PROFESSION. This word has several significations. 1. It is a public
declaration respecting something. Code, 10, 41, 6.
2. It i's a state, art, or mystery; as the legal profession. Dig. 1, 18, 6,
4; Domat, Dr. Pub. 1. 1, t. 9, s. 1, n. 7. 3. In the ecclesiastical law, it is
the act of entering into a religious order. See 17 Vin. Ab. 545.
PROFITS. In general, by this term is understood the benefit which a
man derives from a thing. It is more particularly applied to such benefit as
arises from his labor and skill.
2. It has, however, several other meanings. 1. Under the term profits, is
comprehended the produce of the soil, whether it arise above or below the
surface as herbage, wood, turf, coals, minerals, stones, also fish in a pond or
running water. Profits are divided into profits a prendre, or those taken and
enjoyed by the mere act of the proprietor himself; and profits a rendre, namely,
such as are received at the hands of, and rendered by another. Ham. N. P. 172.
3. - 2. When land is devised to pay debts and legacies out of rents and
profits, the land may be sold; otherwise, if out of the annual rents and
profits. 1 Vern. 104, ca. 90.
4. - 3. The natural meaning of raising by rents and profits, is by the yearly
profits but to prevent an inconvenience the word profits has, in some particular
instances, been extended to any profits the land will yield, either by sale or
mortgage; 1 Ch. Ca. 176; 2 Ch. Ca. 205; 2 Vern. 420; 1 P. Wms. 468; Pre. Ch.
586; 2 P. Wms. 19; 2 Ves. Jr. 481, n.; 2 Bro. Par. Cas. 418; 1 Atk. 506. Id.
550; 2 Atk. 358 where cases on raising portions in the life of parents and to
the prejudice of the remainder-man are considered; and vide Powell on Mort. 90,
et seq. But in no case where there are subsequent restraining words, has the
word profit; been extended. Pre. Ch. 586, note, and the cases cited there; 1
Atk. 506; 2 Atk. 105.
5. - 4. A devise of profit considered, at law and in equity, a devise of the
land itself. 1 Atk. 506; 1 Ves. 171 et vide 1 Ves. 42; 2 Atk. 358; 1 Bro. Ch. R.
310; 9 Mus. R. 372; 1 Pick. R. 224; 2 Pick. R. 425; 4 Pick. R. 203.
6. - 5. Where an assignment of rents and profits recites the intention of the
parties then to make a security for money borrowed, and there is a covenant for
further assurance, this amounts to an equitable lien, and would entitle the
assignee to insist upon a mortgage. 2 Cox, 233; S. C. 1 Ves. Jr. 162; see also 3
Bro. C. C. 538; S. C. 1 Ves. Jr. 477.
7. - 6. Much doubt has arisen upon the question, whether the profit expected
to arise upon maritime commerce be a proper subject of insurauce. 1 Marsh. on
Ins. 94. In some countries, as Holland and France, Code de Com. 347, it is
illegal to insure profits; but in England, profits expected to arise from a
cargo of goods may be insured. 1 Marsh. on Ins. 97.
8. - 7. Personal representatives aud trustees are generally bound to account
for all the profits they make out of the assets entrusted to them. See Toll. Ex.
486; 1 Serg. & Rawle, 245; 1 T. R. 295; 1 M. & S. 412; Supp. to Ves.
Jr., Notes to Wilkinson v. Strafford, 1 Ves. Jr. 32 Paley on Agency, 48, 9.
9. - 8. In cases of breach of contract, the plaintiff cannot in general
recover damages for the profits he might have made. 1 R. 85, 94; S. C. 3 W. C.
C. R. 184; 1 Pet. R. 172; see also 1 Yeates, 36; 11 Serg. & Rawle, 445.
10. - 9. It is a general rule that any participation in the profits of a
trade or business, makes a person receiving such profits responsible as a
partner. Gow on Part.; 6 Serg. & Rawle, 259; 1 Com. on Contr. 287 to 293.
See generally on this subject, 3 W. C. C. R. 110; 15 Serg. & Rawle, 137;
Chit. on Contr. 67; 6 Watts & Serg. 139.
11. But it is proper to observe that to make one a partner he must have such
an interest in the profits as will entitle him to an account as it partner; he
must be entitled to them as a principal. A clerk who receives a salary to be
paid out of the profits would not be so considered, for there is a distinction
between receiving the profits as sucli, and a commission on tile profits, and
although this seems, at first sight, but a flimsy distinction, it appears to be
a well settled rule of law. 15 S. & R. 157; 6 S. R. 259; 1 Denio, 337; 20
Wend. 70; 3 M. Gr. & So. 32; 17 Ves. 404; 1 Camp. 329; 2 H. Bl. 590; 3 M. G.
& S. 651; 3 Kent, Com. 25, note (b) 4th ed.; Cary on Partn. 11; Colly on
Part. p. 17; Addis on Contr. 451; 4 M. & S. 244; Russ. & Ry. 141; 3 M.
& P. 48; 5 Taunt. 74; 4 T. R. 144. The Roman law, Dig. 17, 2, 44; Poth.
Pand. 17, 2, 4; and the French law, 5 Duv. Dr. Civ. Fr. n. 48; 17 Dur. Dr. Fr.
n. 332; Poth. du Contrat de Societe, n. 13, recognize the same distinction. Such
is also the law of Scotland. Burt. Man. P. L. 178. When there are no
stipulations to the contrary, the profits are to be enjoyed, and the losses
borne by all the partners in equal proportions. Wats. Partn. 59, 60; Colly.
Partn. 105; 6 Wend. 263; Story, Partn. 24; 7 Bligh, R. 132; Wilson & Shaw.
12. - 10. A purchaser is entitled to the profits of the estate from the time
fixed upon for completing the contract, whether he does or does not take
possession of the estate. Sugd. on Vend. 353. See 6 Ves. Jr. 143, 352.
13. Profits among merchants are divided into gross profits and net profits.
The former are the profits without any deduction for losses; the latter are the
same profits, after having deducted all the losses. Story, Partn. 34.
PROGRESSION. That state of a business which is neither the
commencement nor the end. Some act done after the matter has commenced and
before it is completed. Plowd. 343. Vide Consummation; Inception.
PROHIBITION, practice. The name of a writ issued by a superior court,
directed to the judge and parties of a suit in an inferior court, commanding
them to cease from the prosecution of the same, upon a suggestion that the cause
originally, or some collateral matter arising therein, does not belong to that
jurisdiction, but to the cognizance of some other court. 3 Bl. Com. 112; Com.
Dig. h. t.; Bac. Ab. h. t. Saund. Index, h. t.; Vin. Ab. h. t.; 2 Sell. Pr. 308;
Ayliffe's Parerg. 434; 2 Hen. Bl.
2. The writ of prohibition may also be issued when, having jurisdiction, the
court has attempted to proceed by rules differing from those which ought to be
observed; Bull. N. P. 219; or when, by the exercise of its jurisdiction, the
inferior court would defeat a legal right. 2 Chit. Pr. 355.
PROHIBITIVE IMPEDIMENTS, canon law. Those impediments to a marriage
which are only followed by a punishment, but do not render the marriage null.
Bowy. Alod. Civ. Law, 44.
PROJET. In international law, the draft of a proposed treaty or
convention is called a projet.
PROLES. Progeny, such issue as proceeds from a lawful marriage; and,
in its enlarged sense, it signifies any children.
PROLETARIUS, civil law. One who has no property to be taxed; and paid
a tax only on account of his cliildren, proles; a person of mean or common
extraction. The word has become Frenchified, proletaire signifying one of the
PROLICIDE, med. jurisp. Medical jurists have employed this word to
designate the destruction of the human divided the subject into foeticide, (q.
v.) or the destruction of the foetus in utero; and infanticide, (q. v.) or the
destruction of the new-born infant. Ryan, Med. Jur. 137.
PROLYTAE, Rom. civil law. The term used to denominate students of law
during the fifth and last year of their studies. They were left during this
year, very much to their own direction, and took the name (prolytoi) Prolytae
omnino soluti. They studied chiefly the code and the imperial constitutions. See
Dig. Proef. Prim. Const. 2; Calvini Lex ad Voc.
PROLIXITY. The unnecessary and superfluous statement of facts in
pleading or in evidence. This will be rejected as impertinent. 7 Price, 278, n.
PROLOCUTOR. In the ecclesiastical law, signifies a president or
chairman of a convocation.
PROLONGATION. Time added to the duration of something.
2. When the time is lengthened during which a party is to perform a contract,
the sureties of such a party are in general discharged, unless the sureties
consent to such prolongation. See Giving time.
3. In the civil law the prolongation of time to the principal did not
discharge the surety. Dig. 2, 14, 27; Id. 12, 1, 40.
PROMATERTERA. Great maternal aunt; the sister of one's grandmother.
Inst. 3, 6, 3; Dig. 38, 10, 10, 14, et seq.
PROMISE, contr. An engagement by which the promisor contracts towards
another to perform or do something to the advantage of the latter.
2. When a promise is reduced to the form of a written agreement under seal,
it is called a covenant.
3. In order to be binding on the promisor, the promise must be made upon a
sufficient con@ideration - when made without consideration, however, it may be
binding in foro conscientice, it is not obliggtory in law, being nudtim pactum.
Rutherf. Inst. 85; 18 Eng. C. L. Rep. 180, note a; Merl. Rep. h. t.
4. When a promise is made, all that is said at the time, in relation to it,
must be considered; if, therefore, a man promise to pay all he owes, accompanied
by a denial that he owes anything, no action will lie to enforce such a promise.
15 Wend. 187.
5. And when the promise is conditional, the condition must be performed
before it becomes of binding force. 7 John. 36. Vide Condition. Promises are
express or implied. Vide Undertaking, and 5 East, 17 2 Leon. 224, 5; 4 B. &
PROMISE OF MARRIAGE. A contract mutually entered into by a man and a
woman capable of contracting matrimony, that they will marry each other.
2. When one of the contracting parties violates his or her promise to the
other, the latter may support an action against the former for damages, which
are sometimes very liberally given. To entitle the plaintiff to recover damages,
however, the defendant must not have been incapable of making the contract at,
the time, and such incapacity must not have been known to the opposite party;
as, if a married man were to promise to marry a woman, and he afterwards refused
to do so.
3. The canon law punished these breaches of promises by ecclesiastical
4. According to the ancient jurisprudence of France, damage's could have been
recovered for the in execution of this engagement, and cases are reported which
show a considerable liberality on this subject. M. Maynon, counsellor in the
parliament of Paris, was condemned to sixty thousand livres damages; and a M.
Hebert to fourteen thousand livres. D'Hericourt, Lois Ecclesiastiques, titre du
Mariage, art. 1, n. 13. By the modern law of France, damages may be recovered
for the violation of this contract.
5. In Germany and Holland damages may also be recovered. Voet, in Pandec tas,
tit. de sponsalibus, n. 12; Huberus, in Pandectas, eod. tit. n. 19. And the
Prussian code regulates the amount of damages to be paid under a variety of
circumstances. Part 1, b. 2, tit. 2. Vide 2 Chit. Pr. 52; Rose, Civ. Ev. 193; 2
Car. & P. 631; 4 Esp. R. 258; 1 C. & P. 350; Holt, R. 151; S. C. 3 E. C.
L. R. 57; 7 Cowen, 22; 1 John. Cas. 116; 6 Cowen, 254; 4 Cowen, 355; 7 Wend.
PROMISES, evidence. When a defendant has been arrested, he is
frequently in duced to make confessions in consequence of promises made to him,
that if he will tell the truth, he will be either discharged or favored: in such
a case evidence of the confession cannot be received, because being obtained by
the flattery of hope, it comes in so questionable a shape, when it is to be
considered evidence of guilt, that no credit ought to be given to it. 1 Leach,
263. This is the principle, but what amounts to a promise is not so easily
defined. Vide Confession.
PROMISEE. A person to whom a promise has been made.
2. In general a promisee can maintain an action on a promise made to him, but
when the consideration moves not from the promisee, but some other person, the
latter, and not the promisee, has a cause of action, because he is the person
for whose use the contract was made. Latch, 272; Poph. 81; 3 Cro. 77; 1 Raym,
271, 368; 4 B. & Ad. 434; 1 N. & M. 303; S. C. Cowp. 437; S. C. Dougl.
142. But see Carth. 5 2 Ventr. 307; 9 M. & W. 92) 96.
PROMISOR. One who makes a promise.
2. The promisor is bound to fulfil his promise, unless when it is contrary to
law, as a promise to steal or to commit an assault and battery; when the
fulfilment is prevented by the act of God, as where one has agreed to teach
another drawing and he loses his sight, so that he cannot teach it; when the
promisee prevents the promisor from doing what he agreed to do; when the
promisor has been discharged from his promise by the promisee, when the promise,
has been made without a sufficient consideration; and, perhaps, in some other
cases, the duties of the promisor are at an end.
PROMISSORY NOTE, contracts. A written promise to pay a certain sum of
money, at a future time, unconditionally. 7 Watts & S. 264; 2 Humph. R. 143;
10 Wend. 675; Minor, R. 263; 7 Misso. 42; 2 Cowen, 536; 6 N. H. Rep. 364; 7
Vern. 22. A promissory note differs from a mere acknowledgment of debt, without
any promise to pay, as when the debtor gives his creditor an I 0 U. (q. v.) See
2 Yerg. 50; 15 M. & W. 23. But see 2 Humph. 143; 6 Alab. R. 373. In its form
it usually contains a promise to pay, at a time therein expressed, a sum of
money to a certain person therein named, or to his order, for value received. It
is dated and signed by the maker. It is never under seal.
2. He who makes the promise is called the maker, and he to whom it is made is
the payee. Bayley on Bills, 1; 3 Kent, Com, 46.
3. Although a promissory note, in its original shape, bears no resemblance to
a bill of exchange; yet, when indorsed, it is exactly similar to one; for then
it is an order by the indorser of the note upon the maker to pay to the
indorsee. The indorser is as it were the drawer; the maker, the acceptor; and
the indorsee, the payee. 4 Burr. 669; 4 T. R. 148; Burr. 1224.
4. Most of the rules applicable to bills of exchange, equally affect
promissory notes. No particular form is requisite to these instruments; a
promise to deliver the money, or to be accountable for it, or that the payee
shall have it, is sufficient. Chit. on Bills, 53, 54.
5. There are two principal qualities essential to the validity of a note;
first, that it be payable at all events, not dependent on any contingency; 20
Pick. 132; 22 Pick. 132 nor payable out of any particular fund. 3 J. J. Marsh.
542; 5 Pike, R. 441; 2 Blackf. 48; 1 Bibb, 503; 1 S. M. 393; 3 J. J. Marsh. 170;
3 Pick. R. 541; 4 Hawks, 102; 5 How. S. C. R. 382. And, secondly, it is required
that it be for the payment of money only; 10 Serg. & Rawle, 94; 4 Watts, R.
400; 11 Verm. R. 268; and not in bank notes, though it has been held differently
in the state of New York. 9 Johns. R. 120; 19 Johns. R. 144.
6. A promissory note payable to order or bearer passes by indorsement, and
although a chose in action, the holder may bring suit on it in his own name.
Although a simple contract, a sufficient consideration is implied from the
nature of the instrument. Vide 5 Com. Dig. 133, n., 151, 472 Smith on Merc. Law,
B. 3, c. 1; 4 B. & Cr. 235 7 D. P. C. 598; 8 D. P. C. 441 1 Car. &
Marsh. 16. Vide Bank note; Note; Reissuable note.
PROMOTERS. In the English law, are those who in popular or penal
actions prosecute in. their own names and the king's, having part of the fines
PROMULGATION. The order given to cause a law to be executed, and to
make it public it differs from publication. (q. v.) 1 Bl. Com. 45; Stat. 6 H.
VI., c. 4.
2. With regard to trade, unless previous notice can be brought home to the
party charged with violating their provisions, laws are to be considered as
beginning to operate in the respective collection districts only from the time
they are received from the proper department by the collector. Paine's C. C. R.
32. See Paine's C. C. R. 2 3.
PROMUTUUM, civil law. A quasi contract, by which he who receives a
certain sum of money, or a certain quantity of fungible things, which have been
paid to him through mistake, contracts towards the payer the obligation of
returning him as much. Poth. De l'Usure, 3eme part. s. 1, a. 1.
2. This contract is called promutuum, because it has much resemblance to that
of mutuum. (q. v.) This resemblance consists, 1st. That in both a sum of money
or some fungible things are required. 2d. That in both there must be a transfer
of the property in the thing. 3d. That in both there must be returned the same
amount or quantity of the thing received. Poth. h. t., n. 133. But though there
is this general resemblance between the two, the mutuum differs essentially from
the promutuum. The former is the actual contract of the parties, made expressly,
but the 'latter is a quasi contract, which is the effect of an error or mistake.
Id. 134; l Bouv. Inst. n. 1125-6.
PRONEPOS. Great Grandson.
PRONOTARY. An ancient word which signifies first notary. The same as
prothonotary. (q. v.)
PRONURUS. The wife of a great grandson.
PROOF, practice. The conviction or persuasion of the mind of a judge
or jury, by the exhibition of evidence, of the reality of a fact alleged: as, to
prove, is to determine or persuade that a thing does or does not exist. 8 Toull.
n. 2; Ayl. Parerg. 442; 2 Phil. Ev. 44, n, a. Proof is the perfection of
evidence, for without evidence there is no proof, although, there may be
evidence which does not amount to proof: for example, a man is found murdered at
a spot where another had been seen walking but a short time before, this fact
would be evidence to show that the latter was the murderer, but, standing alone,
would be very far from proof of it.
2. Ayliffe defines judicial proof to be a clear and evident declaration or
demonstration, of a matter which was before doubtful, conveyed in a judicial
manner by fit and proper arguments, and likewise by all other legal methods;
first, by proper arguments, such as conjectures, presumptions, indicia, and
other adminicular ways and means; and, secondly, by legal method, or methods
according to law, such as witnesses, public instruments, end the like. Parerg.
442 Aso. & Man. Inst. B. 3, t. 7.
PROPER. That which is essential, suitable, adapted, and correct. 2.
Congress is authorized by art, 1, s. 8, of the constitution of the United
States, "to make all laws which shall be necessary and proper, for carrying into
execution the foregoing powers, and all other powers vested by this constitution
of the United States, in any department. or officer thereof." See Necessary and