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
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
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
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
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
PRESIDENT. An officer of a company who is to direct the manner in
which business is to be transacted. From the decision of the president there is
an appeal to the body over which he presides.
PRESIDENT OF THE UNITED STATES OF AMERICA. This is the title of the
executive officer of this country.
2. The constitution directs that the executive power shall be vested in a
president of the United States of America. Art. 2, s. 1.
3. This subject will be examined by considering, 1. His qualifications. 2.
His election. 3. The duration of his office. 4. His compensation. 5. His powers.
4. - 1. No person except a natural born a citizen, or a citizen of the United
States at the time of the adoption of this constitution, shall be eligible to
the office of president neither shall any person be eligible to that office who
shall not have attained the age of thirty-five years, and been fourteen years a
resident within the United States. Art. 2, s. 1, n. 5. In case of the removal of
the president from office, or of his death, resignation, or inability to
discharge the powers and duties of the said office, the same shall devolve on
the vice-president; and the congress may by law provide for the removal, death,
resignation, or inability both of the president and vice-president, declaring
what officer shall then act as president and such officer shall act accordingly,
until the disability be removed, or a president shall be elected. Art. 2, s. 1,
5. - 2. He is chosen by electors of president. (q. v.) See Const. U. S. art.
2, s. 1, n. 2, 3, and 4; 1 Kent, Com. 273 Story on the Constit. 1447, et seq.
After his election and before he enters on the execution of his office, he shall
take the following oath or affirmation: "I do solemnly swear (or affirm) that I
will faithfully execute the office of president of the United States, and will,
to the best of my ability, preserve, protect and defend the constitution of the
United States." Article 2, s. 1, n. 8 and 9.
6. - 3. He holds his office for the term of four years; art. 2, s. 1, n. 1;
he is reeligible for successive terms, but no one has ventured, contrary to
public opinion, to be a candidate for a third term.
7. - 4. The president shall, at stated times, receive for his services, a
compensation which shall neither be increased nor diminished during the period
for which he shall have been elected; and he shall not receive, within that
period, any other emolument from the United States, or any of them. Art. 2,
sect. 1, n. 7. The act of the 24th September, 1789, ch. 19, fixed the salary of
the president at twenty-five thousand dollars. This is his salary now.
8. - 5. The powers of the president are to be exercised by him alone, or by
him with the concurrence of the senate.
9. - 1. The constitution has vested in him alone, the following powers: be is
commander-in-chief of the army and navy of the United States, and of the militia
of the several states, when called into the actual service of the United States;
he may require the opinion, in writing, of the principal officers of each of the
executive departments, upon any subject relating to the duties of their
respective offices; and he shall have the power to grant reprieves and pardons
for offences against the United States, except in cases of impeachluent. Art. 2,
s. 2, n. 2. He may appoint all officers of the United States, whose appointments
are not otherwise provided for in the constitution, and which shall be
established by law, when congress shall vest the appointment of such officers in
the president alone. Art. 2, s. 2, n. 2. He shall have power to fill up all
vacancies that may happen during the recess of the senate, by granting
commissions, which shall expire at the end of their next session. Art. 2, sect.
2, n. 3. He shall from time to time give congress information of the state of
the Union, and recommend to their consideration such measures as he shall judge
necessary and expedient; he may, on extraordinary occasions, convene both
houses, or either of them, and in case of disagreement between them with respect
to the time of adjournment, he may adjourn them to such time as he shall think
proper he shall receive ambassadors and other public ministers; he shall take
care that the laws be faithfully executed, and shall commission all officers of
the United States.
10. - 2. His power, with the concurrence of the senate, is as follows: to
make treaties, provided two-thirds of the senators present concur; nominate, and
by and with the advice and consent of the senate, shall appoint ambassadors,
other public ministers and consuls, judges of the supreme court, and all other
officers of the United States whose appointments are not provided for in the
constitution, and which have been established by law; but the congress may by
law vest the appointment of such inferior officers, as they shall think proper,
in the president alone, in the courts of law, or in the heads of departments.
Art. 2, s. 2, n. 2. Vide 1 Kent, Com. Lect. 13; Story on the Const. B. 3, ch.
36; Rawle on the Const. Index, h. t.; Serg. Const. L. Index, h. t.
PRESS. By a figure this word signifies the art of printing. The press
2. All men have a right to print and publish whatever they may deem proper,
unless by doing so they infringe the rights of another, as in the case of
copyrights, (q. v.) when they may be enjoined. For any injury they may commit
against the public or individuals they may be punished, either by indictment, or
by a civil action at the suit of the party injured, when the injury has been
committed against a private individual. Vide Const. of the U. S. Amendm. art. 1,
and Liberty of the Press.
PRESUMPTION, evidence. An inference as to the existence of one fact,
from the existence of some other fact, founded on a previous experience of their
connexion. 3 Stark. Ev. 1234; 1 Phil. Ev. 116; Gilb. Ev. 142; Poth. Tr. des. Ob.
part. 4, c. 3, s. 2, n. 840. Or it, is an opinion, which circumstances, give
rise to, relative to a matter of fact, which they are supposed to attend.
Menthuel sur les Conventions, liv. 1, tit. 5.
2. To constitute such a presumption, a previous experience of the connexion
between the known and inferred facts is essential, of such a nature that as soon
as the existence of the one is established, admitted or assumed, an inference as
to the existence of the other arises, independently of any reasoning upon the
subject. It follows that an inference may be certain or not certain, but merely,
probable, and therefore capable of being rebutted by contrary proof.
3. In general a presumption is more or less strong according as the fact
presumed is a necessary, usual or infrequent consequence of the fact or facts
seen, known, or proven. When the fact inferred is the necessary consequence of
the fact or facts known, the presumption amounts to a proof when it is the
usual, but not invariable consequence, the presumption is weak; but when it is
sometimes, although rarely,the consequence of the fact or facts known, the
presumption is of no weight. Menthuel sur les Conventions, tit. 5. See Domat,
liv. 9, tit. 6 Dig. de probationibus et praesumptionibus.
4. Presumptions are either legal and artificial, or natural.
5. - 1. Legal or artificial presumptions are such as derive from the law a
technical or artificial, operation and effect, beyond their mere natural.
tendency to produce belief, and operate uniformly, without applying the process
of reasoning on which they are founded, to the circumstances of the particular
case. For instance, at the expiration of twenty years, without payment of
interest on a bond, or other acknowledgment of its existence, satisfaction is to
be presumed; but if a single day less than twenty years has elapsed, the
presumption of satisfaction from mere lapse of time, does not arise; this is
evidently an artificial and arbitrary distinction. 4 Greenl. 270; 10 John. R.
338; 9 Cowen, R. 653; 2 M'Cord, R. 439; 4 Burr. 1963; Lofft, 320; 1 T. R. 271; 6
East, R. 215; 1 Campb. R. 29. An example of another nature is given under this
head by the civilians. If a mother and her infant at the breast perish in the
same conflagration, the law presumes that the mother survived, and that the
infant perished first, on account of its weakness, and on this ground the
succession belongs to the heirs of the mother. See Death, 9 to 14.
6. Legal presumptions are of two kinds: first, such as are made by the law
itself, or presumptions of mere law; secondly, such as are to be made by a jury,
or presumptions of law and fact.
7. - 1st. Presumptions of mere law, are either absolute and conclusive; as,
for instance, the presumption of law that a bond or other specialty was executed
upon a good consideration, cannot be rebutted by evidence, so long as the
instrument is not impeached for fraud; 4 Burr. 2225; or they are not absolute,
and may be rebutted evidence; for example, the law presumes that a bill of
exchange was accepted on a good consideration, but that presumption may be
rebutted by proof to the contrary.
8. - 2d. Presumptions of law and fact are such artificial presumptions as are
recognized aud warranted by the law as the pro er inferences to be made by
juries under particular circumstances; for instance, au unqualified refusal to
deliver up the goods on demand made by the owner, does not fall within any
definition of a conversion, but inasmuch as the detention is attended with all
the evils of a conversion to the owner, the law makes it, in its effects and
consequences, equivalent to a conversion, by directing or advising the jury to
infer a conversion from the facts of demand and refusal.
9. - 2. Natural presumptions depend upon their own form and efficacy in
generating belief or conviction on the mind, as derived from these connexions
which are pointed out by experience; they are wholly independent of any
artificial connexions and relations, and differ from mere presumptions of law in
this essential respect, that those depend, or rather are a branch of the
particular system of jurisprudence to which they belong; but mere natural
presumptions are derived wholly by means of the common experience of mankind,
from the course of nature and the ordinary habits of society. Vide, generally,
Stark. Ev. h. t.; 1 Phil. Ev. 116; Civ. Code of Lo. 2263 to 2267; 17 Vin. Ab.
567; 12 Id. 124; 1 Supp. to Ves. jr. 37, 188, 489; 2 Id. 51, 223, 442; Bac. Ab.
Evidence, H; Arch. Civ. Pl. 384; Toull. Dr. Civ. Fr. liv. 3, t. 3, o. 4, s. 3;
Poth. Tr. des Obl. part 4, c. 3, s. 2; Matt. on Pres.; Gresl. Eq. Ev. pt. 3, c.
4, 363; 2 Poth. Ob. by Evans, 340; 3 Bouv. Inst. n. 3058, et seq.
PRESUMPTIVE HEIR. One who, if the ancestor should die immediately,
would under the present circumstances of things be his heir, but whose right of
inheritance may be defeated by the contingency of some nearer heir being born;
as a brother, who is the presumptive heir, may be defeated by the birth of a
child to the ancestor. 2 Bl. Com. 208.
PRET A USAGE. Loan for use. This phrase is used in the French law
instead of commodatum. (q. v.)
PRETENTION, French law. The claim made to a thing which a party
believes himself entitled to demand, but which is not admitted or adjudged to be
2. The words rights, actions and pretensions, are usually joined, not that
they are synonymous, for right is something positive and certain, action is what
is demanded, while pretention is sometimes not even accompanied by a demand.
PRETERITION, civil law. The omission by a testator of some one of his
heirs who is entitled to a legitime, (q. v.) in the succession.
2. Among the Romans, the preterition of children when made by the mother were
presumed to have been made with design; the preterition of sons by any other
testator was considered as a wrong and avoided the will, except the will of a
soldier in service, which was not subject to so much form.
PRETEXT. The reasons assigned to justify an act, which have only the
appearance of truth, and which are without foundation; or which if true are not
the true reasons for such act. Vattel, liv. 3, c. 3, 32.
PRETIUM AFFECTIONIS. An imaginary value put upon a thing by the fancy
of the owner in his affection for it, or for the person from whom he obtained
it. Bell's Dict. h. t.
2. When an injury has been done to an article, it has been questioned whether
in estimating the damage there is any just ground in any case, for admitting the
pretium affectionis? It seems that when the injury has been done accidentally by
culpable negligence, such an estimation of damages would be unjust, but when the
mischief has been intentional, it ought to be so admitted. Kames on Eq. 74, 75.
PREVARICATION. Praevaricatio, civil law. The acting with
unfaithfulness and want of probity. The term is applied principally to the act
of concealing a crime. Dig. 47, 15, 6.
PREVENTION, civil and French law. The right of a judge to take
cognizance of an action over which he has concurrent jurisdiction with another
2. In Pennsylvania it has been ruled that a justice of the peace cannot take
cognizance of a cause which has been previously decided by another justice. 2
Dall. 77; Id. 114.