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PROTOCOL, civil law, international law. A record or register. Among the Romans, protocollunt was a writing at the head of the first page of the paper used by the notaries or tabellions. Nov. 44.

2. In France the minutes of notarial acts were formerly transcribed on registers, which were called protocols. Toull. Dr. Civ. Fr. liv. 3, t. 3, c. 6, s. 1, n. 413.

3. By the German law it signifies the minutes of any transaction. Eneye. Amer. Protocol. In the latter sense the word has of late been received into international law. Ibid.

PROTUTOR, civil law. He who not being the tutor of a pupil or minor, has administered his property or affairs as if he had been, whether he thought himself legally invested with the authority of a tutor, or not.

2. He who marries a woman who is tutrix, becomes, by the marriage, a protutor. The protutor is equally responsible as the tutor.

PROUT PATET PER RECORDUM. As appears by the record. This phrase is frequently used in pleading; as, for example, in debt on a judgment or other matter of record, unless when it is stated is an inducement, it is requisite after slowing the matter of record, to refer to it by the prout patet per recordum. 1 Chit. Pl. *356.

PROVINCE. Sometimes this signifies the district into which a country has been divided; as, the province of Canterbury, in England the province of Languedoc, in France. Sometimes it means a dependency or colony; as, the province of New Brunswick. It is sometimes used figuratively, to signify power or authority; as, it is the province of the court to judge of the law, that of the jury to decide on the facts.

PROVISION, com. law. The property which a drawer of a bill of exchange places in the hands of a drawee; as, for example, by remittances, or when the drawee is indebted to the drawer when the bill becomes due, provision is said to have been made. Acceptance always presumes a provision. See Code de Comm. art. 115, 116, 117.

PROVISION, French law. An allowance granted by a judge to a party for his support; which is to be paid before there is a definitive judgment. In a civil case, for example, it is an allowance made to a wife who is separated from her hushand. Dict. de Jurisp. h. t.

PROVISIONAL SEIZURE. A term used in Louisiana, which signifies nearly the same as attachment of property.

2. It is regulated by the Code of Practice as follows, namely: Art. 284. The plaintiff may, in certain caws, hereafter provided, obtain the provisional seizure of the property which he holds in pledge, or on which he has a privilege, in order to secure the payment of his claim.

3. Art. 285. Provisional seizure may be ordered in the following cases: 1. In executory proceedings, when the plaintiff sues on a title importing confession of judgment. 2. When a lessor prays for the seizure of furniture or property used in the house, or attached to the real estate which he has leased. 3. When a seaman, or another person, employed on board of a ship or water craft, navigating within the state, or persons having furnished materials for, or made repairs to such ship or water craft, prays that the same may be seized, and prevented from departing, until he has been paid the amount of his claim.

4. When the proceedings are in rem, that is to say, against the thing itself, which stands pledged for the debt, when the property is abandoned, or in cases where the owner of the thing is unknown or absent. Vide 6 N. S. 168; 8 N. S. 320; 7 N. S. 153; 1 Martin, R. 168; 12 Martin, R. 32.

PROVISIONS. Food for man; victuals.

2. As good provisions contribute so much to the health and comfort of man, the law requires that they shall be wholesome; he who sells unwholesome provisions, may therefore be punished for a misdemeanor. 2 East, P. C. 822; 6 East, R. 133 to 141; 3 M. & S. 10; 4 Campb. R. 10; 4 M. & S. 214.

3. And in the sale of provisions, the rule is, that the seller impliedly warrants that they are wholesome. 3 Bl. Com. 166.

PROVISO. The name of a clause inserted in an act of the legislature, a deed, a written agreement, or other instrument, which generally contains a condition that a certain thing shall or shall not be done, in order that an agreement contained in another clause shall take effect.

2. It always implies a condition, unless subsequent words change it to a covenant; but when a proviso contains the mutual words of the parties to a deed, it amounts to a covenant. 2 Co. 72; Cro. Eliz. 242; Moore, 707 Com. on Cov. 105; Lilly's Reg. h. t.; 1 Lev. 155.

3. A proviso differs from an exception. 1 Barn. k Ald. 99. An exception exempts, absolutely, from the operation of an engagement or an enactment; a proviso defeats their operation, conditionally. An exception takes out of an engagement or enactment, something which would otherwise be part of the subject-matter of it; a proviso avoids them by way of defeasance or excuse. 8 Amer. Jurist, 242; Plowd. 361; Carter 99; 1 Saund. 234 a, note; Lilly's Reg. h. t.; and the cases there cited. Vide, generally Amer. Jurist, No. 16, art. 1; Bac. Ab. Conditions, A; Com. Dig. Condition, A 1, A 2; Dwar. on Stat. 660.

PROVOCATION. The act of inciting another to do something.

2. Provocation simply, unaccompanied by a crime or misdemeanor, does not justify the person provoked to commit an assault and battery. In cases of homicide, it may reduce the offence from murder to manslaughter. But when the provocation is given for the purpose of justifying or excusing an intended murder, and the party provoked is killed, it is no justification. 2 Gilb. Ev. by Lofft, 753.

3. The unjust provocation by a wife of her hushand, in consequence of which she suffers from his ill usage, will not entitle her to a divorce on the ground of cruelty; her remedy, in such cases, is by changing her manners. 2 Lee,, R. 172; 1 Hagg. Cons. Rep. 155. Vide Cruelty; To Persuade; 1 Russ. on Cr. B. 3, c. 1, s. 1, page 434, and B. 3, c. 3, s. 1, pa e 486; 1 East, P. C. 232 to 241.

PROVOST. A title given to the chief of some corporations or societies. In France, this title was formerly given to some presiding judges. The word is derived from the Latin praepositus.

PROXENETAE, civil law. Among the Romans these were persons whose functions somewhat resembled the brokers of modern commercial nations. Dig. 50, 14, 3; Domat, 1. 1, t. 17, 1, art. 1.

PROXIMITY. Kindred between two persons. Dig. 38, 16, 8.

PROXY. A person, appointed in the place of another, to represent him.

2. In the ecclesiastical law, a judicial proctor, or one who is appointed to manage another man's law concerns, is called a proxy. Ayl. Parerg.

3. The instrument by which a person is appointed so to act, is likewise called a proxy.

4. Proxies are also annual payments made by the parochial clergy to the bishop, &c., on visitations. Tom. Law Dictionary, h. t. Vide Rutherf. Inst. 253; Hall's Pr. 14.

5. The right of voting at an election of an incorporated company by proxy is not a general right, and the party claiming it must show a special authority for that purpose. Ang. on Corp. 67-69; 1 Paige's Ch. Rep. 590; 5 Day's Rep. 329; 5 Cowen, Rep. 426.

PUBERTY, civil law. The age in boys after fourteen years until full age, and in girls after twelve years until full age. Ayl. Pand. 63; Hall's Pract. 14; Toull. Dr. Civ. Fr. tom. 6, p. 100; Inst. 1, 22; Dig. 1, 7, 40, 1; Code, 5, 60, 3.

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.

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