A New Law Dictionary and Institute of the Whole Law

PRIZE-continued.

English Court of Admiralty has always had jurisdiction in the matter of naval captures; but until the stat. 3 & 4 Vict. c. 65, s. 22, it had no jurisdiction in the matter of land seizures, or booty. Banda and Kirwee Booty Case, Law Rep. 1 A. & E. 109.

Prize tribunals are a species of international tribunals, their sentences being conclusive evidence upon every matter within their respective jurisdictions (Bolton v. Gladstone, 5 East, 155); but nothing that rests on mere inference from these sentences is conclusive in the same manner (Fisher v. Ogle, 1 Camp. 418). The conclusive effect of these sentences appears to arise from the fact that they are not given in any litigation inter partes (the foreign state having no locus standi in the Courts) nor yet ex parte; but the sovereign state itself in which the Court is sitting is by means of its Court making an inquiry for itself, and adjudicating for itself only, and the sovereign state is answerable to the injured party (if any), who will either claim or recriminate through his own government

PROBATE (probatio). The copy of a will or testament made out in parchment under the seal formerly of the ordinary, and now of the Court of Probate, and usually delivered to the executor or administrator of the deceased, together with a certificate of the will's having been proved, is commonly called the probate. It is sometimes used for the act of proving a will. The meaning of proving a will may be thus explained. An executor, before he is permitted to take a probate of the will, is obliged to swear, formerly before the ordinary or his surrogate, and now before a registrar of the Court of Probate, that the writing contains the true last will and testament of the deceased as far as he knows or believes, and that he will truly perform the same by paying first the testator's debts, and then the legacies therein contained, as far as the goods, chattels, and credits of the deceased will thereto extend, and the law charge him; and that he will make a true and perfect inventory of all the goods, chattels, and credits, and exhibit the same into the registry of the Court at the time assigned by the Court, and render a just account thereof when lawfully required; and this is termed proving a will. Toller's Exe. 58.

See also title NEXT FRIEND.

PROCLAMATION.

A notice publicly made of anything; or a public declaration of the king's will made to his subjects. It was the opinion of Lord Coke, that proclamations, when grounded on the laws of the realm, were of great force; and of Blackstone, that proclamations were binding on the subject when they did not contradict the laws of the land, or tend to establish new ones; and they appear, in fact, to be a proper mode, if not of signifying, at any rate of enforcing, the law, and, as such, to be a necessary part of the executive, in proper cases. They have been used at all times by all classes of sovereigns, as well those who regarded the constitution as those who disregarded it. The stat. 31 Hen. 8, c. 8, gave to the king's proclamations in ecclesiastical matters the force of law; and, similarly, Orders in Council made in virtue of any like enabling statute have the force of law.

The

PROCLAMATION OF A FINE. notice or proclamation which was made after the engrossment of a fine, and which consisted in its being openly read in Court sixteen times: viz. four times in the term in which it was made, and four times in each of the three succeeding terms; which, however, was afterwards reduced to one reading in each term.

PRO CONFESSO. When a defendant in a suit in Chancery will not put in his answer to the plaintiff's bill, and the proper means have been resorted to, to compel him to do so, and yet he does it not, and will not do it, the plaintiff may proceed to have the bill taken against him pro confesso (i.e. as confessed), and to obtain a decree in the suit on the assumption that the defendant has confessed the truth of the bill for by his not answering it, and remaining silent, it is assumed, reasonably enough, that he confesses the truth of its contents.

PROCTOR (procurator). An officer of the Ecclesiastical Courts, while these existed, and now of the Court of Probate, whose duties correspond with those of an attorney in the Common Law Courts; and in fact all such attorneys may, and commonly do, now act as proctors in the Court of Probate.

PROCURATION (procuratio). Indorsing a bill of exchange by procuration, is doing it as proxy for or by authority of another. Also, many contracts are entered into per

PROCURATION-continued.

proc., as it is called; in which case the agent should describe himself as such both in the body of the document and in his signature to it, otherwise he may be incurring a personal liability upon it.

See title PRINCIPAL AND AGENT.

PROCURATOR. In its general signification means any one who has received a charge, duty, or trust for another. Thus the proxies of the Lords in Parliament are in our old books called procuratores; so also a vicar or lieutenant was so called, and even the bishops were sometimes called procuratores ecclesiarum. From this term came the word "proctor," meaning one who acted for another in the Ecclesiastical Courts, the same as an attorney does for his client in the Common Law Courts. The word "procurator" was also used for him who gathered the profits of a benefice for another man, and the word "procuracy' for the writing or instrument which authorized the procurator to act. Cowel; Les Termes de la Ley

PROCUREUR DU ROI. In French Law is a public prosecutor, with whom rests the initiation of all criminal proceedings. In the exercise of his office (which appears to include the apprehension of offenders), he is entitled to call to his assistance the public force (posse comitatus); and the officers of police are auxiliary to him.

PROCUREUR GÉNÉRAL, ou IMPÉ

RIAL. In French Law is an officer of the Imperial Court, who either personally, or by his deputy, prosecutes every one who is accused of a crime according to the forms of French Law. His functions appear to be confined to preparing the case for trial at the assizes, assisting in that trial, demanding the sentence in case of a conviction, and being present at the delivery of the sentence. He has a general superintendence over the officers of police and of the juges d'instruction, and he requires from the procureur du roi a general report once in every three months.

PROFERT IN CURIA (he produces in Court): See title OYER OF DEEDS AND RECORDS.

PROFITS À PRENDRE. Are rights of taking some portion of the substance or produce of lands, in which respect they are distinguished from easements, which are privileges without profit (see title EASEMENTS). They are to all intents and purposes mere rights of common, and their varieties are specified under that title.

PROHIBITION. A writ issuing properly out of the Court of King's Bench,

PROHIBITION-continued.

being the king's prerogative writ; but for
the furtherance of justice it may also
be had in some cases out of the Courts
of Chancery, Common Pleas, or Exchequer,
directed to the judge and parties of a suit
in any inferior Court, commanding them to
cease from the prosecution thereof, upon
a suggestion that either the cause origin-
ally, or some collateral matter arising
therein, does not belong to that jurisdic-
tion, but to the cognizance of some other
Court. No such prohibition will issue
after sentence unless the want of jurisdic-
tion below appears on the face of the pro-
ceedings. Buggin v. Bennet, 4 Burr. 20, 35.
In early times, the chief use of prohibi-
tions was to restrain the Ecclesiastical
Courts from interfering in matters which
were properly subject to the jurisdiction of
the Courts of Common Law, whence also
numerous statutes were passed in aid of
the Common Law (see titles ARTICULI
CLERI; CLARENDON, CONSTITUTIONS OF).
And the clergy used to complain, notably
in the reign of James I. during the primacy
of Archbishop Bancroft, that the Common
Law Courts extended their interference
with the spiritual Courts by means of their
prohibitions too far (see Case of Prohibi-
tions, 12 Rep. 59). But in more modern
times the uses of writs of prohibition have
been chiefly the following:-

(1.) To commissioners, justices, and in-
ferior Courts generally, whether
civil or criminal, for assuming
unwarranted jurisdiction;
(2.) To Courts of Appeal, not except-

ing even the Judicial Committee
of the Privy Council. Darby v.
Cozens, 1 T. R. 552; Ex parte
Smyth, 3 A. & E. 719.

But, semble, no prohibition will issue to restrain the Lord Mayor's Court, this being a consequence of the words of s. 15 of the Mayor's Court Procedure Act, 1857, which provide that all objections to the jurisdiction shall be taken by plea only.

The Court of Chancery can properly grant a prohibition (as distinguished from an injunction) during vacation only, and not during term.

PROMISE continued.

inferred from his acts, conduct, or peculiar position. Thus, the law will always infer a promise by a debtor to pay a debt due to his creditor; and in an action against the debtor for recovery of the debt, such promise must be alleged in the declaration, although it need not be specifically proved. See also title ASSUMPSIT.

PROMISSORY NOTE. A written instrument by which one person engages or promises to pay a certain sum of money to another. It in many respects resembles a bill of exchange; the following is an ordinary form of a promissory note:£100 0s. Od.

London, 1st March, 1874. On demand, I promise to pay to James Williams, or bearer, one hundred pounds, value received.

JOHN ANDERSON.

A promissory note, of course, varies from the above form according to circumstances; thus a party frequently promises to pay at a certain period after the date of it instead of on demand, and then it would run thus: "Three months (as the case may be) after date, I promise," &c.

See also title BILL OF EXCHANGE.

PROMOTERS. Those persons who in popular and penal actions prosecute offenders in their own name and in that of the king's, and are thereby entitled to a part of the fine or penalty inflicted on the offender as a reward for so prosecuting. The term is also, and now almost exclusively, applied to a party who puts in motion an ecclesiastical tribunal for the purpose of correcting the manners of any person who has violated the laws ecclesiastical, and, taking such a course, he is said to "promote the office of the judge" (see Taylor v. Morley, 1 Curt. 470). It would appear that the office of the judge ought not to be promoted in a suit by more than one person, excepting in the case of churchwardens (per Sir H. Jenner, 2 Curt. 403). The word "promoters" is also used to denote a number of persons who project and endeavour to float a public undertaking, e.g., promoters of railway companies.

PROPERTY (proprietas). A word of almost infinite extent, including every species of acquisition which a man may have an interest in. Thus the terms lands, goods, chattels, effects, and, indeed, almost every term which represents an object in which a person may acquire an interest or a right, are included in the word “ perty." Doe d. Morgan v. Morgan, 6 B. & C. 512.

pro

PROPOUNDER OF A WILL. He by whom it is brought forward, and who seeks to obtain for it the probate formerly of the ordinary or of the Prerogative Court, and now of the Court of Probate. This is generally the executor; but if any testamentary paper be left in the possession of, or materially benefits, any other person, it may be propounded by such person. Wood and Others v. Goodlake; Helps and Others, 2 Curt. 84, 95.

PROPRIETARY CHAPELS. There are four principal sorts of chapels: 1st. Private chapels; 2nd. Chapels of ease; 3rd. Free chapels; and 4th. Proprietary chapels. 1st. Private chapels are those which noblemen or any worthy and religious persons have, at their own expense, built in or near their own houses, for them and their families to perform religious duties in. These, and their ornaments, are maintained by those to whom they belong, and chaplains are provided for them by themselves with suitable pensions. The minister, by his appointment, gains no freehold interest, and may be dismissed whenever the party who appointed him thinks fit (4 B. & C. 573; Rog. Eccl. Law, 149). 2nd. Chapels of ease are such as are built within the precincts of a parish and belong to the parish church and the parson of it (2 Roll. Abr. 340, 1. 51, 341, 1. 2). It is a mere oratory for the parishioners in prayers and preaching (sacraments and burials being received and performed at the mother church), and commonly the curate is removable at the will of the parochial minister (Gibs. 209; 1 Burn's Eccl. Law, 299). 3rd. Free chapels are such as are of royal foundation or founded by subjects by the licence or grant of the Crown. Hence they are usually found upon the manors and ancient demesnes of the Crown, where they were built whilst in the king's hands for the use of himself and his retinue when he came to reside there (Godol. Ab. 146). 4th. Proprietary chapels are such as have been built within time of memory; and these are usually assessed to the rates as other buildings and dissenting chapels are. These chapels, unless when they are enabled by statute, can exercise no parochial rights, and are described by Sir John Nicholl to be "anomalies unknown to the constitution and to the ecclesiastical establishment of the Church of England." 2 Hag. 46.

PROPRIETATE PROBANDA. A writ which used to be directed to the sheriff, requiring him to inquire by inquest whether goods distrained were the property of the plaintiff, or of the person claiming them. This writ issued when to a writ of replevin the sheriff returned as his rea

PROPRIETATE PROBANDA—contd. son for not executing it, that the distrainor, or other person, claimed a property in the goods distrained (2 Arch. Pract. 827). The object of this writ is now obtained by means of a summons to interplead.

PROPRIÉTÉ. In French Law, is the right of enjoying and of disposing of things in the most absolute manner, subject only to the laws.

PRO RATÂ (in proportion; at a certain rate). As, under certain circumstances, the payment of freight is regulated according to the portion of the voyage performed, pro rata itineris peracti. Abbot on Shipping, by Shee, 438, et seq.; 1 M. & S. 453; 5 Taunt. 512; 10 East, 378, 526. See also the phrase used in 2 Williams's Exors. 1459.

PROROGATION OF PARLIAMENT: See title PARLIAMENT.

PROTECTOR.

By s. 32 of the stat. 3 & 4 Will. 4, c. 74, power is given to any settlor to appoint any person or persons, not exceeding three, the protector of the settlement, and also to perpetuate that protectorship; and by s. 33 of the same Act, if any protector is a lunatic, idiot, or of unsound mind, the person for the time being entrusted by the royal sign mannal with the care and custody of the persons and estates of such persons (being usually the Lord Chancellor) is constituted protector in the place of such lunatic, idiot, or person of unsound mind; or if the protector is a convicted felon, or an infant, or it is uncertain whether he is living or dead, and generally in the absence of a protector for other causes, there being a subsisting prior estate, the Court of Chan cery is constituted protector in his stead. However, by s. 22 of the Act, it is enacted that if at the time of a subsisting tenaney in tail under a settlement, there is also subsisting under the same settlement in the same lands, any estate for years determinable on a life or lives, or any greater estate (not being an estate for years simply) prior to the estate tail, the owner of such prior estate (or if there be more than one such, then the owner of the first of them, being otherwise qualified) shall be the protector of the settlement, notwith

PROTECTOR-continued.

standing such owner may have wholly alienated his estate, or have incumbered the same; and by s. 23, each of two or more persons, co-owners of such prior estate, is sole protector in the proportion of his share; and by s. 24, a married woman being owner of such prior estate, if settled to her separate use, is sole protector, and if not so settled, is protector together with her husband. But by ss. 27 and 31, the following persons, as such, are not to be capable of being protectors, viz., dowresses, bare trustees, heirs, executors, administrators, or assigns: but a tenant by the curtesy may be protector (s. 22), and also a bare trustee under a settlement dated on or before the 31st of December, 1833.

The protector is, in the exercise of his own unlimited discretion, to accord or to withhold his consent to any disposition of an actual tenant in tail; but once he has accorded the same, he cannot afterwards recall it, s. 44. The protector, by s. 42, is to give his consent either in the deed of disposition, or by any deed prior to or contemporaneous with the deed of disposition, the distinct deed (if any such is used) requiring to be inrolled in the Court of Chancery either with or before the inrolment of the deed of disposition. The Lord Chancellor or Court of Chancery may signify his or its consent by order.

PROTEST. In its most general and enlarged sense signifies an open declaration or affirmation. Thus, when in the House of Lords any vote passes contrary to the sentiments of any of its members, such members may, by leave of the House, enter their dissent on the journals of the House, with the reasons of such dissent, which is usually styled their protest. So also the term "protest," as applied to foreign bills of exchange, signifies a solemn declaration by the notary that the bill has been presented for acceptance or payment and dishonoured. So also amongst mariners, a declaration made on oath before a magistrate or notary public in any distant port of the damage likely to ensue from a ship's delay is termed a protest.

PROTESTATION. A particular formula which was used in pleading was so termed ; the nature of it may be thus explained It is frequently expedient for a party to plead in such a manner as to avoid any implied admission of a fact which cannot with propriety or safety be positively affirmed or denied; and this might be done by the party interposing an oblique allegation or denial of some fact, protesting that such a matter did or did not exist, and at the same time avoiding a

PROTESTATION-continued.

direct affirmation or denial; and this was technically termed a protestation. This, however, by a late rule of Court (Hil. T. 4 Will. 4) is disallowed. In a demurrer to a bill in the Court of Chancery, the form begins with a protestation in this manner : "This defendant by protestation not confessing or acknowledging all or any of the matters or things in the said bill of complaint contained to be true in such manner and form as the same are therein set forth and alleged, doth demur, &c." See Hunter's Suit in Equity, App. p. 275.

PROVISIONAL ASSIGNEE. Was an assignee to whom the property of a bankrupt was assigned until the regular or permanent assignees were appointed by the creditors. But the 1 & 2 Will. 4, c. 56, s. 22, and 5 & 6 Vict. c. 122, s. 48, having enacted that until assignees should be chosen by the creditors of each bankrupt, the official assignee to be appointed to act with the creditors' assignees should be enabled to act, and should be deemed to be to all intents and purposes a sole assignee of each bankrupt's estate and effects, provisional assignees ceased to be any longer necessary, the official assignees acting, in fact, as such provisional assignees in all cases. The like simplification of the bankruptcy law is preserved under the Act of 1869, under which the registrar of the Court is the official trustee until the Court or the creditors have appointed a particular trustee of the bankrupt.

PROVISIONS. The nominations to benefices by the pope were so called, and those who were so nominated were termed provisors. Various statutes were passed in the reign of Edward III. forbidding all ecclesiastical persons from purchasing these provisions: see in particular the stats. 25 Edw. 3, st. 6, and 27 Edw. 3, st. 1, which are pre-eminently called the Statutes of Provisors.

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