PEREMPTORY. Absolute; positive. A final determination to act without hope of renewing or altering. Joined to a substantive, this word is frequently used in law; as peremptory action; F. N. B. 35, 38, 104, 108; peremptory nonsuit; Id. 5, 11; peremptory exception; Bract. lib. 4, c. 20; peremptory undertaking; 3 Chit. Pract. 112, 793; peremptory challenge of jurors, which is the right to challenge without assigning any cause. Inst. 4, 13, 9 Code, 7, 50, 2; Id. 8, 36, 8; Dig. 5, 1, 70 et 73.
PEREMPTORY DEFENCE, equity, pleading. A defence which insists that the plaintiff never had the right to institute the suit, or that if he had, the original right is extinguished or determined. 4 Bouv. Inst. n. 4206.
PEREMPTORY PLEA, pleading. A plea which denies the plaintiff's cause of action. 3 Bouv. Inst. n. 2891. Vide Plea.
PERFECT. Something complete.
2. This term is applied to obligations in order to distinguish those which may be enforeed by law, which are called perfect, from those which cannot be so enforced, which are said to be im perfect. Vide Imperfect; Obligations.
PERFIDY The act of one who has engaged his faith to do a thing, and does not do it, but does the contrary. Wolff, 390.
PERFORMANCE. The act of doing something; the thing done is also called a performance; as, Paul is exonerated from the obligation of his contract by its performance.
2. When it contract has been made by parol, which, under the statute of frauds and perjuries, could not be enforced, because it was not in writing, and the party seeking to avoid it, has received the whole or a part performance of such agreement, he cannot afterwards avoid it; 14 John. 15; S. C. 1 John. Ch. R. 273; and such part performance will enable the other party to prove it aliunde. 1 Pet. C. C. R. 380; 1 Rand. R. 165; 1 Blackf. R. 58; 2 Day, R. 255; 1 Desaus. R. 350; 5 Day, R. 67; 1 Binn. R. 218; 3 Paige, R. 545; 1 John. Ch. R. 131, 146. Vide Specific performance.
PERIL. The accident by which a thing is lost Lee,. Dr. Rom. 911.
PERILS OF THE SEA, contracts. Bills of lading generally contain an exception that the carrier shall not be liable for "perils of the sea." What is the precise import of this phrase is not perhaps very exactly settled. In a 'strict sense, the words perils of the sea, denote the natural accidents peculiar to the sea; but in more than one instance they have been held to extend to events not attributable to natural causes. For instance, they have been held to include a capture by pirates on the high sea and a case of loss by collision by two ships, where no blame is imputable to either, or at all events not to the injured ship. Abbott on Sh. P. 3, C. 4 1, 2, 3, 4, 5, 6; Park. Ins. c, 3; Marsh. Ins. B. 1, c. 7, p. 214; 1 Bell's Comm. 579; 3 Kent's Comm. 251 n. (a); 3 Esp. R. 67.
2. It has indeed been said, that by perils of the sea are properly meant no other than inevitable perils or accidents upon the sea, and, that by such perils or accidents common carriers are, prima facie, excused, whether there be a bill of lading containing the expression of "peril of the sea," or not. 1 Conn. Rep. 487.
3. It seems that the phrase perils of the sea, on the western waters of the United States, signifies and includes perils of the river. 3 Stew. & Port. 176.
4. If the law be so, then the decisions upon the meaning of these words become important in a practical view in all cases of maritime or water carriage.
5. It seems that a loss occasioned by leakage, which is caused by rats gnawing a hole in the bottom of the vessel, is not, in the English law, deemed a loss by peril of the sea, or by inevitable casualty. 1 Wils. R. 281; 4 Campb. R. 203. But if the master had used all reasonable precautions to prevent such loss, as by having a cat on board, it seems agreed, it would be a peril of the sea, or inevitable accident. Abbott on Shipp. p. 3, c. 3, 9; but see 3 Kent's Comm. 243, and note c. In conformity to this rule, the destruction of goods at sea by rats has, in Pennsylvania, been held a peril of the sea, where there has been no default in the carrier. 1 Binn. 592. But see 6 Cowen, R. 266, and 3 Kent's Com. 248, n. c. On the other hand, the destruction of a ship's bottom by worms in the course of a voyage, has, both in America and England, been deemed not to be a peril of the sea, upon the ground, it would seem, that it is a loss by ordinary wear and decay. Park. on Ins. c. 3; 1 Esp. R. 444; 2 Mass. R. 429 but see 2 Cain. R. 85. See generally, Act of God; Fortuitous Event;. Marsh. Ins. eh. 7; and ch. 12, 1.; Hildy on Mar. Ins. 270.
PERIPHRASIS. Circumlocution; the use of other words to express the sense of one.
2. Some words are so technical in their meaning that in charging offences in indictments they must be used or the indictment will not be sustained; for example, an indictment for treason must contain the word traitorously; (q. v.) an indictment for burglary, burglariously; ( q. v.) and feloniously (q. v.) must be introduced into every indictment for felony. 1 Chitty's Cr. Law, 242; 3 Inst. 15; Carth. 319; 2 Hale , P. C. 172; 184;, 4 Bl. Com. 307; Hawk B. 2, c. 25, s. 55; 1 East P. C. 115; Bac. Ab. Indictment, G 1; Com. ]Dig. Indictment, G 6 Cro. C. C. 37.
TO PERISH. To come to an end; to cease to be; to die.
2. What has never existed cannot be said to have perished.
3. When two or more persons die by the same accident, as a shipwreck, no presumption arises that one perished before the other. Vide Death. Survivorship.
PERISHABLE GOODS, Goods which are lessened in value and become worse by being kept. Vide Bona Peritura.
PERJURY, crim. law. This offence at common law is defined to be a wilful false oath, by one who being lawfully required to depose the truth in any judicial proceedings, swears absolutely in a matter material to the point in question, whether he be believed or not.
2. If we analyze this definition we will find, 1st. That the oath must be wilful. 2d. That it must be false. 3d. That the party was lawfully sworn. 4th. That the proceeding was judicial. 6th. That the assertion was absolute. 6th. That the falsehood was material to the point in question.
3. - 1. The intention must be wilful. The oath must be taken and the falsehood asserted with deliberation, and a consciousness of the nature of the statement made; for if it has arisen in consequence of inadvertency, surprise or mistake of the import of the question, there was no corrupt motive; Hawk. B. 1, c. 69, s. 2; but one who swears wilfully and deliberately to a matter which he rashly believes, which is false, and which he had no probable cause for believing, is guilty of perjury. 6 Binn. R. 249. See 1 Baldw. 370; 1 Bailey, 50.
4. - 2. The oath must be false. The party must believe that what he is swearing is fictitious; for, if intending to deceive, he asserts that which may happen to be true, without any knowledge of the fact, he is equally criminal, and the accidental truth of his evidence will not excuse him. 3 Inst. 166 Hawk. B. 1, c. 69, s. 6.
5. - 3. The party must be lawfully sworn. The person by whom the oath is administered must have competent authority to receive it; an oath, therefore, taken before a private person, or before an officer having no jurisdiction, will not amount to perjury. 3 Inst. 166; 1 Johns. R. 498; 9 Cowen, R. 30; 3 M'Cord, R. 308; 4 M'Cord, It. 165; 2 Russ. on Cr. 520; 3 Carr. & Payne, 419; S. C. 14 Eng. Com. Law Rep. 376; 2 Chitt. Cr. Law, 304; 4 Hawks, 182; 1 N. & M. 546; 3 M'Cord, 308; 2 Hayw. 56; 8 Pick. 453.
6. - 4. The proceedings must be judicial. Proceedings before those who are in any way entrusted with the administration of justice, in respect of any matter regularly before them, are considered as judicial for this purpose. 2 Chitt. Crim. C. 303; 2 Russ. on Cr. 518; Hawk. B. 1, c. 69, s. 3. Vide 3 Yeates, R. 414; 9 Pet. Rep. 238. Perjury cannot therefore be committed in a case of which the court had no jurisdiction. 4 Hawks, 182; 2 Hayw. 56; 3 M'Cord, 308; 8 Pick. 453: 1 N. & McC. 546.
7. - 5. The assertion must be absolute. If a man, however, swears that he believes that to be true which he knows to be false, it will be perjury. 2 Russ. on Cr. 518; 3 Wils. 427; 2 Bl. Rep. 881; 1 Leach, 242; 6 Binn. Rep. 249; Lofft's Gilb. Ev. 662.
8. - 6. The oath must be material to the question depending. Where the facts sworn to are wholly foreign from the purpose and altogether immaterial to the matter in question, the oath does not amount to a legal perjury. 2 Russel on Cr. 521; 3 Inst. 167; 8 Ves. jun. 35; 2 Rolle, 41, 42, 369; 1 Hawk. B. 1, c. 69, s. 8; Bac. Ab. Perjury, A; 2 N. & M. 118; 2 Mis. R. 158. Nor can perjury be assigned upon the valuation under oath, of a jewel or other thing, the value of which consists in estimation. Sid. 146; 1 Keble, 510.
9. It is not within the plan of this work to cite all the statutes passed by the general government, or the several states on the subject of perjury. It is proper, however, here to transcribe a part of the 13th section of the act of congress of March 3, 1825, which provides as follows: "If any person in any case, matter, bearing, or other proceeding, when an oath or affirmation shall be required to be taken or administered under or by any law or laws of the United States, shall, upon the taking of such oath or affirmation, knowingly and willingly swear or affirm falsely, every person, so offending, shall be deemed guilty of perjury, and shall, on conviction thereof, be punished by fine, not exceeding two thousand dollars, and by imprisonment and confinement to bard labor, not exceeding five years, according to the aggravation of the offence. And if any person or persons shall knowingly or willingly procure any such perjury to be committed, every person so offending shall be deemed guilty of subornation of perjury, and shall on conviction thereof, be punished. by fine, not exceeding two thousand dollars, and by imprisonment and confinement to bard labor, not exceeding five years, according to the aggravation of the offence."
10. In general it may be observed that a perjury is committed as well by making a false affirmation, as a false oath. Vide, generally, 16 Vin. Abr. 307; Bac. Abr. h. t.; Com. Dig. Justices of the Peace, B 102 to 106; 4 Bl. Com. 137 to 139; 3 Inst. 163 to 168; Hawk. B. 1, c. 69; Russ. on Cr. B. 5, c. 1; 2 Chitt. Cr. L. c. 9; Roscoe on Cr. Ev. h. t.; Burn's J. h. t. Williams' J. h. t.
PERMANENT-TRESPASSES. When trespasses of one and the same kind, are committed on several days, and are in their nature capable of renewal or continuation, and are actually renowed or continued from day to day, so that the particular injury, done on each particular day, cannot be distinguished from what was done on another day, these wrongs are called permanent trespasses. in declaring for such trespasses they may be laid with a continuando. 3 Bl. Com. 212; Bac. Ab. Trespass, B 2; Id. 1 2; 1 Saund. 24, n. 1. Vide Continuando; Trespass.
PERMISSION. A license to do a thing; an authority to do an act which without such authority would have been unlawful. A permission differs from a law, it is a cheek upon the operations of the law.
2. Permissions are express or implied. 1. Express permissions derogate from something which before was forbidden, and may operate in favor of one or more persons, or for the performance of one or more acts, or for a longer or shorter time. 2. Implied, are those, which arise from the fact that the law has not forbidden the act to be done. 3. But although permissions do not operate as laws, in respect of those persons in whose favor they are granted; yet they are laws as to others. See License.
PERMISSIVE. Allowed; that which may be done; as permissive waste, which is the permitting real estate to go to waste; when a tenant is bound to repair he is punishable for permissive waste. 2 Bouv. Inst. n. 2400. See Waste.
PERMIT. A license or warrant to do something not forbidden bylaw; as, to land goods imported into the United States, after the duties have been paid or secured to be paid. Act of Cong. of 2d March, 1799, s. 49, cl. 2. See form of such a permit, Gord. Dig. Appendix, No. II. 46.
PERMUTATION, civil law. Exchange; barter.
2. This contract is formed by the consent of the parties, but delivery is indispensable; for, without it, it mere agreement. Dig. 31, 77, 4; Code, 4, 64, 3.
3. Permutation differs from sale in this, that in the former a delivery of the articles sold must be made, while in the latter it is unnecessary. It agrees with the contract of sale, however, in the following particulars: 1. That he to whom the delivery is made acquires the right or faculty of prescribing. Dig. 41, 3, 4, 17. 2. That the contracting parties are bound to guaranty to each other the title of the things delivered. Code, 4, 64, 1. 3. That they are bound to take back the things delivered, when they have latent defects which they have concealed. Dig. 21, 1, 63. See Aso & Man. Inst. B. 2, t. 16, c. 1; Nutation; Transfer.
PERNANCY. This word, which is derived from the French prendre, to take, signifies a taking or receiving.
PERNOR OF PROFITS. He who receives the profits of lands, &c. A cestui que use, who is legally entitled and actually does receive the profits, i's the pernor of profits.
PERPETUAL. That which is to last without limitation as to time; as, a perpetual statute, which is one without limit as to time, although not expressed to be so.
PERPETUATING TESTIMONY. The act by which testimony is reduced to writing as prescribed by law, so that the same shall be read in evidence in some suit or legal proceedings to be thereafter instituted. The origin of this practice may be traced to the canon law cap. 5, it ut lite non contestata, &c., et ibi. Bockmer, n. 4; 8 Toull. n. 22. Vide Bill to perpetuate testimony.
PERPETUITY, estates. Any limitation tending to take the subject of it out of commerce for a longer period than a life or lives in being, and twenty-one years beyond; and in case of a posthumous child, a few months more, allowing for the term of gestation; Randell on Perpetuities, 48; or it is such a limitation of property as renders it unalienable beyond the period allowed by law. Gilbert on Uses, by Sugden, 260, note.
2. Mr. Justice Powell, in Scattergood v. Edge, 12 Mod. 278, distinguished perpetuities into two sorts, absolute and qualified; meaning thereby, as it is apprehended, a distinction between a plain, direct and palpable perpetuity, and the case where an estate is limited on a contingency, which might happen within a reasonable compass of time, but where the estate nevertheless, from the nature of the limitation, might be kept out of commerce longer than was thought agreeable to the policy of the common law. But this distinction would not now lead to a better understanding or explanation of the subject; for whether an estate be so limited that it cannot take effect, until a period too much protracted, or whether on a contingency which may happen within a moderate compass of time, it equally falls within the line of perpetuity and the limitation is therefore void; for it is not sufficient that an estate may vest within the time allowed, but the rule requires that it must. Randell on Perp. 49. Vide Cruise, Dig. tit. 32, c. 23; 1 Supp. to Ves. Jr. 406; 2 Ves. Jr. 357; 3 Saund. 388 h. note; Com. Dig. Chancery, 4 G 1; 3 Chan. Cas. 1; 2 Bouv. Inst. n. 1890.
PERQUISITES. In its most extensive sense, perquisites signifies anything gotten by industry, or purchased with money, different from that which descends from a father or ancestor. Bract. lib. 2, c. 30, n. 8; et lib. 4, c. 22. In a more limited sense it means something gained by a place or office beyond the regular salary or fee.
PERSON. This word is applied to men, women and children, who are called natural persons. In law, man and person are not exactly-synonymous terms. Any human being is a man, whether he be a member of society or not, whatever may be the rank he holds, or whatever may be his age, sex, &c. A person is a man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes. 1 Bouv. Inst. n. 137.
2. It is also used to denote a corporation which is an artificial person. 1 Bl. Com. 123; 4 Bing. 669; C. 33 Eng. C. L R. 488; Wooddes. Lect. 116; Bac. Us. 57; 1 Mod. 164.
3. But when the word "Persons" is spoken of in legislative acts, natural persons will be intended, unless something appear in the context to show that it applies to artificial persons. 1 Scam. R. 178.
4. Natural persons are divided into males, or men; and females or women. Men are capable of all kinds of engagements and functions, unless by reasons applying to particular individuals. Women cannot be appointed to any public office, nor perform any civil functions, except those which the law specially declares them capable of exercising. Civ. Code of Louis. art. 25.
5. They are also sometimes divided into free persons and slaves. Freemen are those who have preserved their natural liberty, that is to say, who have the right of doing what is not forbidden by the law. A slave is one who is in the power of a master to whom he belongs. Slaves are sometimes ranked not with persons but things. But sometimes they are considered as persons for example, a negro is in contemplation of law a person, so as to be capable of committing a riot in conjunction with white men. 1 Bay, 358. Vide Man.
6. Persons are also divided into citizens, (q. v.) and aliens, (q. v.) when viewed with regard to their political rights. When they are considered in relation to their civil rights, they are living or civilly dead; vide Civil Death; outlaws; and infamous persons.
7. Persons are divided into legitimates and bastards, when examined as to their rights by birth.
8. When viewed in their domestic relations, they are divided into parents and children; hushands and wives; guardians and wards; and masters and servants son, as it is understood in law, see 1 Toull. n. 168; 1 Bouv. Inst. n. 1890, note.
PERSONABLE. Having the capacities of a person; for example, the defendant was judged personable to maintain this action. Old Nat. Brev. 142. This word is obsolete.
PERSONAL. Belonging to the person.
2. This adjective is frequently employed in connection with substantives, things, goods, chattels, actions, right, duties, and the like as personal estate, put in opposition to real estate; personal actions, in contradistinction to real actions; personal rights are those which belong to the person; personal duties are those which are to be performed in person.
PERSONAL ACTIONS. Personal actions are those brought for the specific goods and chattels; or for damages or other redress for breach of contract or for injuries of every other description; the specific recovery of lands, tenements and hereditaments only excepted. Vide Actions, and 1 Com. Dig. 206, 450; 1 Vin. Ab. 197; 3 Bouv. Inst. n. 2641, et. seq.
PERSONAL LIBERTY. Vide Liberty.
PERSONAL PROPERTY. The right or interest which a man has in things personal; it consists of things temporary and movable, and includes all subjects of property not of a freehold nature, nor descendable to the heirs at law. Things of a movable nature, when a right can be had in them, are personal property, but some things movable are not the subject of property; as light and air. Under the term personal property, is also included some property which is in its nature immovable, distinguished by the name of chattels real, as an estate for years; and fixtures (q . v.) are sometimes classed among personal property. A crop growing in the ground is considered personal property. so far as not to be considered an interest in land, under the statute of frauds. 11 East, 362; 1 Shopl. 337; 5 B & C. 829; 10 Ad. & E. 753; 9 B. & C. 561; sed vide 9 B. & C. 561.
2. It is a general principle of American law, that stock held in corporations, is to be considered as personal property; Walk. Introd. 211; 4 Dane's Ab. 670; Sull. on Land Tit. 71; 1 Hill. Ab. 18; though it was held that such stock was real estate; 2 Conn. R. 567; but, this being found inconvenient, the law was changed by the legislature.
3. Property in personal chattels is either absolute or qualified; absolute, when the owner has a complete title and full dominion over it; qualified, when -he has a temporary or special interest, liable to be totally divested on the happening of some particular event. 2 Kent, Com. 281.
4. Considered in relation to its use, personal property is either in possession, that is, in the actual enjoyment of the owner, or, in action, that is, not in his possession, but in the possession of another, and recoverable by action.
5. Title to personal property is acquired. 1st. By original acquisition by occupancy; as, by capture in war; by finding a lost thing. 2d. By original acquisition; by accession. 3d. By original acquisition, by intellectual labor; as, copyrights and patents for inventions. 4th. IV transfer, which is by act of law. 1. By forfeiture. 2. By judgment. 3. By insolvency. 4. By intestacy. 5th. By transfer, by act of the party. 1 . Gifts. 2. Sale. Vide, generally, 16 Vin. Ab. 335; 8 Com. Dig. 474; Id. 562; 1 Supp. to Ves. Jr. 49, 121, 160, 198, 255, 368, 9, 399, 412, 478; 2 Ibid. 10, 40, 129, 290, 291, 341; 1 Vern. 3, 170, 412; 2 Salk. 449; 2 Ves. Jr. 59, 336, 176, 261, 271, 683; 7 Ves. 453. See Pew; Property; Real property.
PERSONAL REPRESENTATIVES. These words are construed to mean the executors or administrators of the person deceased. 6 Mad. R. 159; 2 Mad. R. 155; 5 Ves. 402; 1 Madd. Ch. 108.
PERSONAL SECURITY. The legal and uninterrupted enjoyment by a man of his life, his body, his health and his reputation. 1 Bouv. Inst. n. 202.
PERSONALITY OF LAWS. Those laws which regulate the condition, state, or capacity of persons. The term is used in opposition to those laws which concern property, whether real or personal, and things. See Story, Confl. of L. 23; and Reality of laws.
PERSONAITY. An abstract of personal; as, the action is in the personalty, that is, it is brought against a person for a personal duty which he owes. It also signifies what belongs to the person; as, personal property.
TO PERSONATE, crim. law. The act of assuming the character of another without lawful authority, and, in such character, doing something to his prejudice, or to the prejudice of another, without his will or consent.
2. The bare fact of personating another for the purpose of fraud, is no more than a cheat or misdemeanor at common law, and punishable as such. 2 East, P. C. 1010; 2 Russ. on Cr. 479.
3. By the act of congress of the 30th April, 1790, s. 15, 1 Story's Laws U. S. 86, it is enacted, that " if any person shall acknowledge, or procure to be acknowledged in any court of the United States, any recognizance, bail or judgment, in the name or names of any other person or persons not privy or consenting to the same, every such person or persons, on conviction thereof, shall be fined not exceeding five thousand dollars, or be imprisoned not exceeding seven years, and whipped not exceeding thirty-nine stripes, Provided nevertheless. that this act shall not extend to the acknowledgment of any judgment or judgments by any attorney or attorneys, duly admitted, for any person or persons against whom any such judgment or judgments shall be bad or given." Vide, generally, 2 John. Cas. 293; 16 Vin. Ab. 336; Com. Dig. Action on the case for a deceit, A 3.
TO PERSUADE, PERSUADING. To persuade is to induce to act: persuading is inducing-others to act. lnst. 4, 6, 23; Dig. 11, 3, 1, 5.
2. In the act of the legislature which declared that " if any person or persons knowingly and willingly shall aid or assist any enemies at open war with this state, &c. by persuading others to enlist for that purpose, &c., he shall be adjudged guilty of high treason;" the word persuading, thus used; means to succeed: and there must be an actual enlistment, of the person persuaded in order to bring the, defendant within the intention of the clause. 1 Dall. R. 39; Carr. Crim. L 237; 4 Car. & Payne, 369 S. C. 1 9 E. C L. R. 425; 9 Car. & P. 79; and article Administering; vide 2 Lord Raym. 889. It may be fairly argued, however, that the attempt to persuade without success would be a misdemeanor. 1 Russ. on Cr. 44.
3. In England it has been decided, that to incite and procure a person to commit suicide, is not a crime for which the party could be tried. 9 C. & P. 79; 38 E. C. L. R. 42; M. C. C. 356. Vide Attempt; Solicitation.
PERSUASION. The act of influencing by expostulation or request. While the persuasion is confined within those limits which leave the mind free, it may be used to induce another to make his will, or even to make it in his own favor; but if such persuasion should so far operate on the mind of the testator, that he would be deprived of a perfectly free will, it would vitiate the instrument. 3 Serg. & Rawle, 269; 5 Serg. & Rawle, 207; 13 Serg. & Rawle, 323.
PERTINENT, evidence. Those facts which tend to prove the allegations of the party offering them, are called pertinent; those which have no such tendency are called impertinent, 8 Toull. n. 22. By pertinent is also meant that which belongs. Willes, 319.
PERTURBATION. This is a technical word which signifies disturbance, or infringement of a right. It is usually applied to the disturbance of pews, or seats in a church. In the ecclesiastical courts actions for these disturbances are technically called "suits for perturbation of seat." 1 Phillim. 323. Vide Pew.
PESAGE, mer. law. In England a toll bearing this name is charged for weighing avoirdupois goods other than wool. 2 Chit. Com. Law. 16.