PREGNANT, pleading. A fulness in the pleadings which admits or involves a matter which is favorable to the opposite party. 2. It is either an affirmative pregnant, or negative pregnant. See Affirmative pregnant; Negative pregnant.
PREJUDICE. To decide beforehand; to lean in favor of one side of a cause for some reason or other than its justice.
2. A judge ought to be without prejudice, and he cannot therefore sit in a case where he has any interest, or when a near relation is a partt, or where he has been of counsel for one of the parties. Vide Judge.
3. In the civil law prejudice signifies a tort or injury; as the act of one man should never prejudice another. Dig. 60, 17, 74.
PRELATE. The name of an ecclesiastical officer. There are two orders of prelates; the first is composed of bishops, and the second, of abbots, generals of orders, deans, &c.
PRELEVEMENT, French law. The portion which a partner is entitled to take out of the assets of a firm before any sion shall be made of the remainder of the assets, between the partners.
2. The partner who is entitled to a prelevement is not a creditor of the partnership; on the contrary he is a part owner for if the assets should be deficient, a creditor has a preference over the partner; on the other hand, should the assets yield any profit, the partner is entitled to his portion of it, whereas the creditor is entitled to no part of it, but he has a right to charge interest, when he is in other respects entitled to it.
PREHENSION. The lawful taking of a thing with an intent to, assert a right in it.
PRELIMINARY. Something which precedes, as preliminaries of peace, which are the first sketch of a treaty, and contain the principal articles on which both parties are desirous of concluding, and which are to serve as the basis of the treaty.
PREMEDITATION. A design formed to commit a crime or to do some other thing before it is done.
2. Premeditation differs essentially from will, which constitutes the crime, because it supposes besides an actual will, a deliberation and a continued persistance which indicate more perversity. The preparation of arms or other instruments required for the execution of the crime, are indications of a premeditation, but are not absolute proof of it, as these preparations may have been intended for other purposes, and then suddenly changed to the performance of the criminal act. Murder by poisoning must of necessity be done with premeditation. See Aforethought; Murder.
PREMISES. that which is put before. The word has several significations; sometimes it means the statements which have been before made; as, I act upon these premises; in this sense, this word may comprise a variety of subjects, having no connexion among themselves; 1 East, R. 456; it signifies a formal part of a deed; and it is made to designate an estate.
PREMISES, estates. Lands and tenements are usually, called premises, when particularly spoken of; as, the premises will be sold without reserve. 1 East, R. 453.
PREMISES, conveyancing. That part in the beginning of a deed, in which are set forth the names of the parties, with their titles ana additions, and in which are recited such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the contract then entered into is founded; and it is here also the consideration on which it is made, is set down, and the certainty of the thing granted. 2 Bl. Com. 298. The technical meaning of the premises in a deed, is every thing which precedes the habendum. 8 Mass. R. 174; 6 Conn. R. 289. Vide Deed.
PREMISES, equity pleading. That part of a bill usually denominated the stating part of the bill. It contains a narrative of the facts and circumstances of the plaintiff's case, and the wrongs of which he complains, and the names of the persons by whom done, and against whom he seeks redress. Coop. Eq. Pl..9; Bart. Suit in equity, 27; Mitf. Eq. Pl. by Jeremy, 43; Story, Eq. Pl. 27; 4 Bouv, Inst. n. 4158.
PREMIUM, contracts. The consideration paid by the insured to the insurer for making an insurance. It is so called because it is paid primo, or before the contract shall take effect. Poth. h. t. n. 81; Marah. Inst. 234.
2. In practice, however, the premium is not always paid when the policy is underwritten; for insurances are frequently effected by brokers, and open accounts are kept between them and the underwriters, in which they make themselves debtors for all premiums;, and sometimes notes or bills are given for the amount of the premium.
3. The French writers, when they speak of the consideration given for maritime loans, employ a variety of words in order to distinguish it according to the nature of the case. Thus, they call it interest when it is stipulated to be paid by the month or at other stated periods. It is a premium, when a gross sum is to be paid at the end of a voyage, and here the risk is the principal object which they have in view. When the sum is a percentage on the money lent, they denominate it exchange, considering it in the light of money lent in one place to be returned in another, with a difference in amount between the sum borrowed and that which is paid, arising from the difference of time and place. When they intend to combine these various shades into one general denomination, they make use of the term maritime profit, to convey their meaning. Hall on Mar. Loans, 56, n. Vide Park, Ills. h. t. Poth. h. t.; 3 Kent, Com. 285; 15 East, R. 309, Day's note, and the cases there cited.
PREMIUM PUDICITIAE, contracts. Literally the price of chastity.
2. This is the consideration of a contract by which a man promises to pay to a woman with whom he has illicit intercourse a certain sum of money. When the contract is made as the payment of past cohabitation, as between the parties, it is good, and will be enforced against the obligor, his heirs, executors and administrators, but it cannot be paid, on a deficiency of assets, until all cred itors are paid, though it has a preference over the heir, next of kin, or devisee. If the contract be for future cohabitation, it is void. Chit. Contr. 215; 1 Story, Eq. Jur. 296; 5 Ves. 286; 2 P. Wms. 432; 1 Black. R. 517; 3 Burr. 1568; 1 Fonbl. Eq, B. 1, a. 4, 4, and notes s and y; 1 Ball & Beat. 360; 7 Ves. 470; 11 Ves. 535; Rob. Fraud. Conv. 428; Cas. Temp. Talb. 153; and the cases there cited; 6 Ham. R. 21; 5 Cowen, R. 253; Harper, R. 201; 3 Mont. R. 35; 2 Rev. Const. Ct; 279; 11 Mass. R. 368; 2 N. & M. 251.
PRENDER or PRENDRE. To take. This word is used to signify the right of taking a thing before it is offered,; hence the phrase of law, it lies in render, but not in prender. Vide A prendre; and Gale and Whatley on Easements, 1.
PROENOMEN. The first or Christian name of a person; Benjamin is the proenomen of Benjamin Franklin. See Cas. temp. Hard. 286; 1 Tayl. 148.
PREPENSE. The same as aforethought. (q. v.) Vide 2 Chit. Cr. Law, *784.
PREROGATIVE, civil law. The privilege, preeminence, or advantage which one person has over another; thus a person vested with an office, is entitled to all the rights, privileges, prerogatives, &c. which belong to it.
PREROGATIVE, English law. The royal prerogative is an arbitrary power vested in the executive to do good and not evil. Rutherf. Inst. 279; Co. Litt. 90; Chit. on Prerog.; Bac. Ab. h. t.
PREROGATIVE COURT, eccles. law. The name of a court in England in which all testaments are proved and administrations granted, when the deceased has left bona notabilia in the province in some other diocese than that in which he died. 4 Inst. 335.
2. The testamentary courts of the two archbishops, in their respective provinces, are styled prerogative courts, from the prerogative of each archbishop to grant probates and administrations, where there are bona, notabilia; but still these are only inferior and subordinate jurisdictions; and the style of these courts has no connexion with the royal prerogative. Derivatively, these courts are the king's ecclesiastical courts; but immediately, they are only the courts of the ecclesiastical ordinary. The ordinary, and not the crown, appoints the judges of these courts; they are subject to the control of the king's courts of chancery and common law, in case they exceed their jurisdiction; and they are subject in some instances to the command of these courts, if they decline to exercise their jurisdiction, when by law they ought to exercise it. Per Sir John Nicholl, In the Goods of George III.; 1 Addams, R. 265; S. C. 2 Eng. Eccl. R. 112.
PRESCRIPTIBLE. That which is subject to prescription.
PRESCRIPTION. The manner of acquiring property by a long, honest, and uninterrupted possession or use during the time required by law. The possession must have been possessio longa, continua, et pacifica, nec sit ligitima interruptio, long, continued, peaceable, and without lawful interruption. Domat, Loix Civ. liv. 3, t. 29, s. 1; Bract. 52, 222, 226; Co. Litt. 113, b; Pour pouvoir prescire, says the Code Civil, 1. 3, t. 20, art. 22, 29, il faut une possession continue et non interrompue, paisible, publique, et a titre de proprietaire. See Knapp's R. 79.
2. The law presumes a grant before the time of legal memory when the party claiming by prescription, or those from whom he holds, have had adverse or uninterrupted possession of the property or rights claimed by prescription. This presumption may be a mere fiction, the commencement of the user being tor-tious; no prescription can, however, be sustained, which is not consistent with such a presumption.
3. Twenty years uninterrupted user of a way is prima facie evidence of a prescrptive right. 1 Saund. 323, a; 10 East, 476; 2 Br. & Bing. 403; Cowp. 215; 2 Wils. 53. The subject of prescription are the several kinds of incorporeal rights. Vide, generally, 2 Chit. Bl. 35, n. 24; Amer. Jurist, No. 37, p. 96; 17 Vin. Ab. 256; 7 com. Dig. 93; Rutherf. Inst. 63; Co. Litt. 113; 2 Conn. R. 584; 9 conn. R. 162; Bouv. Inst. Index, h. t.
4. The Civil Code Louisiana, art. 3420, defines a prescription to be a manner of acquiring property, or of discharging debts, by the effect of time, and under the conditions regulated by law. For the law relating to prescription in that state, see Code, art. 8420 to 3521. For the difference between the meaning of the term prescription as understood by the common law, and the same term in the civil law, see 1 Bro. Civ. Law, 246.
5. The prescription which has the effect to liberate a creditor, is a mere bar which the debtor may oppose to the creditor, who has neglected to exercise his rights, or procured them to be acknowledged during the time prescribed by law. The debtor acquires this right without any act on his part, it resalts entirely from the negligence of the creditor. The prescription does not extinguish the debt, it merely places a bar in the hands of the debtor, which he may use or not at his choice against the creditor. The debtor may therefore abandon this defence, which has been acquired by mere lapse of time, either by paying the debt, or acknowledging it. If he pay it, he cannot recover back the money so paid, and if he acknowledge it, he may be constrained to pay it. Poth. Intr. au titre xiv. des Prescriptions, Bect. 2. Vide Bouv. Inst. Theo. pars prima, c. 1, art. 1, 4, s. 3; Limitations.
PRESENCE. The existence of a person in a particular place.
2. In many contracts and judicial proceedings it is necessary that the parties should be present in order to reader them valid; for example, a party to a deed when it is executed by himself, must personally acknowledge it, when such acknowledgment is required by law, to give it its full force aud effect, and his presence is indispensable, unless, indeed, another person represent him as his attoruey, having authority from him for that purpose.
3. In the criminal law, presence is actual or constructive. When a larceny is committed in a house by two men, united in the same design, and one of them goes into the house, arid commits the crime, while the other is on the outside watching to prevent a surprise, the former is actually, an the latter constructively, present.
4. It is a rule in the civil law, that he who is incapable of giving his consent to an act, is not to be considered present, although he be actually in the place; a lunatic, or a man sleeping, would not therefore be considered present. Dig. 41, 2, 1, 3. And so, if insensible; 1 Dougl. 241; 4 Bro. P. R. 71; 3 Russ. 441; or if the act were done secretly so that he knew nothing of it. 1 P. Wms. 740.
5. The English statute of fraud, 5, directs that all devises and bequests of any lands or tenements shall be attested or subscribed in the presence of said devisor. Under this statute it has been decided that an actual presence is not indispensable, but that where there was a constructive presence it was sufficient; as, where the testatrix executed the will in her carriage stand- ing in the street before the office of her solicitor, the witness retired into the office to attest it, and it being proved that the carriage was accidentally put back, so that she was in a situation to see the witness sign the will through the window of the office. Bro. Ch. C. 98; see 2 Curt. R. 320; 2 Salk. 688; 3 Russ. R. 441; 1 Maule & Selw. 294; 2 Car.& P. 491 2 Curt. R. 331. Vide Constructive.
PRESENT. A gift, or wore properly the thing given. It is provided by the constitution of the United States, art. 1, s. 9, n, 7, that "no person holding any office of profit or trust under them, [the United States] shall, without the consent of congress, accept of any present, emolument, or office, or title of any kind whatever, from any king, prince, or foreign state."
PRESENTS. This word signifies the writing then actually made and spoken of; as, these presents; know all men by these presents, to all to whom these presents shall come.
PRESENTATION, eccl. law. The act of a patron offering his clerk to the bishop of the diocese to be instituted in a church or benefice.
PRESENTEE, eccles. law., A clerk who has been presented by his patron to a bishop in order to be instituted in a church.
PRESENTMENT, crim. law, practice. The written 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 government; 4 Bl. Com. 301; upon such presentment, when 'proper, the officer emloyed to prosecute, afterwards frames a till of indictment, which is then sent to the grand jury, and they find it to be a true bill. In an extended sense presentments include not only what is properly so called, but also inquisitions of office, and indictments found by a grand jury. 2 Hawk. c. 25, s. 1.
2. The difference between a presentment and an inquisition, (q. v.) is this, that the former is found by a grand jury authorized to inquire of offences generally, whereas the latter is an accusation found by a jury specially returned to inquire concerning the particular offence. 2 Hawk. c. 25, s. 6. Vide, generally, Com. Dig. Indictment, B Bac. Ab. Indictment, A 1 Chit. Cr. Law, 163; 7 East, R. 387 1 Meigs. 112; 11 Humph. 12.
3. The writing which contains the accusation so presented by a grand jury, is also called a presentment. Vide 1 Brock. C. C. R. 156; Grand Jury.
PRESENTMENT, contracts. The production of a bill of exchange or promissory note to the party on whom the former is drawn, for his acceptance, or to the person bound to pay either, for payment.
2. The holder of a bill is bound, in order to hold the parties to it responsible to him, to present it in due time for acceptance, and to give notice, if it be dishonored, to all tho parties he intends to hold liable. And when a bill or note becomes payable, it must be presented for payment.
3. The principal circumstances concerning presentment, are the person to whom, the place where, and the time when, it is to be made.
4. - 1. In general the presentment for payment should be made to the maker of a note, or the drawee of a bill for acceptance, or to the acceptor, for payment; but a presentment made at a particular place, when pavable there, is in general sufficient. A personal demand on the drawee or acceptor is not necessary; a demand at his usual place of residence of his wife or other agent is sufficient. 2 Esp. Cas. 509; 5 Esp. Cas. 265 Holt's N. P. Cas. 313.
5. - 2. When a bill or note is made payable at a particular place, a presentment, as we have seen, may be made there; but when the acceptance is general, it must be presented at the house or place of business of the acceptor. 3 Kent, Com. 64, 65.
6. - 3. In treating of the time for presentment, it must be considered with reference, 1st. To a presentment for acceptance. 2d. To one for payment. 1st. When the bill is payable at sight, or after sight, the presentment must be made in reasonable time; and what this reasonable time is depends upon the circumstances of each case. 7 Taunt. 397; 1 Dall. 255; 2 Dall. 192; Ibid. 232; 4 Dall. 165; Ibid. 129; 1 Yeates, 531; 7 Serg. & Rawle, 324; 1 Yeates 147. 2d. The presentment of a note or bill for payment ought to be made on the day it becomes due, and notice of non-payment given, otherwise the holder will lose the security of the drawer and endorsers of a bill and the endorsers of a promissory note, and in case the note or bill be payable at a particular place and the money lodged there for its payment, the holder would probably have no recourse against the maker or acceptor, if he did not present them on the day, and the money should be lost. 5 Barn. & Ald. 244. Vide 5 Com. Dig. 134; 2 John. Cas. 75; 3 John. R. 230; 2 Caines' Rep. 343; 18 John. R. 230; 2 John. R. 146, 168, 176; 2 Wheat. 373; Chit. on Bills, Index, h. t.; Smith on Mer. Law, 138; Byles on Bills, 102.
7. The excuses for not making a presentment are general or applicable to all persons, who are endorsers; or they are special and applicable to the particular' endorser only.
8. - 1. Among the former are, 1. Inevitable accident or overwhelming calamity; Story on Bills, 308; 3 Wend. 488; 2 Smith's R. 224. 2. The prevalence of a malignant disease, by which the ordinary operations of business are suspended. 2 John. Cas. 1; 3 M. & S. 267; Anth. N. P. Cas. 35. 3. The breaking out of war between the country of the maker and that of the holder. 4. The occupation of the country where the note is payable or where the parties live, by a public enemy, which suspends commercial operations and intercourse. 8 Cranch, 155 15 John. 57; 16 John. 438 7 Pet. 586 2 Brock. 20; 2 Smith's R. 224. 51. The obstruction of the ordinary negotiations of trade by the vi's maj or. 6. Positive interdictions and public regulations of the state which suspend commerce and intercourse. 7. The utter impracticability of finding the maker, or ascertaining his place of residence. Story on Pr. N. 205, 236, 238, 241, 264.
9. - 2. Among the latter or special excuses for not making a presentment may be enumerated the following: 1. The receiving the note by the holder from the payee, or other antecedent party, too late to make a due presentment; this will be an excuse as to such party. 16 East, 248; 7 Mass. 483; Story, P. N. 201, 265; 11 Wheat. 431 2 Wheat. 373. 2. The note being an accommodation note of the maker for the benefit of the endorser. Story on Bills, 370; see 2 Brock. 20; 7 Harr. & J. 381; 7 Mass. 452; 1 Wash. C. C. R. 461; 2 Wash. C. C. R. 514; 1 Rayw. 271; 4 Mason, 113; 1 Har. & G. 468; 1 Caines, 157; 1 Stew. 175; 5 Pick. 88; 21 Pick. 327. 3. A special agreement by which the endorser waives the presentment. 8 Greenl. 213; 11 Wheat. 629; Story on Bills, 371, 373; 6 Wheat. 572. 4. The receiving security or money by an endorser to secure himself from loss, or to pay the note at maturity. In this case, when the indemnity or money is a full security for the amount of the note or bill, no presentment is requisite. Story on Bills, 374; Story on P. N. 281; 4 Watts, 328.; 9 Gill & John. 47; 7 Wend. 165; 2 Greenl. 207; 5 Mass. l70; 5 Conn. 175. 5. The receiving the note by the holder from the endorser, as a collateral security for another debt. Story on Pr. Notes, 284; Story on Bills, 372; 2 How. S. C. R. 427, 457.
10. A want of presentment may be waived by the party to be affected, after a full knowledge of the fact. 8 S. & R. 438; see 6 Wend. 658; 3 Bibb, 102; 5 John. 385; 4 Mass. 347; 7 Mass. 452; Wash. C. C. R. 506; Bac. Ab. Merchant, &c. M. Vide, generally, 1 Hare & Wall. Sel. Dec. 214, 224. See Notice of dishonor.
PRESERVATION. keeping safe from harm; avoiding injury. This term always presupposes a real or existing danger.
2. A jettison, which is always for the preservation of the remainder of the cargo, must therefore be made only when there is a real danger existing. See Average; Jettison.