other nations. Applied to the internal regulations of a nation, peace imports, in a technical sense, not merely a state of repose and security, as opposed to one of violence and warfare, but likewise a state of public order and decorum. Ham. N. P. 139; 12 Mod. 566. Vide, generally, Bac. Ab. Prerogative, D 4; Hale, Hist. P. C. 160; 3 Taunt. R. 14; 1 B. & A. 227; Peake, R. 89; 1 Esp. R. 294; Harr. Dig. Officer, V 4; 2 Benth. Ev. 319, note. Vide Good behaviour; Surety of the peace.
PECK. A measure of capacity, equal to two gallons. Vide Measure.
PECULATION, civil law. The unlawful appropriation by a depositary of public funds, of the property of the government entrusted to his care, to his own use or that of others. Domat, Suppl. au Droit Public, liv. 3, tit. 5.
PECULIAR, eccles. law. In England, a particular parish or church, which has, within itself, independent of the ordinary jurisdiction, power to grant probate of wills, and the like. 1 Eng. Eccl. R. 72, note; Shelf. on Mar. & Div. 538. Vide Court of peculiars.
PECULIUM, civil law. The savings which were made by a son or slave with the consent of his father or master. Inst. 2, 9, 1; Dig. 15, 1, 5, 3; Poth. ad Pand. lib. 50 , tit. 17, c. 2, art. 3.
2. A master is not entitled to the extraordinary earnings of his apprentice, which do not interfere with his services so as to affect his master's profits. An apprentice was therefore decreed to be entitled to salvage in opposition to his master's claim for it. 2 Cranch, 270.
PECUNIA, civil law, property By the term was understood, 1. Money. 2. Every thing which constituted the private property of an individual, or which was a part of his fortune; a slave' a field, a house, and the like, were so considered.
2. It is in this sense the law of the Twelve Tables said; Uti quisque pater familias legassit super pecunia tutelare rei suae, ita jus esto. In whatever manner a father of a family may have disposed of his property, or of the tutorship of his things, let this disposition be law. 1 Lecons Elem. du Dr. Civ. Rom. 288.
3. Flocks were the first riches of the ancients, and it is from pecus that the words pecania, peculium, peculatus, are derived. Co. Litt. 207.
PECUNIARY. That which relates to money.
2. Pecuniary punishment, is one which imposes a fine on a convict; a pecuniary legacy is one which entitles the legatee to receive a sum of money, and not a specific chattel. In the ecclesiastical law, by pecuniary causes is understood such causes as arise either from the withholding ecclesiastical dues, or the doing or omitting such acts relating to the church, in consequence of which damage accrues to the plaintiff. In England these causes are cognizable in the ecclesiastical courts.
PEDIGREE, descents. A succession of degrees from the origin; it is the state of the family as far as regards the relationship of the different members, their births, marriages and deaths; this term is applied to persons or families, who trace their origin or descent.
2. On account of the difficulty of proving in the ordinary manner by living witnesses, facts which occurred in remote times, hearsay evidence (q. v.) hasbeen admitted to prove a pedigree. 1 Phil. Ev. 186; 1 Stark. Ev. 55; 10 Serg. & Rawle, 383; 2 Supp. to Ves. jr. 110; 8 Com. Dig. 583 1 Pet. 337; 6 Pet., 81; 13 Pet. 209 1 Wheat. 6; 3 Wash. C. C. R. 243; 4 Wash.C.C.R.186; 3Bouv.Inst.n. 3067. Vide Descent; Line.
PEDIS POSSESSIO. A foothold, an actual possession. To constitute adverse possession there must be pedis possessio, or a substantial enclosure. 2 Bouv. Inst. n. 2193; 2 N. & M. 343.
PEDLARS. Persons who travel about the country with merchandise, for the purpose of selling it. They are obliged under the laws of perhaps all the states to take out licenses, and to conform to the regulations which those laws establish.
PEER. Equal. A man's peers are his equals. A man is to be tried by his peers.
2. In England and some other countries, this is a title of nobility; as, peers of the realm. In the United States, this equality is not so much political as civil. A man who is not a citizen, is nevertheless to be tried by citizens.
PEERESS. A noblewoman, the wife of a peer.
PEINE FORTE ET DURE, Eng. law A punishment formerly inflicted in England, on a person who, being arraigned of felony, refused to plead and put himself on his trial, and stubbornly stood mute. He was to be laid down and as much weight was to be put upon him as he could bear, and more, until he died. This barbarous punishment has been abolished. Vide Mute.
PELTWOOL. The wool pulled off the skin or pelt of a dead ram.