when three peers are present; but forty members are required to assist in the deliberations of the lower house. When any question arises upon which a difference of opinion is expressed, it becomes necessary to ascertain the numbers on each side. In the Lords, the parties in favor of the question are called "content," and those opposed to it "non-content." In the Commons, these parties are described as the "ayes," and "noes." When the Speaker cannot decide by the voices which party has the majority, or when his decision is disputed, a division takes place. In addition to the power of expressing assent or dissent by a vote, peers may record their opinion, and the grounds of it, by a protest, which is entered in the journals, together with the names of all the peers who concur in it. When matters of great interest are to be debated in the upper house, the Lords are summoned; and in the House of Commons an order is occasionally made that the house be called over, and members not attending when their names are called, are reported as defaulters, and ordered to attend on another day, when, if they are still absent, and no excuse be offered, they are sometimes committed to the custody of the sergeant-at-arms. The business, which occupies nearly the whole attention of both houses, if we except the hearing of appeals by the Lords, and the trial of controverted elections by the Commons, is the passing of bills.-May's Imperial_Parliament. See HOUSE OF LORDS, HOUSE OF COMMONS, AND IMPEACHMENT. arrest another who is guilty of a breach of the peace in his presence. PAROL DEMURRER, abolished by 11 Geo. IV. and 1 Wm. IV. c. 47, s. 10. PAROL EVIDENCE, testimony by the mouth of the witness. It is a general rule that oral evidence shall in no case be received as equivalent to, or as a substitute for, a written instrument, where the latter is required by law, or to give effect to a written instrument, which is defective in any particular, which by law is essential to its validity; or to contradict, alter, or vary a written instrument, either appointed by law, or by the compact of private parties, to be the appropriate and anthentic memorial of the facts which it recites; for by doing so, oral testimony would be admitted in usurpation of a species of evidence decidedly superior in degree. But parol evidence is admissible to defeat a written instrument on the ground of fraud, mistake, &c., or to apply it to its proper subject, or in some instances, as ancillary to such applica tion, to explain the meaning of doubtful terms, or to rebut presumptions arising extrinsically. In these cases the parol evidence does not usurp the place or arrogate the authority of written evidence, but either shows that the instrument ought not to be allowed to operate at all, or is essential in order to give to the instrument its legal effect.-3 Stark. Evid. 752. [Greenleaf on Evid.] The general rule with regard to the admission of parol evidence to explain the meaning, or to add to, vary, or alter the express terms of a deed, is, that it shall not be admitted, except. (1.) PARLIAMENTARY AGENTS, persons whose business is to promote or oppose the pass-where, although the deed is clearly enough ex ing of private acts of Parliament. A solicitor may act as a parliamentary agent. As to the delivery, taxation, and recovery of their costs, see 10 & 11 Vict. c. 69, and 12 & 13 Vict. c. 78. PARLIAMENTARY COMMITTEES, tribunals which have cognizance of railway bills and bills for important and public undertakings, and also of election petitions. PARLIAMENTARY GRANTS FOR EDUCATION. See 7 & 8 Vict. c. 37; 18 & 19 Vict. c. 131; and 19 & 20 Vict. c. 116. PAROCHE, a parish. Parochia est locus quo degit populus alicujus ecclesiæ. 5 Co. 67. (A parish is a place in which the population of a certain church resides.) PAROCHIAL, belonging to a parish. POOR LAWS. See pressed, some ambiguity arises from intrinsic circumstances; (2.) where the language of a charter of a deed has become obscure, and the construction doubtful from antiquity; (3.) where the grant appears uncertain, owing to a want of acquaintance with the grantor's estate; (4.) where it is important to show a different consideration consistent with but not repugnant to that stated in the deed itself; (5.) where it be comes necessary to show a different time of delivery from that at which the deed purports to have been made; (6.) where it is sought to prove a customary right not expressed in the deed, but which is not inconsistent with any of its stipulations; or, lastly, where fraud or illegality in the formation of the deed is relied on to avoid it. If a clause in a deed be so ambignonsly or defectively expressed that a court of justice cannot, even by reference to the context, collect the meaning of the parties, it will be void on account of uncertainty.-Woodf. Land. and Tent. 65. PAROL LEASE, a verbal lease. See 29 Car. II. c. 3, s. 2. PAROLE, the promise made by a prisoner of war, when he has leave to go anywhere, of returning at a time appointed, or not to take up arms till exchanged. PARRICIDE, one who destroys his father; one who destroys or invades any person or thing to whom he owes particular reverence: as his country or patron. Our laws, unlike the ancient laws, distinguish in no respect between the crime of parricide, or that of killing a husband, wife, or master, and the crime of simple murder. See PARRICIDE. PARSON (fr. persona, Lat., because the parson omnium personam in ecclesia sustinet; or from parochianus, the parish-priest.-Johnson. It was anciently written persone.-Todd), the rector or incumbent of a parish; one that has a parochial charge or cure of souls. part until he has read the whole again and again.) Parte quacunque integrante sublatâ tollitur totum. 8 Co. 41. (An integral part being taken away, the whole is taken away.) PARTIAL LOSS. See ABANDONMENT. PARTICEPS CRIMINIS, or FRAUDIS (a partner in crime or fraud). Participes plures sunt quasi unum corpus, in A parson has, during his life, the freehold in eo quod unum jus habent, et oportet quod corhimself of the parsonage-house, the glebe, the pus sit integrum et quod in nullâ parte sit detithes, and other duties. But these are some- fectus. Co. Litt. 164. (Many partners are as times appropriated, that is to say, the benefice one body, inasmuch as they have one right, and is perpetually annexed to some spiritual corpo- it is necessary that the body be perfect, and ration, either sole or aggregate, being the patron that there be a defect in no part.) of the living, which the law esteems equally capable of providing for the service of the church as any single private clergyman. Many appropriations, however, are now in the hands of lay persons, who are usually styled, by way of distinction, lay impropriators. In all appropriations there is generally a spiritual person attached to the same church, under the name of vicar, to whom the spiritual duty or cure of souls belongs, in the same manner as in parsonages not appropriate or rectories to the rector and to whom, on the other hand, a certain portion of the tithes or other emoluments of the church, by way of exception out of those enjoyed by the appropriator, is assigned. The method of becoming a parson or a vicar is much the same. To both there are, in general, four requisites necessary: holy orders, presentation, institution, and induction. A parson or vicar may cease to be so by death, by cession, or taking another benefice, by a consecration to a bishoprick, by resignation, or deprivation.-3 Step. Com. 19. PARSONAGE, the benefice of a parish. PARSON IMPARSONEE (fr. persona impersonata, Lat.), a clerk in complete and full possession of a spiritual benefice. PARSON MORTAL (fr. persona mortalis, Lat.), a rector instituted and inducted for his own life. But any collegiate or conventional body, to whom a church was for ever appropriated, was termed persona immortalis. PARS RATIONABILIS, the ancient division of a man's goods into three equal parts, of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal; or if he died without a wife, he might then dispose of one moiety, and the other went to his children, and so è converso; but if he died without either wife or issue, the whole was at his own disposal. The shares of the wife and children were called their reasonable parts: and the writ de rationabili parte bonorum was given to recover them. This law has been altered by imperceptible degrees, and the deceased may now by will bequeath the whole of his goods and chattels.-2 Step. Com. 192; 1 Wm. Exor. 2. PARTES FINIS NIHIL HABUERUNT, &c. (the parties to the fine had nothing, &c.), an exception taken against a fine levied.-3 Rep. 88. Partem aliquam rectè intelligere nemo potest, antequam totum, iterum atque iterum, perlegerit. 3 Co. 52. (No one can rightly understand any Participes, quasi partis capaces, sive partem capientes, quia res inter eas est communis, ratione plurium personarum. Ibid. 146, b. (Partners, as it were "partes capaces," or partem capientes," because the thing is common to them, by reason of their being many persons.) PARTICULAR ESTATE, that interest which is granted or carved out of a larger estate, which then becomes an expectancy either in re version or remainder. PARTICULAR LIEN, a right of retaining possession of a chattel from the owner, until a certain claim upon it be satisfied. See LIEN. PARTICULAR OF BREACHES. Where an ejectment is brought for a forfeiture, the court, or a judge upon application, will order the plaintiff to give the defendant a particular of the covenants and breaches, &c., on which he means to insist that the defendant has forfeited his term, and that he shall not be allowed to give evidence at the trial of anything not contained in such particular.-C. L. P. Act (1852), s. 175. PARTICULAR OF BREACHES OF, The AND OBJECTIONS TO, PATENT. act for amending the law of patents, 15 & 16 Vict. c. 83, s. 41, enacts that "in any action in any of her Majesty's superior courts of record ment of letters-patent, the plaintiff shall deliver at Westminster, or in Dublin, for the infringewith his declaration particulars of the breaches complained of in the said action; and the defendant, on pleading thereto, shall deliver with his pleas, and the prosecutor in any proceedings by scire facias to repeal letters-patent shall deliver with his declaration particulars of any objections on which he means to rely at the trial in support of the pleas in the said action, or of the suggestions of the said declaration in the proceedings by scire facias respectively; and at the trial of such action or proceedings by scire facias, no evidence shall be allowed to be given in support of any alleged infringement or of any objection impeaching the validity of such letterspatent which shall not be contained in the particu lars delivered as aforesaid. Provided always, that the place or places at or in which and in what manner the invention is alleged to have been used or published prior to the date of the letters-patent shall be stated in such particulars. Provided also, that it shall and may be lawful for any judge at chambers to allow such plaintiff, or defendant, or prosecutor, respectively, to amend the particulars delivered as aforesaid upon such terms as to such judge shall seem fit. Provided also, that at the trial of any proceedings by scire facias, to repeal letters-patent, the defendant shall be entitled to begin and to give evidence in support of such letters patent; and in case evidence shall be adduced on the part of the prosecutor impeaching the validity of such letters-patent, the defendant shall be entitled to the reply." As to particulars of objection to copyright, see 5 & 6 Vict. c. 45, s. 16. PARTICULAR OF CRIMINAL CHARGES. A prosecutor, when a charge is general, is frequently ordered to give the defendant a statement of the acts charged. PARTICULAR OF ESCAPE. The defendant is entitled to a statement of the escape sued for, with the precise day of such escape.2 Chit. Arch. Prac. by Pren. 1149. PARTICULAR OF PAYMENT. Where a defendant pleads payment, a plaintiff, according to a decision of the Court of Common Pleas, may obtain particulars of the payments relied upon, on an affidavit stating that he cannot safely go to trial without them.-Ireland v. Thompson, 4 Bing. N. C. 716, sed qu. See 2 Chit. Arch. Prac. by Pren. 1394. PARTICULAR OF PREMISES, &c. A defendant, if there be any reasonable doubt as to the lands, &c., for which an ejectment is brought, may take out a summons before a judge, and obtain an order calling upon the plaintiff to give him a bill of particulars. The court or a judge may also order the defendant to give a particular of the premises for which he defends. PARTICULAR OF RESIDENCE. Where a plaintiff is unknown to a defendant, the latter may call for a particular of his residence or place of abode from the opposite attorney, and if he refuse to give it, or give a fictitious account of a person who cannot be found, the court or a judge will stay proceedings until security be given for costs.-C. L. P. Act (1852), s. 169. An attorney may in general be compelled by a court or a judge to disclose the place of his client's residence, if the application be made in an early stage of a cause, but he cannot be compelled to disclose the place of his client's residence after verdict. PARTICULAR OF SET-OFF. Where a defendant pleads a set-off, the plaintiff may obtain a particular of the set-off in the same cases as a defendant would be entitled to it, if the matter so set off were declared upon; and if the defendant in such a case do not deliver a bill of particulars within the time limited in the judge's order for that purpose, he will not be allowed to give evidence of his set-off at the trial. PARTICULAR OF THE PLAINTIFF'S DEMAND. By r. 19, H. T. 1853, "with every declaration (unless the writ have been specially indorsed pursuant to s. 25 of the C. L. P. Act, 1852) delivered or filed, containing causes of action such as those set forth in schedule (B) of that act, and numbered from 1 to 14 inclusive, or of a like nature, the plaintiff shall deliver or file full particulars of his demand under such claim, where such particulars can be comprised within three folios; and where the same cannot be comprised within three folios, he shall deliver or file such a statement of the nature of his claim, and the amount of the sum or balance which he claims to be due, as may be comprised within that number of folios, and with every plea of set-off containing claims of a similar nature as those in respect of which a plaintiff is required to deliver or file particulars, the defendant shall in like manner deliver particulars of his set-off. And to secure the delivery or filing of particulars in all such cases, it is ordered that if any such declaration shall be de livered or filed, or any plea of set-off delivered, without such particulars or such statement as aforesaid, and a judge shall afterwards order a delivery of particulars, the plaintiff or defendant, as the case may be, shall not be allowed any costs in respect of any summons, for the purpose of obtaining such order, or of the particulars he may afterwards deliver; and a copy of the particulars of the demand and set-off shall be annexed by the plaintiff's attorney to every record at the time it is entered with the proper officer." Where the declaration contains special counts, it may be laid down as a general rule, that in all actions in which the plaintiff does not specify in the declaration the particulars of his cause of action, a judge, upon summons, will make an order upon him to give the defendant the particulars in writing, and that all proceedings be stayed in the meanwhile. In actions for torts, it is generally the prac tice to refuse particulars of demand, which in most cases are comprised in the declaration. But, under circumstances, a judge will in such actions, compel a delivery of particulars, if there be an affidavit stating that the defendant does not know for what the plaintiff is proceeding. By R. H. T. 1853, r. 21, "a summons for particulars and order thereon may be obtained by a defendant before appearance, and may be made, if the judge think fit, without the production of any affidavit." A judge may make an order at any time before the trial. The term of pleading issuably, and taking short notice of trial, if necessary, will be imposed on a defendant by the order. The order operates as a stay of proceedings from the time of its service till the particulars have been delivered. The particulars must be explicit, and should specify items, dates, and amounts. If they be incorrect, the party who delivered them may have leave to amend them; or if not sufficiently explicit, the other party may take out a summons, and obtain an order for further and better particulars. By r. 21, H. T. 1853, "a defendant shall be allowed the same time for pleading after the delivery of particulars under a judge's order. which he had at the return of the summons; unless otherwise provided for in such order." At the trial, the party who delivered the particulars will be confined in his proofs to the items therein contained, but if it appear from the defendant's evidence, that he is entitled to recover for items not included in the bill, he shall recover them. PARTICULAR TENANTS, alienation by, when they conveyed by a feoffment, fine, or re covery, a greater estate than the law entitled, commission, which is an equitable process to them to make, a forfeiture ensued to the person make the partition required; and upon the rein immediate remainder or reversion. As if a turn of the commissioners, and confirmation of tenant for his own life aliened by feoffment for that return by the court, the partition is finally the life of another or in tail or in fee; these completed by mutual conveyances of the allotbeing estates which either must or may last ments made to the several parties. Where the longer than his own, his creating them was not object is the partition of an advowson, it is done only beyond his power, and inconsistent with the by the decree (without a commission), directing nature of his interest, but was also a forfeiture alternate presentations. Equity is now emof his own particular estate to him in remainder powered by 4 & 5 Vict. c. 35, s. 85, to decree a or reversion, who was entitled to enter imme- partition of copyholds. Where one of the pardiately. ties interested is an infant, the court will now order such infant to execute the necessary deeds instead of waiting till its majority.-Cole v. Sewell, 17 Sim. 40 (1849). The same law which is thus laid down with regard to tenants for life, held also with respect to all tenants of mere chattel-interests. With a view to the more convenient and perfect partition or allotment of the premises, equity frequently decrees a pecuniary compensation to one of the parties for owelty or equality of partition, so as to prevent any injustice or unavoidable inequality, as where one party has laid out large sums in improvements on the estate. This forfeiture differed materially from forfeiture by breach of condition in deed, for in that case the reversioner is in as of his former seisin, and consequently not only the estate of the tenant himself, but all interests derived out of it (even though derived before the forfeiture) were defeated; but in case of such forfeiture by particular tenants, all legal estates by them created (as if tenant for twenty years grant a On a partition every part of the estate needs lease for fifteen), and all charges by him law-not be divided. If there be three houses, it fully made on the lands would have been good and available in law. But from fines and recoveries having been abolished, and from a feoffment not having any longer a tortious operation, by 8 & 9 Vict. c. 106, s. 4, a tenant, by creating a larger interest than he has in the property does not incur a forfeiture, for such a creation is now void pro tanto the excess and good for his own interest.-1 Step. Com. 461. PARTICULARS, the courts have a general jurisdiction independently of statute, to order a detailed statement of the demand in any litigation, or of the defence to be given, that surprise may be avoided, and substantial justice promoted.-2 Chit. Arch. Prac. by Pren. 1380. PARTICULARS OF SALE. See CONDITIONS OF SALE. PARTIES, a number of persons concerned in any business affair; litigants. The parties to an action at law are called in real actions demandant and tenant, and in personal actions plaintiff and defendant, and so in suits in equity. In appeals they are called appellant and respondent. The order in which the parties to a conveyance are set out, is as follows: (1.) The owner of the legal inheritance; (2.) Persons having equitable or beneficial interests in the inheritance; (3.) Persons possessed of chattel interests; (4.) The grantee or releasee; (5.) Trustees for the grantee or releasee. In criminal cases they are the prosecutor and the prisoner or defendant. PARTITION, the act of dividing. PARTITION, Bill for a, a proceeding in Chancery which resembles the action communi dividendo of the civil law. Since the abolition of the inadequate writ of partition at common law by the 3 & 4 Wm. IV. c. 27, s. 36, equity enjoys the exclusive jurisdiction of dividing the estates of joint-tenants, tenants-in-common, and coparceners, which is effected by first ascertaining the rights of the several persons interested, and then issuing a would not be right to divide every house, for that would be to spoil them; but some recompense is to be made, either by a sum of money or rent for owelty of partition, to those that have the houses of least value. The commissioners are not limited as to time in executing the commission, the proceedings under which are open and not secret, and may take place in or within twenty miles of London, all parties having a right to be present, as the commissioners act in a judicial capacity, and proceed without a jury. As to the costs of a partition, it is not usual to give any costs until the commission; but the costs of issuing and executing it, and confirming the return of the commissioners, are borne by the parties in proportion to the value of their respective interests, no costs of the subsequent proceedings being given. [In addition to the proceedings at common law and in chancery, in some of the States, the Orphans' Courts have jurisdiction in partition.] PARTITION, Deed of, a primary or original conveyance. When an estate is held in community by joint-tenants, tenants-in-common, coparceners, or joint heirs in gavelkind, and they are desirous of dividing it into distinct portions to be exclusively enjoyed by each, and they are not under legal disability, they can accomplish such desire by this deed. Sometimes, instead of agreeing as to their several allotments, a reference is made to a chosen person to divide the estate into the required portions, and a good plan of effecting this is to convey the whole estate to the proposed referee upon trust to convey the several allotments to the respective parties, according to his award. A partition of any tenements or hereditaments, not being copyhold, is void at law, unless made by deed (8 & 9 Vict. c. 106, s. 3), and it is no longer to imply any condition in law (Ib. s. 4), so that a declaration negativing implied mutual warranty is now unnecessary. There are two methods of carrying out a partition; one is by separate conveyances of the several allotments, when every party has the custody of his own title-deed; the other is by including the several allotments in one conveyance executed in several parts, one for each party. And this is the better method of the two, since it obviates the necessity of covenants to produce the respective conveyances. A partition of copyholds should be by surrender and admittance, and thus the lord's consent is had. It is frequently expedient, from the difficulties and intricacy of settlements, to effect a partition of property by a private act of Parliament, which operates as a conveyance, and binds persons under disability. The 8 & 9 Vict. c. 118, s. 90, enacts that the appointed valuer upon the written request of any person interested in land to be inclosed in undivided shares, or as jointtenants, coparceners, or tenants-in-common, is to make partition of, and allot the same to such persons in severalty who are to hold the allotments, subject to the same uses as if the partition had not been made. Such valuer is also to apportion the costs and expenses (s. 91). In Kent, where the land is of gavelkind tenure, they call these partitions shifting, from the Saxon, shiftan, to divide; herciscere, Lat. PARTITION, Writ of, abolished by 3 & 4 Wm. IV. c. 27, s. 36. PARTNER, partaker, sharer; one who has part in anything; associate. PARTNERSHIP, in its comprehensive sense, an agreement, voluntarily entered into by two or more persons, to unite their capital, labor, and skill, all, or either of them, in the advancement and protection of fair and open trade, or of any other lawful purpose, dividing proportionably among themselves the profit or loss arising there from. Every person can contract a partnership. Married women, however, are legally incapable of this contract, and although they are frequently entitled to shares in banking houses and other mercantile concerns, under positive covenants, their husbands become partners in their stead. And an infant-partner will be entitled to all the benefits, although not liable for the losses, if he avail himself of his minority; but if, on attaining majority, he do not disaffirm the partnership, he is responsible on contracts subsequently made by the firm. Partnerships are either public or private. Public partnerships are usually denominated companies or societies. They consist of a large number, definite or indefinite, of joint undertakers, who have joined themselves to carry on some important matter. Some of them are incorporated by letters-patent, or by act of Parliament, while others are unincorporated, as most of the fire and life insurance companies, and are, in fact, ordinary partnerships, the laws respecting which are the same. They usually, however, divide their capital into shares, each partner holding one or more of them up to a certain restricted number, transferable under certain regulations; the business is intrusted to officers, generally, under the superintendence of directors, elected from the general body, for whose transactions the whole company is responsible. The Queen can charter a society, or public company, for the advantage of trade, but not for a total restraint thereof. A royal charter is necessary to enable a company to hold lands, to have a common seal, and to enjoy the other privileges of a corporation. Trading companies sometimes obtain acts of Parliament, which confer exclusive privileges, not grantable, according to the principles of the common law, by the Queen's charter. A charter is sometimes procured to limit the risk of the partners, for when societies are incorporated, the members are liable to the extent of their shares only, but when unincorporated, their liability is unlimited. The public incorporated trading companies are not partnerships, within the legal principles governing those privately and voluntarily formed by individuals. În such public companies, whose trade is carried on under the corporate name, the members, as such, are not, as a general rule, subject to the bankrupt laws; nor are they liable in their individual capacities; nor the one for the debts or engagements of the others; in short, they are only liable upon the trade, and contracts carried on and made in the corporate character, to the extent of their respective shares or interests in the joint stock. Private partnerships are contracted by the mere consent of the parties, no charter or license being necessary. Consent may be expressly testified by articles of copartnership, or positive agreement; or may be implied from the acts and conduct of the parties, which is as effective as one that is express. And persons having a mutual interest in the profits of any business carried on by them, or appearing ostensibly as joint traders, are to be recognized and treated as partners by the world, whatever may be the nature of the agreement under which they act or whatever motive or inducement may prompt them to such an exhibition. It is so essentially necessary that the parties exercise their choice freely and voluntarily, that the joint donees, or joint legatees, of one and the same thing, or those chancing through other causes, to hold something undivided between them, to be possessed in common, without any mutual agreement, cannot be treated as partners, for they hold not by force of their own free election; nor can the executors and representatives of deceased partners, in their representative characters, be deemed partners: a community of interest, however, exists between them and the surviving partners, until the affairs of the concern are wound up. And one partner cannot introduce a stranger into the concern as a partner, without the consent of the rest, although he has a right to charge his own undivided interest to any extent he pleases in favor of such stranger. A partnership may be limited to a particular transaction or branch of business, without comprehending all the adventures in which any partner may have embarked. And where this limitation is distinctly defined, and in the absence of any power, expressed or implied, enabling a part of the firm to bind the whole to the responsibility of any new project, it is not competent for any short of the whole partnership, to embark the firm in any undertaking not |
