PUBLIC. By the term the public, is meant the whole body politic, or all the citizens of the state; sometimes it signifies the inhabitants of a particular place; as, the New York public.
2. A distinction has been made between the terms public and general, they are sometimes used as synonymous. The former term is applied strictly to that which concerns all the citizens and every member of the state; while the latter includes a lesser, though still a large portion of the community. Greenl. Ev. 128.
3. When the public interests and its rights conflict with those of an individual, the latter 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.
4. This term is sometimes joined to other terms, to designate those things which have a relation to the public; as, a public officer, a public road, a public passage, a public house.
PUBLIC DEBT. That which is due or owing by the government.
2. 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." It has invariably been the policy since the Revolution, to do justice to the creditors of the government. The public debt has sometimes been swelled to a large amount, and at other times it has been reduced to almost nothing.
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. Vatt. 1. 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 enemy. 2 Marsh. Ins. 508; 3 Esp. R. 131, 132.
2. A common carrier is exempt from responsibility, whenever a loss has been occasioned to the goods in his charge by the act of a public enemy, but the burden of proof lies on him to show that the loss was so occasioned. 3 Munf. R. 239; 4 Binn. 127; 2 Bailey, 1 57. Vide Enemy; People.
PUBLIC PASSAGE. This term is synonymous with public highway, with this difference; by the latter, is understood a right to pass over the land of another; by the former is meant the right of going over the water which is on another's land. Carth. 193; Hamm. N. P. 195. See Passage.
PUBLICAN, civil law. A farmer of the public revenue; one who held a lease of some property from the public treasury. Dig. 39, 4, 1, 1; Id. 39, 4, 12, 3; Id. 39, 4, 13.
PUBLICATION. The act by which a thing is made public.
2. It differs from promulgation, (q. v.) and see also Toullier, Dr. Civ. Fr. Titre Preliminaire, n. 59, for the difference in the meaning of these two words.
3. Publication has different meanings. When applied to a law, it signifies the rendering public the existence of the law; when it relates to the opening the depositions taken in a case in chancery, it means that liberty is given to the officer in whose custody the depositions of witnesses in a cause are lodged, either by consent of parties, or by the rules or orders of the court, to show the depositions openly, and to give out copies of them. Pract. Reg. 297; 1 Harr. Ch. Pr. 345; Blake's Ch. Pr. 143. When it refers to a libel, it is its communication to a second or third person, or a greater number. Holt on Libels, 254, 255, 290; Stark. on Slander, 350; Holt's N. P. Rep. 299; 2 Bl. R. 1038; 1 Saund. 112, n. 3. And when spoken of a will, it signifies that the testator has done some act from which it can be concluded that he intended the instrument to operate as his will. Cruise, Dig. tit. 38, c. 5, s. 47; 3 Atk. 161; 4 Greenl. R. 220; 3 Rawle, R. 15; Com. Dig. Estates by devise, E 2. Vide Com. Dig. Chancery, Q; Id. Libel, B 1; Ibid. Action upon the case for defamation, G 4; Roscoe's Cr. Ev. 529; Bac. Ab. Libel, B; Hawk. P. C. B. 1, c. 73, s. 10; 3 Yeates' R. 128; 10 Johns. R. 442. As to the publication of an award, see 6 N. H. Rep. 36. See, generally, Bouv. Inst. Index, h. t.
PUBLICIANA, civil law. The name of an action introduced by the proctor Publicius, the object of which was to recover a thing which had been lost. Inst. 4, 6, 4; Dig. 6, 2 1, 16 et 17. Its effects were similar to those of our action of trover.
PUBLICITY. The doing of a thing in the view of all persons who choose to be present.
2. The law requires that courts should be open to the public, there can therefore be no secret tribunal, except the grand jury (q. v.) and all judgments are required to be given in public.
3. Publicity must be given to the acts of the legislature before they can be in force, but in general their being recorded in a certain public office is evidence of their publicity. Vide Promulgation; Publication.
PUBLISHER. One who does by himself or his agents make a thing publicly known; one engaged in the circulation of books, pamphlets, and other papers.
2. The publisher of a libel is responsible as if he were the author of it, and it is immaterial whether he has any knowledge of its contents or not; 9 Co. 59; Hawk. P. C. c. 73, 10; 4 Mason, 115; and it is no justification to him that the name of the author accompanies the libel. 10 John, 447; 2 Moo. & R. 312.
3. When the publication is made by writing or printing, if the matter be libelous, the publisher may be indicted for a misdemeanor, provided it was made by his direction or consent, but if he was the owner of a newspaper merely, and the publication was made by his servants or agents, without any consent or knowledge on his part, he will not be liable to a criminal prosecution. In either case he will be liable to an action for damages sustained by the party aggrieved. 7 John. 260.
4. In order to render the publisher amenable to the law, the publication must be maliciously made, but malice will be presumed if the matter be libelous. This presumption, however, will be rebutted, if the publication be made for some lawful purpose, as, drawing up a bill of indictment, in which the libelous words are embodied, for the purpose of prosecuting the libeler; or if it evidently appear the publisher did not, at the time of publication, know that the matter was libelous as, when a person reads a libel presence of others, without beforehand knowing it to be such. 9 Co. 59. See Libel; Libeler; Publication.
PUDICITY. Chastity; the abstaining from all unlawful carnal commerce or connexion. A married woman or a widow may defend her pudicity as a maid may her virginity. Vide Chastity; Rape.
PUDZELD Eng. law. To be free from the payment of money for taking of wood in any forest. Co. Litt. 233 a. The same as Woodgeld. (q. v.)
PUER. In its enlarged sense this word signifies a child of either sex; though in its restrained meaning it is applied to a boy only.
2. A case once arose which turned upon this question, whether a daughter could take lands under the description of puer, and it was decided by two judges against one that she was entitled. Dy. 337 b. In another case, it was ruled the other way. Rob. 33.
PUERILITY, civil law. This commenced at the age of seven years, the end of the age of infancy, and lasted till the age of puberty, (q. v.) that is, in females till the accomplishment of twelve years, and in males, till the age of fourteen years fully accomplished. Ayl. Pand. 63.
2. The ancient Roman lawyers divided puerility into proximus infantiae, as it approached infancy, and into proximus pubertati, as it became nearer to puberty. 6 Toullier, n. 100.
PUFFER, commerce, contracts. A person employed by the owner of property which is sold at auction to bid it up, who does so accordingly, for the purpose of raising the price upon bona fide bidders.
2. This is a fraud which at the choice of the purchaser invalidates the sale. 5 Madd. R. 37, 440; 3 Madd. R. 112; 12 Ves. 483; l Fonb. Eq. 227, n; 2 Kent, Com. 423; 11 Serg. & Rawle, 86; Cowp. 395; 3 Ves. jun. 628; 6 T. R. 642; 2 Bro. C. C. 326; 3 T. R. 93, 95; 1 P. A. Browne, Rep. 346; 2 Hayw. R. 328; Sugd. Vend. 16; 4 Harr. & McH. 282; 2 Dev. 126; 2 Const. Rep. 821;. 3 Marsh. 526.
PUIS DARREIN CONTINUANCE, pleading. These old French words signify since the last continuance.
2. Formerly there were formal adjournments or continuances of the proceedings in a suit, for certain purposes, from one term to another; and during the interval the parties were of course out of court. When any matter arose which was a ground of defence, since the last continuance, the defendant was allowed to plead it, which allowance was an exception to the general rule that the defendant can plead but one plea of one kind or class.
3. By the modern practice the parties are, from the day when, by the ancient practice, a continuance would have been entered, supposed to be out of court, and the pleading is suspended till the day arrives to which, by the ancient practice, the continuance would extend; at that day, the defendant is en-titled, if any new matter of defence has arisen in the interval, to plead it, according to the ancient plan puis darrein continuance, before the next continuance.
4. Pleas of this kind may be either in abatement or in bar; and may be pleaded, even after an issue joined, either in fact or in law, if the new matter has arisen after the issue was joined, and is pleaded before the next adjournment. Gould on Pl. c. 6, 123-126; Steph. Pl. 81, 398; Lawes on Pl. 173; 1 Chit. Pl. 637; 5 Peters , Rep. 232; 3 Bl. Com. 316; Arch. Civ, Pl. 353; Bac. Ab. Pleas, Q; 4 Mass. 659; 4 S. & R. 238; 1 Bailey, 369; 4 Verm. 545; 11 John. 4; 24; 1 S. & R. 310; 3 Bouv. Inst. n. 3014-18.
PUISNE. Since born; the younger; as, a puisne judge, is an associate judge.
PUNCTUATION, construction. The act or method of placing points (q. v.) in a written or printed instrument.
2. By the word point is here understood all the points in grammar, as the comma, the semicolon, the colon, and the like.
3. All such instruments are to be construed without any regard to the punc-tuation; and in a case of doubt, they ought to be construed in such a manner that they may have some effect, rather than in one in which they would be nugatory. Vide Toull. liv. 3, t. 2, c. 5, n. 430; 4 T. R. 65; Barringt. on the Stat. 394, n. Vide article Points.
PUNISHMENT, crim. law. Some pain or penalty warranted by law, inflicted on a person, for the commission of a crime or misdemeanor, or for the omission of the performance of an act required by law, by the judgment and command of some lawful court.
2. The right of society to punish, is derived by Becoaria, Mably, and some others, from a supposed agreement which the persons who composes the primitive societies entered into, in order to keep order and, indeed, the very existence of the state. According to others, it is the interest and duty of man to live in society; to defend this right, society may exert this principle in order to support itself, and this it may do, whenever the acts punishable would en-danger the safety of the whole. And Bentham is of opinion that the foundation of this right is laid in public utility or necessity. Delinquents are public enemies, and they must be disarmed and prevented from doing evil, or society must be destroyed. But, if the social compact has ever existed, says Livingston, its end must have been the preservation of the natural rights of the members and, therefore the effects of this fiction are the same with those of the theory which takes abstract justice as the foundation of the right to punish; for, this justice, if well considered, is that which assures to each member of the state, the free exercise of his rights. And if it should be found that utility, the last source from which the right to punish is derived, is so intimately united to justice that it is inseparable from it in the practice of law, it will follow that every system founded on one of these principles must be supported by the others.
3. To attain their social end, punishments should be exemplary, or capable of intimidating those who might be tempted to imitate the guilty; reformatory, or such as should improve the condition of the convicts; personal, or such as are at least calculated to wound the feelings or affect the rights of the relations of the guilty divisible, or capable of being graduated and proportioned to the offence, and the circumstances of each case; reparable, on account of the fallibility of human justice.
4. Punishments are either corporal or not corporal. The former are, death, which is usually denominated capital punishment; imprisonment, which is either with or without labor; vide Penitentiary; whipping, in some states, though to the honor of several of them, it is not tolerated in them; banishment and death.
5. The punishments which are not corporal, are fines; forfeitures; suspension or deprivation of some political or civil right deprivation of office, and being rendered incapable to hold office; compulsion to remove nuisances.
6. The object of punishment is to reform the offender; to deter him and others from committing like offences; and to protect society. Vide 4 Bl. Com. 7 Rutherf. Inst. B. 1, ch. 18.
7. Punishment to be just ought to be graduated to the enormity of the offence. It should never exceed what is requisite to reform the criminal and to protect society; for whatever goes beyond this, is cruelty and revenge, the relic of a barbarous age. All the circumstances under which the offender acted should be considered. Vide Moral Insanity.
8. The constitution of the United States, amendments, art. 8, forbids the infliction of "cruel and unusual punishments."
9. It has been well observed by the author of Principles of Penal Law, that "when the rights of human nature are not respected, those of the citizen are gradually disregarded. Those eras are in history found fatal to liberty, in which cruel punishments predominate. Lenity should be the guardian of moderate governments; severe penalties, the instruments of despotism, may give a sudden check to temporary evils, but they have a tendency to extend themselves to every class of crimes, and their frequency hardens the sentiments of the people. Une loi rigoureuse produit des crimes. The excess of the penalty flatters the imagination with the hope of impunity, and thus becomes an advocate with the offender for the perpetrating of the offence." Vide Theorie des Lois Criminelles, ch. 2; Bac. on Crimes and Punishments; Merl. Rep. mot Peine; Dalloz, Dict. mot Peine and Capital crimes.
10. Punishments are infamous or not infamous. The former continue through life, unless the offender has been pardoned, and are not dependant on the length of time for which the party has been sentenced to suffer imprisonment; a person convicted of a felony, perjury, and other infamous crimes cannot, therefore, be a witness nor hold any office, although the period for which he may have been sentenced to imprisonment, may have expired by lapse of time. As to the effect of a pardon, vide Pardon.
11. Those punishments which are not infamous, are such as are inflicted on persons for misdemeanors, such as assaults and batteries, libels, and the like. Vide Crimes; Infamy; Penitentiary.
PUNISHMENT OF DEATH. The deliberate killing, according to the forms of law,, of a person who has been lawfully convicted of certain crimes. See Capital crimes.
PUPIL, civil law. One who is in his or her minority. Vide. Dig. 1, 7; Id. 26, 7, 1, 2; Code, 6, 30, 18; Dig. 50, 16, 239. One who is in ward or guardianship.
PUPILLARITY, civil law. That age of a person's life which included infancy and puerility. (q. v.)
PUR. A corruption of the French word par, by or for. It is frequently used in old French law phrases; as, pur autre vie. It is also used in the composition of words, as purparty, purlieu, purview.
PUR AUTRE VIE, tenures. These old French words signify, for another's life. An estate is said to be pur autre vie, when a lease is made of lands or tenements to a man, to hold for the life of another person. 2 Bl. Com. 259; 10 Vin. Ab. 296; 2 Supp. to Ves. Jr. 41.
PURCHASE. In its most enlarged and technical sense, purchase signifies the lawful acquisition of real estate by any means whatever, except descent. It is thus defined by Littleton, section 12. "Purchase is called the possession of lands or tenements that a man hath by his own deed or agreement, unto which possession he cometh, not by title of descent from any of his ancestors or cousins, but by his own deed."
2. It follows, therefore, that not only when a man acquires an estate by buying it for a good or valuable consideration, but also when it is given or devised to him be acquires it by purchase. 2 Bl. Com. 241.
3. There are six ways of acquiring a title by purchase, namely, 1. By, deed. 2. By devise. 3. By execution. 4. By prescription. 5. By possession, or occupancy. 6. By escheat. In its more limited sense, purchase is applied only to such acquisitions of lands as are obtained by way of bargain and sale for money, or some other valuable consideration. Id. Cruise, Dig. tit. 30, s. 1, to 4; 1 Dall. R. 20. In common parlance, purchase signifies the buying of real estate and of goods and chattels.
PURCHASER, contracts. A buyer, a vendee.
2. It is a general rule that all persons, capable of entering into contracts, may become purchasers both of real and personal property.
3. But to this rule there are several exceptions. 1. There is a class of persons who are incapable of purchasing except sub modo; and, 2. Another class, who, in consequence of their peculiar relation with regard to the owners of the thing sold, are totally incapable of becoming purchasers, while that relation exists.
4. - 1. To the first class belong, 1st. Infants under the age of twenty-one years, who may purchase, and at their full age bind themselves by agreeing to the bargain, or waive the purchase without alleging any cause for so doing. If they do not agree to the purchase after their full age, their heirs may waive it in the same manner as they themselves could have done. Cro. Jac. 320; Rolle's Ab. 731 K; Co. Litt. 2 b; 6 Mass. R. 80; 6 John. R. 257.
5. - 2d. Femes covert, who are capable of purchasing but their hushands may disagree to the contract, and divest the whole estate; the hushand may further recover back the purchase-money. 1 Ld. Raym. 224; 1 Madd. Ch. R. 258; 6 Binn. R. 429. When the hushand neither, agrees nor disagrees, the purchase will be valid. After the hushand's death, the wife may waive the purchase without assigning any cause for it, although the hushand may have agreed to it; and if, after her hushand's death, she do not agree to it, her heirs may waive it. Co. Lift. 3 a; Dougl. R. 452.
6. - 3d. Lunatics, or idiots, who are capable of purchasing. It seems that although they recover their senses, they cannot of themselves waive the purchase; yet if, after recovering their senses, they agree to it, their heirs cannot set it aside. 2 Bl. Com. 291; and see 3 Day's R. 101. Their heirs may avoid the purchase when they die during their lunacy or idiocy. Co. Litt. 2 b.
7. - 2. It is a general rule that trustees 2 Bro. C. C. 400; 3 Bro. C. C. 483; 1 John. Ch. R. 36; 3 Desaus. Ch. R. 26; 3 Binn. Y. 59; unless they are nominally so, to preserve contingent remainders; 11 Ves, Jr. 226; agents; 8 Bro. P. C; 42; 13 Ves. Jr. 95; Story, Ag. 9; commissioners of bankrupts; assignees of bankrupts; solicitors to the commission; 6 Ves. Jr. 630, n. b.; auctioneers and creditors who have been consulted as to the mode of sale; 6 Ves. Jr. 617; 2 Johns. Ch. R. 257; or any other persons who, by their connexion with the owner, or by being employed concerning his affairs, have acquired a knowledge of his property, are generally incapable of purchasing such property themselves. And so stern is the rule, that when a person cannot purchase the estate himself, he cannot buy it, as agent for another; 9 Ves. Jr. 248; nor perhaps employ a third person to bid for it on behalf of a stranger; 10 Ves. Jr. 381 for no court is equal to the examination and ascertanment of the truth in a majority of such cases. 8 Ves. Jr. 345.
8. The obligations of the purchaser resulting from the contract of sale, are, 1. To pay the price agreed upon in the contract. 2. To take away the thing purchased, unless otherwise agreed upon; and, 3. To indemnify the seller for any expenses he may have incurred to preserve it for him. Vide Sugd. on Vend. Index, h. t.; Ross on Vend. Index, h. t.; Long on Sales, Index, h. t.; 2 Supp. to Ves. Jr. 449, 267, 478; Yelv. 45; 2 Ves. Jr. 100; 8 Coin. Dig. 349; 3 Com. Dig. 108.
PURCHASE-MONEY. The consideration which is agreed to be paid by the purchaser of a thing in money. It is the duty of the purchaser to pay the purchase-money as agreed upon in making the contract, and, in case of conveyance of an estate before it is paid, the vendor is entitled according to the laws of, England, which have been adopted in several of the states, to a lien on the estate sold for the purchase-money so remaining unpaid. This is called an equitable lien. This doctrine is derived from the civil law. Dig. 18, 1, 19. The case of Chapman v. Tauner, 1 Vera. 267, decided in 1684, is the first where this doctrine was adopted. 7 S. & R. 73. It was strongly opposed, but is now firmly established in England, and in the United States. 6 Yerg. R. 50; 4 Bibb, R. 239 1 John. Ch. R. 308; 7 Wheat. R. 46, 50 5 Monr. R. 287; 1 liar. & John. 106; 4 Har. & John. 522; 1 Call. R. 414; 1 Dana, R. 576; 5 Munf. R. 342; Dev. Eq. R. 163 4 Hawks, R. 256; 5 Conn. 468; 2 J. J. Marsh, 330; 1 Bibb. R. 590.
2. But the lien of the seller exists only between the parties and those having notice that the purchase-money has nut been paid. 3 J. J. Marsh. 557; 3 Gill & John. 425 6 Monr. R. 198.
PURE DEBT. In Scotland, this name is given to a debt actually due, in contradistinction to one which is to become due at a future day certain, which is called a future debt: and one due provisionally, in a certain event, which is called a contingent debt. 1 Bell's Com. 315, 5th ed.
PURE OR SIMPLE OBLIGATION. One which is not suspended by any condition, whether it has been contracted without any condition, or when thus contracted, the condition has been performed. Poth. Obl. n. 176.
PURE PLEA, equity pleading. One which relies wholly on some matter dehors the bill as for example, a plea of a release or a settled account.
2. Pleas not pure, are so called in contradistinction to pure pleas; they are sometimes also denominated negative pleas. 4 Bouv. Inst. n. 4275.
PURGATION. The clearing one's self of an offence charged, by denying the guilt on oath or affirmation.
2. There were two sorts of purgation, the vulgar, and the canonical.
3. Vulgar purgation consisted in superstitious trials by hot and cold water, by fire, by hot irons, by batell, by corsned, &c., which modes of trial were adopted in times of ignorance and barbarity, and were impiously called judgments of God.
4. Canonical purgation was the act of justifying one's self, when accused of some offence in the presence of a number of persons, worthy of credit, gen-erally twelve, who would swear they believed the accused. See Compurgator; Wager of Law.
5. In modern times, a man may purge himself of an offence, in some cases where the facts are within his own knowledge; for example, when a man is charged with a contempt of court, he may purge himself of such contempt, by swearing that in doing the act charged, he did not intend to commit a contempt.
PURLIEU, Eng. law. A space of land near a forest, known by certain boundaries, which was formerly part of a forest, but which has been separated from it.
2. The history of purlieus is this. Henry III., on taking possession of the throne, manifested so great a taste for forests that he enlarged the old ones wherever he could, and by this means enclosed many estates, which had no outlet to the public roads, and things increased in this way until the reign of King John, when the public reclamations were so great that much of this land was disforested; that is, no longer had the privileges of the forests, and the land thus separated bore the name of purlieu.
PURPARTY. That part of an estate, which having been held in common by parceners, is by partition allotted to any of them. To make purparty is to divide and sever the lands which fall to parceners. Old Nat. Br. 11.
PURPORT, pleading. This word means the substance of a writing, as it appears on the face of it, to the eye that reads it; it differs from tenor. (q. v.), 2 Russ. on Cr. 365; 1 Chit. Cr. Law, 235; 1 East, R. 179, and the cases in the notes.
PURPRESTURE. According to Lord Coke, purpresture, is a close or enclosure, that is, when one encroaches or makes several to himself that which ought to be in common to many; as if an individual were to build between high and low water-mark on the side of a public river. In England this is a nuisance; and in cases of this kind an injunction will be granted, on ex parte affidavits, to restrain such a purpresture and nuisance. 2 Bouv. Inst. n, 2382; 4 Id. n. 3798; 2 Inst. 28; and see Skene, verbo Pourpr esture; Glanville, lib. 9, ch. 11, p. 239, note Spelm. Gloss. Purpresture Hale, de Port. Mar.; Harg. Law Tracts, 84; 2 Anstr. 606; Cal. on Sew. 174 Redes. Tr. 117.
PURSE. In Turkey the sum of five hundred dollars is called a purse. Merch. Dict. h. t.
PURSER. The person appointed by the master of a ship or vessel, whose duty it is to take care of the ship's books, in which everything on board is inserted, as well the names of mariners as the articles of merchandise shipped. Rocc. Ins. note.
2. The act of congress concerning the naval establishment, passed March 30, 1812, provides, 6, That the pursers in the Navy of the United States shall be appointed by the president of the United States, by and with the advice and consent of the senate; and that, from and after the first day of May next, no person shall act in the character of purser, who shall not have been thus first nominated and appointed, excepting pursers on distant service, who shall not remain in service after the first day of July next, unless nominated and appointed as aforesaid. And every purser, before entering upon the duties of his office, shall give bond, with two or more sufficient sureties, in the penalty of ten thousand dollars, conditioned faithfully to perform all the duties of purser in the United States.
3. And by the supplementary act to this act concerning the naval establishment, passed March 1, 1817, it is enacted, 1, That every purser now in service, or who may hereafter be appointed, shall, instead of the bond required by the act to which this is a supplement, enter into bond, with two or more sufficient sureties, in the penalty of twenty-five thousand dollars, conditioned for the faithful discharge of all his duties as purser in the navy of the United States, which said sureties shall be approved by the judge or attorney of the United States for the district in which such purser shall reside.
PURSUER, canon law. The name by which the complainant or plaintiff is known in the ecclesiastical courts. 3 Eng. Eccl. R. 350.
PURVEYOR. One employed in procuring provisions. Vide Code, 1, 34.
PURVIEW. That part of an act of the legislature which begins with the words "Be it enacted," &c., aud ends before the repealing clause. Cooke's R. 330 3 Bibb, 181. According to Cowell, this word also signifies a conditional gift or grant. It is said to be derived from the French pourvu, provided. It always implies a condition. Interpreter, h. t.
TO PUT, pleading. To select, to demand; as, the said C D puts himself upon the country; that is, he selects the trial by jury, as the mode of settling the matter in dispute, and does not rely upon an issue in law. Gould, Pl. c. 6. part 1, 19.
PUTATIVE. Reputed to be that which is not. The word is frequently used, as putative father, (q. v.) putative marriage, putative wife, and the like. And Toullier, tome 7, n. 29, uses the words putative owner, proprietare putatif. Lord Kames uses the same expression. Princ. of Eq. 391.
PUTATIVE FATHER. The reputed father.
2. This term is most usually applied to the father of a bastard child.
3. The putative father is bound to support his children, and is entitled to the guardianship and care of them in preference to all persons but the mother. 1 Ashm. It. 55; and vide 7 East, 11; 5 Esp. R. 131; 1 B. & A. 491; Bott, P. L. 499; 1 C. & P. 268; 1 B. & B. 1; 3 Moore, R. 211; Harr. Dig. Bastards, VlI.; 3 C. & P. 36.
PUTATIVE MARRIAGE. This marriage is described by jurists as "matrimonium putativum, id est, quod bona fide et solemnitur saltem, opinions conjugis unius justa contractum inter personas vetitas jungi." Hertius, h. t. It is a marrriage contracted in good faith, and in ignorance of the existence of those facts which constituted a legal impediment to the intermarriage.
2. Three circumstances must concur to constitute this species of marriage. 1st. There must be a bona fides. One of the parties, at least, must have been ignorant of the impediment, not only at the time of the marriage, but must also have continued ignorant of it during his or her life, because, if he became aware of it, he was bound to separate himself from his wife. 2d. The marriage must be duly solemnized. 3d. The marriage must have been considered lawful in the estimation of the parties, or of that party who alleges the bona fides.
3. A marriage in which these three circumstances concur, although null and void, will have the effect of entitling the wife, if she be in good faith, to enforce the rights of property, which would have been competent to her if the marriage had been valid, and of rendering the children of such marriage legitimate.
4. This species of marriage was not recognized by the civil law; it was introduced by the canon law. It is unknown to the law of the United States, and in England and Ireland. In France it has been adopted by the Code Civil, art. 201, 202. In Scotland, the question has not been settled. Burge on the Confl. of Laws, 151, 2.
PUTTING IN FEAR. These words are used in the definition of a robbery from the person; the offence must have been committed by putting in fear the person robbed. 3 Inst. 68; 4 Bl. Com. 243.
2. This is the circumstance which distinguishes robbery from all other larcenies. But what force must be used, or what kind of fears excited, are questions very proper for discussion. The goods must be taken against the will (q. v.) of the possessor. For. 123.
3. There must either be a putting in fear or actual violence, though both need not be positively shown; for the former will be inferred from the latter, and the latter is sufficiently implied in the former. For example, when a man is suddenly knocked down and robbed while he is senseless, there is no fear,, yet in consequence of the violence, it is presumed. 2 East, P. C. 711; 4 Binn. Rep. 379; 3 Wash. C. C. Rep. 209; 2 Chit. Cr. Law, 803.