PRACTICE. The form, manner and order of conducting and carrying on
suits or prosecutions in the courts through their various stages, according, to
the principles of law, and the rules laid down by the respective courts.
2. By practice is also meant the business which an attorney or counsellor
does; as, A B has a good practice.
3. The books on practice are very numerous; among the most popular are those
Of Tidd, Chiity, Archbold, Sellon, Graham, Dunlap, Caines, Troubat and Haly,
4. A settled, uniform, and loll, continued practice, without objection is
evideuce of what the law is, and such practice is based on principles which are
founded in justice and convenience. Buck, 279; 2 Russ. R. 19, 570; 2 Jac. It.
232; 5 T. R. 380; 1 Y. & J. 167, 168; 2 Crompt. & M. 55; Ram on Judgm.
PRAEDA BELLICA. Lat. Booty; property seized in war. Vide Booty; Prize.
PRAECIPE or PRECIPE, practice. The name of the written instructions
given by an attorney or plaintiff to the clerk or prothonotary of a; court,
whose duty it is to make out the writ, for the making of the same.
PRAEDIAL. That which arises immediately from the ground; as, grain of
all sorts, hay, wood, fruits, herbs, and the like.
PRAEDIUM DOMINANS, civil law. The name given to an estate to which a
servitude is due; it is called the ruling estate.
PRAEDIUM RUSTICUM, civil law. By this is understood all heritages
whicb are not destined for the use of man's habitation; such, for example, as
lands, meadows, orchards, gardens, woods, even though they should be within the
boundaries of a city.
PRAEDIUM SERVIENS, Civil law. The name of an estate which suffers or
yields a service to another estate.
PRAEDIUM URBANUM, civil law. By this term is understood buildings and
edifices intended for the habitation and use of man, whether they be built in
cities or whether they be constructed in the country.
PRAEFECTUS VIGILUM, Roman civ. law. The chief officer of the night
watch. His jurisdiction extended to certain offences affecting the public peace;
and even to larcenies. But he could inflict only slight punishments.
PRAEMUNIRE. In older to prevent the pope from assuming the supremacy
in granting ecclesiastical livings, a number of statutes were made in England
during the reigns of Edward I., and his successors, punishing certain acts of
submission to the papal authority, therein mentioned. In the writ for the
execution of these statutes, the words praemunire facias, being used, to command
a citation of the party, gave not only to the writ, but to the offence itself,
of maintaining the papal power, the name of praemunire. Co. Lit. 129; Jacob's L.
D. h. t.
PRAETOR, Roman civil law. A municipal officer of Rome, so called
because, (praeiret populo,) he went before or took precedence of the people. The
consuls were at first called praetors. Liv. Hist. III. 55. He was a sort of
minister of justice, invested with certain legislative powers, especially in
regard to the forms or formalities of legal proceedings. Ordinarily, be aid not
decide causes as a judge, but prepared the grounds of decision for the judge and
sent to, him the questions to be decided between the parties. The judge was
always chosen by the parties, either directly, or by rejecting, under certain
rules and limitations, the persons proposes to them by the praetor. Hence the
saying of Cicero, (pro Cluentis, 43,) that no one could be judged except by a
judge of his own choice. There were several kinds of officers called proctors.
See Vicat, Vocab.
2. Before entering on his functions he published an edict announcing the
system adopted by him for the application and interpretation of the laws during
his magistracy. His authority extended over all jurisdictions, and was summarily
expressed by the word do, dico, addico, i, e. do I give the action, dico I
declare the law, I promulgate the edict, addico I invest the judge with the
right of judging. There were certain cases which he was bound to decide himself,
assisted by a council chosen by himself perhaps the Decemvirs. But the greater
part of causes brought before him, be sent either to a judge, an arbitrator, or
to recuperators, (recuperatores,) or to the centumvirs, as before stated. Under
the empire the powers of the praetor passed by degrees to the praefect of the
praetorium, or the praefect of the city; so that this magistrate, who at first
ranked with the consuls, at last dwindled into a director or manager of the
public spectacles or games.
3. Till lately, there were officers in certain cities of Germany denominated
praetors Vide 1 Kent, Com. 528.
PRAGMATIC SANCTION, French law. This expression is used to designate
those ordinances which concern the most important object of the civil or
ecclesiastical administration. Merl. Repert, h. t.; 1 Fournel, Hist. des
Avocats, 24, 38, 39. 2. In the civil law, the answer given by the emperors on
questions of law, when consulted by a corporation or the citizens of a province,
or of a, municipality, was called a pragmatic sanction. Lecons El. du Dr. Civ.
Rom. 53. This differed from a rescript. (q. v.)
PRAYER, chanc. pleadings. That part of a bill which asks for relief.
2. The skill of the solicitor is to be exercised in framing this part of the
bill. An accurate specification of the matters to be decreed in complicated
cases, requires great discernment and experience; Coop. Eq. Pl. 13; it is varied
as the case is made out, concluding always with a prayer of general relief, at
the discretion of the court. Mitf. Pl. 45.
PRAYER OF PROCESS, chanc. plead. That part of a bill which prays that
the defendant be compelled to appear and answer the bill, and abide the
determination of the court on the subject, is called prayer of process. This
prayer must contain the name's of all Persons who are intended to be made
parties. Coop. Eq. Pl. 16; Story, Eq. Pl. 44.
PRAYER FOR RELIEF, chan. pleading. This is the name of that part of
the bill, which, as the phrase imports, prays for relief. This prayer is either
general or special but the general course is for the plaintiff to make a special
prayer for particular relief to which he thinks himself entitled, and then to
conclude with a prayer of general relief at the discretion of the court. Story,
Eq. Pl. 40; 4 Bouv. Inst. n. 4174-6.
PREAMBLE. A preface, an introduction or explanation of what is to
follow: that clause at the head of acts of congress or other legislatures which
explains the reasons why the act is made. Preambles are also frequently put in
contracts to, explain the motives of the contracting parties,
2. A preamble is said to be the key of a statute, to open the minds of the
makers as to the mischiefs which are to be remedied, and the objects which are
to be accomplished by the provisions of the statutes. It cannot amount, by
implication, to enlarge what is expressly given. 1 Story on Const. B 3, c. 6.
How far a preamble is to be considered evidence of the facts it recites, see 4
M. & S. 532; 1 Phil. Ev. 239; 2 Russ. on Cr. 720; and see, generally, Ersk.
L. of Scotl. 1, 1, 18; Toull. liv. 3, n. 318; 2 Supp. to Ves. jr. 239; 4 L. R.
55; Barr. on the Stat. 353, 370.
PRECARIOUS RIGHT. The right which the owner of a thing transfers to
another, to enjoy the same until it shall please the owner to revoke it.
2. If there is a time fixed during which the right may be used it is then
vested for that time, and cannot be revoked until after its expiration. Wolff,
PRECARIUM. The name of a contract among civilians, by which the owner
of a thing at the request of another person, gives him a thing to use as long as
the owner shall please. Poth. h. t. n. 87. See Yelv. 172; Cro. Jac. 236; 9
Cowen, 687; Roll. R. 128; Bac. Ab. Bailment, c; Ersk. Prin. B. 3, t. 1, n. 9;
Wolff, Ins. Nat. 333.
2. A tenancy at will is a right of this kind.
PRECATORY WORDS. Expressions in a will praying or requesting that a
thing shall be done.
2. Although recommendatory words used by a testator, of themselves, seem to
leave the devisee to act as he may deem proper, giving him a discretion, as when
a testator gives an estate to a devisee, and adds that he hopes, recommends, has
a confidence, wish or desire that the devisee shall do certain things for the
benefit of another person; yet courts of equity have construed such precatory
expressions as creating a trust. 18 Ves. 41; 8 Ves. 380; Bac. Ab. Legacies, B,
3. But this construction will not prevail when either the objects to be
benefited are imperfectly described, or the amount of property to which the
trust should attach, is not sufficiently defined . 1 Bro. C. C. 142; 1 Sim. 542,
556. See 2 Story, Eq. Jur. 1070; Lewin on Trusts, 77; 4 Bouv. Inst. n. 3953.
PRECEDENCE. The right of being first placed in a certain order, the
first rank being supposed the most honorable.
2. In this country no precedence is given by law to men.
3. Nations, in their intercourse with each other, do not admit any
precedence; hence in their treaties in one copy one is named first, and the
other in the other. In some cases of officers when one must of necessity act as
the chief, the oldest in commission will have precedence; as when the president
of a court is not present, the associate who has the oldest commission will have
a precedence; or if their. commissions bear the same date, then the oldest man.
4. In. the, army and navy there is an order of precedence which regulates the
officers in their command.
PRECEDENTS. the decision of courts of justice; when exactly in point
with a case before the court, they are generally held to have a binding
authority, as well to keep the scale of justice even and steady, as because the
law in that case has been solemnly declared and determined. 9 M. R. 355.
2. To render precedents valid, they must be founded in reason and justice;
Hob. 270; must have been made upon argument, and be the solemn decision of the
court; 4 Co. 94; and in order to give them binding effect, there must be a
current of decisions. Cro. Car. 528; Cro. Jac. 386; 8 Co. 163.
3. According to Lord Talbot, it is "much better to stick to the known general
rules, than to follow any one particular precedent, which may be founded on
reason, unknown to us." Cas. Temp. Talb. 26. Blackstone, 1 Com. 70, says, that a
former decision is in general to be followed, unless "manifestly absurd or
unjust,", and, in the latter case, ii is declared, when overruled, not that the
former sentence was bad law, but that it was not law.
4. Precedents can only be useful when they show that the case has been
decided upon a certain principle, and ought not to be binding when contrary to
such principle. If a precedent is to be followed because it is a precedent, even
when decided against an established rule of law, there can be no possible
correction of abuses, because the fact of, their existence renders them above
the law. It is always safe to rely upon principles. See Principle; Rewon. de 16
Vin. Ab. 499; Wesk. on Inst. h. t.: 2 Swanst. 163; 2 Jac. & W. 31; 3 Ves.
527; 2 Atk. 559; 2 P. Wms. 258; 2 Bro. C. C. 86; 1 Ves. jr. 11; and 2 Evans
Poth. 377, where the author argues against the policy of making precedents
binding when contrary to reason. See also 1 Kent, Comm.475-77; Liv.Syst. 104-5;
Gresl. Ev. 300; 16 Johns. R. 402; 20 Johns. R. 722; Cro. Jac. 527; 33 H. VII.
41; Jones, Bailment, 46; and the articles Reason and Stare decisis.
PRECEPT. A writ directed to the sheriff or other officer, commanding
him to do something. The term is derived from the operative praecipimus, we
PRECINCT. The district for which a high or petty constable is
appointed, is in England, called a precinct. Willc. Office of Const. xii.
2. In day time all persons are bound to recognize a constable acting within
his own precincts; after night the constable is required to make himself known,
and it is, indeed, proper he should do so at all times. Ibid. n. 265, p. 93.
PRECIPUT, French law. An object which is ascertained by law or the
agreement of the parties, and which is first to be taken out of property held in
common, by one having a right, before a partition takes place.
2. The preciput is an advantage, or a principal part to which some one is
entitled, praecipium jus, which is the origin of the word preciput. Dict. de
Jur. h. t.; Poth. h. t. By preciput is also understood the right to sue out the
PRECLUDI NON, pleading. A technical allegation contained in a
replication which denies or confesses and avoids the plea. It is usually in the
following form; "And the said A B, as to the plea of the said C D, by him
secondly above pleaded, says, that he the said A B, by reason of any thing by
the said C D, in that plea alleged, ought not to be barred from having and
maintaining his aforesaid action thereof against the said C D, because he says
that," &c. 2 Wils. 42; 1 Chit. Pl. 573.
PRECOGNITION, Scotch law. The examination of witnesses who were
present at the commission of a criminal act, upon the special circumstances
attending it, in order to know whether there is ground for a trial, and to serve
for direction to the prosecutor. But the persons examined may insist on having
their declaration cancelled before thev give testimony at the trial. Ersk.
Princ. B. 4, t. 4, n. 49.
PRECONTRACT. An engagement entered into by a person, which renders him
unable to enter into another; as a promise or covenant of marriage to be had
afterwards. When made per verba de presenti, it is in fact a marriage, and in
that case the party making it cannot marry another person.
PREDECESSOR. One who has preceded another.
2. This term is applied in particular to corporators who are now no longer
such, and whose rights have been vested in their successor; the word ancestor is
more usually applicable to common persons. The predecessor in a corporation
stands in the same relation to the successor, that the ancestor does to the
3. The term predecessor is also used to designate one who has filled an
office or station before the present incumbent.
PRE-EMPTION, intern. law. The right of preemption is the right of a
nation to detain the merchandise of strangers passing through her territories or
seas, in order to afford to her subjects the preference of purchase. 1 Chit.
Com. Law, 103; 1 Bl. Com. 287.
2. This right is sometimes regulated by treaty. In that which was made
between the United States and Great Britain, bearing date the 10th day of
November, 1794, ratified in 1795, it was agreed, art. 18, after mentioning that
the usual munitions of war, and also naval materials should be confiscated as
contraband, that "whereas the difficulty of agreeing on precise cases in which
alone provisions and other articles not generally contraband may be regarded as
such, renders it expedient to provide against the inconveniences and
misunderstandings which might thence arise. It is further agreed that whenever
any such articles so being contraband according to the existing laws of nations,
shall for that reason be seized, the same shall not be confiscated, but the
owners thereof shall be speedily and completely indemnified; an the captors, or
in their default-the government under whose authority they act, shall pay to the
masters or owners of such vessel the full value of all articles, with a
reasonable mercantile profit thereon, together with the freight, and also the
damages incident to such detention." See Mann. Com. B. 3, c. 8.
3. By the laws of the United States the right given to settlers of public
lands, to purchase them in preference to others, is called the preemption right.
See act of L. April 29, 1830, 4 Sharsw. Cont. of Story, U. S. 2212.
PREFECT, French law. A chief officer invested with the superintendence
of the administration of the laws in each department. Merl. Repert. h. t.
PREFERENCE. The paying or securing to one or more of his creditors, by
an insolvent debtor, the whole or a part of their claim, to the exclusion of the
rest. By preference is also meant the right which a creditor has acquired over
others to be paid first out of the assets of his debtor, as, when a creditor has
obtained a judgment against his debtor which binds the latter's land, he has a
2. Voluntary preferences are forbidden by the insolvent laws of some of the
states, and are void, when made in a general assignment for the benefit of
creditors. Vide Insolvent; Priority.