ment can be pleaded only where there has been a performance at the time and place fixed by the contract; if payment is made after the day, accord and satisfaction must be pleaded.1 2. General Averrment Sufficient. The general rule is that a plea of payment is good which alleges payment generally, without stating the amount paid, the date of payment or the person to whom made.2 3. General Issue. When the petition states the facts constituting the plaintiff's claim, a general denial does not raise the issue negative payment, the negative averment is to be taken as true until the defendant disproves it. Wolffe v. Nall, 62 Ala. 24. Where plaintiff in an action on a contract under seal, alleged that defendant had not paid the sum therein agreed upon, and defendant pleaded non est factum, and payment, it was held that issue as to payment could be joined on these pleadings alone, although the affirmative was asserted by the defendant. McCart v. Regester, 68 Md. 429. Defendant, in order to avail himself of a presumption of payment, must aver a payment. Stanley v. McKinzer, 7 Lea (Tenn.) 454. As to sufficiency of allegation of `non-payment, see Palmer v. Uncas Min. Co., 70 Cal. 614; Scroufe v. Clay, 71 Cal. 123. As to sufficient plea of presumption, of payment from lapse of time, see Pemberton v. Simmons, 100 N. Car. 316. A plea of payment should conclude to the country; and, where payment is pleaded, plaintiff may, without the formal addition of the similiter, proceed to trial as though the issue had been formally joined. Kinsley v. Monongalia Co., 31 W. Va. 464. 1. Hume v. Peploe, 8 East 167; Poole v. Tumbridge, 2 Mees. & W. 223; Kington v. Kington, 11 Mees & 233. W. A plea that defendant paid, or was ready and offered to pay, when requested, is a good plea. Chew v. Wooley, 7 Johns. (N. Y.) 401. 2. Cranor v. Winters, 75 Ind. 301; Epperson v. Hostetter, 95 Ind. 583; Johnson v. Breedlove, 104 Ind. 521; Holmes v. Deplaigne, 23 La. Ann. 238. But see O'Neal v. Phillips, 83 Ga. 556, where it was held, in an action on a note, that a plea of payment which failed to state the time of payment was demurrable; and Baer v. Christian, 83 Ga. 322, holding that the objection was not available under a general demurrer, which did not point out the omission. Payment, where pleaded, means payment in anything that was receivable in payment. Bush v. Sproat, 43 Ark. 416. An averment in an answer that defendant, before the commencement of the action, paid the sum then demanded to plaintiff's agent, is not a good plea of payment, as the whole sum sued for may not have been demanded at that time. Toledo Agricultural Works v. Work, 70 Ind. 253. Under a plea of payment generally it cannot be shown that goods were delivered and accepted under an agreement that the price of the goods should be taken as payment of the debt. Ulsch v. Muller, 143 Mass. 379 (citing Grinnell v. Spink, 128 Mass. 251). See Wheaton v. Nelson, 11 Gray (Mass.) 15. One cannot, under a plea of payment, avail himself of a counter-claim. Wagener v. Mars, 20 S. Car. 533. Under a general allegation of payment, a particular agreement may be shown that certain accounts should be received as payment. Sullivan v. Sullivan, 20 S. Car. 509. Where payment by giving a note and due bill is pleaded, there should be an averment that the same were accepted by the plaintiff in satisfaction. Blunt v. Williams, 27 Ark. 374. But the notes need not be described. Wardlaw v. McConnell, 46 Ga. 273. Plea of part payment is a good plea pro tanto. 2 Chitty Plead. *20, *445, *446; Solary v. Stultz, 22 Fla. 263. But not a good plea in bar to the entire cause of action. Indianapolis etc. R. Co. v. Hyde, 122 Ind. 188. And under a plea of payment, part payment may be shown. Keyes v. Fuller, 9 Ill. App. 528. of payment.1 PAYMENT INTO COURT.-See TENDER. PEACE. JUSTICE OF THE PEACE, vol. 12, p. 392; BREACH OF THE PEACE, vol. 2, p. 513. 1. The tranquillity enjoyed by a political society, internally by the good order which reigns among its members, externally by the good understanding it has with other nations.2 2. The quiet orderly behavior of individuals towards one another and towards the government, which is said to be broken by acts of a certain kind.3 PECULATION.—The unlawful appropriation by a custodian of public funds, of the moneys, securities, or goods intrusted to his care; embezzlement of the public funds.4 PECUNIARY.-(See also MONEY). See note 5. 1. Steves v. Thompson, 5 Kan. 305; But this rule does not apply when the fact of non-payment is alleged in the complaint as a necessary and material fact to constitute a cause of action. (Cases cited.) Knapp v. Roche, 94 N. Y. 329. 2. Bouvier's L. Dict. "Ten days after peace is made" means ten days after peace, irrespective of the ratification of the treaty of peace. Chapman v. Wacaser, 64 N. Car. 532. 3. Corvallis v. Carlile, 10 Oregon 139; 45 Am. Rep. 136. Citing Abbott's & Burrill's Law Dicts. A charter authority to make ordinances "to secure the health, peace and improvement" of a city does not warrant an ordinance enjoining the closing of stores on Sunday, that act being forbidden by the general law. Corvallis v. Carlile, 10 Oregon 139; 45 Am. Rep. 134. Peace, Articles of the.-Where a person says that his life is endangered through the hostility of some one, he may exhibit articles of the peace (being a formal statement of the danger) to the court or a magistrate, who will thereupon require the party informed against to give security to keep the peace. Bouvier's L. Dict. See also BREACH vol. 2, p. 253. Peace, Time of.-When the courts of justice be open, and the judges and ministers of the same may by law protect men from wrong and violence, and distribute justice to all, it is said to be time of peace. Skeen v. Monkeimer, 21 Ind. 3. 4. And. L. Dict.; Abb. L. Dict. It was one of the purposes of the New York act, 1875, ch. 19, as the word peculation in the title indicates, and perhaps its primary purpose, to afford additional security against the betrayal of official trusts, by imposing severe punishment for embezzlement or other frauds when committed by public officers in mis-applying public property, than was provided by existing laws. Bork v. People, 91 N. Y. 16. 5. Where a statute provides that a divorce may be had from a husband who, without cause, grossly or wantonly and cruelly refuses or neglects to provide suitable maintenance for his wife, he being of "sufficient pecuniary ability" to make such provision, it was held, that the reference is to the possession of means in property to provide the necessary maintenance, not to capacity for acquiring such means by labor. Farnsworth v. Farnsworth, 58 Vt. 555; Hammond v. Hammond, 15 R. I. 40. Where damages were sought by a parent for the negligent killing of a child, it was held that the trial court did not err in charging that in measuring the damages by a "pecuniary recompense," the word "pecuniary" is not to be construed in a strict sense. The words "pecuniary recompense," in characterizing the nature of the compensation are not to be construed to Îimit the recovery to the present loss of money, but prospective advantages of a pecuniary nature are embraced in the phrase. Mayor etc. of Vicksburg v. McLain (Miss.) 6 So. Rep. 774. Pecuniary Consideration.-An English statute (17 Geo. III, ch. 26) requires the grant of an annuity to be registered, but § 8 of the same chapter exempts from such registration "any voluntary annuity granted without regard to pecuniary consideration." A "pecuniary consideration," within the meaning of this statute, has been held not to comprise the case of grantee of an annuity giving up his business to the grantor. Crespigny v. Wittenoon, 4 T. R. 790; Hutton v. Lewis, 5 T. R. 639. Nor is the assignment of a leasehold interest a "pecuniary consideration." James v. James, 2 B. & B. 702. Nor a transfer of stock. Cumberland v. Kelly, 3 B. & A. 602. But bank notes, Wright v. Reed, 3 T. R. 554; Cowsins v. Thompson, 6 T. R. 335; Morris v. Wall, 1 B. & P. 208. Checks. Pool v. Cabanes, 8 T. R. 328. And bills of exchange, or promissory notes, were held to be "pecuniary considerations" within the section. And under a similar statute (53 Geo. III, ch. 141) it was held that the surrender of a life interest in a sum of money, and of a contingent interest in the corpus was not a "pecuniary consideration." Evatt v. Hunt, 2 El. & B. 374; Blake v. Attersoll, 2 B. & C. 875. v. A verbal promise to pay a debt in full is a "pecuniary consideration" within the meaning of Massachusetts Stat. 1848, ch. 304, § 9, which declares any certificate of discharge in insolvency to be void, if the assent thereto of any creditor is procured by any pecucuniary consideration. Phelps Thomas, 6 Gray (Mass.) 327. See also Estudillo v. Meyerstein, 72 Cal. 317. Pecuniary Interest.. Wagers upon the result of an election give to one party a pecuniary interest in the election of a person to office, and to another the same interest in such person's defeat, consequently, such wagers are against public policy, and therefore invalid. Stoddard v. Martin, 1 R. 1; 19 Am. Dec. 643. See also GAMBLING CONTRACTS, vol. 8, p. 992. Pecuniary Legacies. "If you find simply the word 'legacy' used, and a direction to apportion property amongst the legatees, there unless there be something apparent on the face of the will which shows that the testator has not used the word in its ordinary legal signification-it will include annuitants. The expression, pecuniary legatees', in itself, I do not think, would go further than this-it would exclude specific legatees, that is, 'legatees of mere chattels, but it would have no effect in excluding prima facie annuitants from taking the same benefit as they would have taken if the word had been 'legatees' instead of 'pecuniary legatees," per WOOD, V. C., GASKIN v. Rogers, L. R., 2 Eq. 291; in which case, however, annuitants were cluded, by a context, from participating in a residue given to persons "taking pecuniary legacies." See also ANNUITIES, vol. 1, p. 594; LEGACIES, vol. 13, p. 15, note. ex Pecuniary Loss.-A pecuniary loss is of money or of something by which money or a thing of money value, may be acquired. Green v. Hudson River R. Co., 32 Barb. (N. Y.) 33; Tilley v. Hudson River R. Co., 29 N. Y. 274. "Pecuniary obligation," as that term is applied to a forged instrument in a statutory definition of forgery, means "every instrument having money for its object, and every obligation for the breach of which a civil action for damages may be lawfully brought." The alleged forged instrument in this case was a telegram, dispatched in the name of one McK., at San Antonio, to one E., at Austin, announcing the death of one L., and asking a remittance of money "for her remains." Held, that the instrument comes within the statute and is the subject of forgery. Dooley v. State, 21 Tex. App. 549. See also OBLIGATION. Pecuniary Provision.-(Such as under Maine Rev. Stat., ch. 103, § 8, will bar dower.) Does not apply to a provision in an agreement for alimony specifically dividing personal property of the parties. Davis v. Davis, 61 Me. 395. Pecuniary Profit.-A corporation for educational purposes, as an academy, is not one for "pecuniary profit," merely because fees are charged for tuition. A corporation for pecuniary profit is one organized "for the pecuniary profit of its stockholders or members." Female Academy v. Sullivan, 116 Ill. 376; 56 Am. Rep. 782. PEDIGREE. (See also AGE, vol. I, p. 327; DEATH, vol. 5, p. 140; FAMILY, vol. 7, p. 803; LEGITIMACY, vol. 13, p. 224; MARRIAGE, vol. 14, p. 519.) I. Definition, 257. II. Proof, 258. 1. Qualifications, 259. (a) Relationship, 259. (b) Declarant Must be Dead, 262. 2. Forms of Hearsay, 264. etc., 265. (d) Inscriptions, 267. L DEFINITION.—Pedigree is the lineage, descent or succession of families. The principal legal question which arises upon the consideration of this term is the admissibility of hearsay 'or secondary evidence in proof of the facts which are embraced in the general term pedigree. And, in this relation, the term embraces not only descent and relationship, but also the facts of birth, marriage and death, and the times when these events happened.2 1. Anderson's L. Dict. Bouvier's definition of the term is as follows: A succession of degrees from the origin: it is the state of the family as far as regards the relationship of the different members, their births, marriages, and deaths. This term is applied to persons or families who trace their origin or descent. Bouv. Law Dict. (3rd ed.). 2. 1 Greenl. on Ev. (14th ed.), § 104; I Whart. on Ev. (3rd ed.), § 208; Swink v. French, 11 Lea (Tenn.) 80; American L. Ins. Co. v. Rosenagle, 77 Pa. St. 506; Kelly v. McGuire, 15 Ark. 604. What Facts Are Included in the Term Pedigree. Mr. Abbott enumerates the facts which constitute pedigree, within the rule admitting hearsay evidence in proof of pedigree, as follows: Birth-North Brookfield v. Warren, 16 Gray (Mass.) 174; American L. Ins. Co. v. Rosenagle, 77 Pa. St. 507, 516. Living or Survival.—Johnson v. Pembroke, 11 East 504. Marriage.-Caujolle v. Ferrie, 23 N. Y. 90. Issue or Want of Issue.-People v. Fulton's F. Ins. Co., 25 Wend. (N. Y.) 208. Death.-Nasons v. Fuller, 45 Vt. 29. The times either definite (Roe v. Randall, 7 East 290), are relative (Bridger v. Hewitt, 2 Fost. & F. 35) of these facts. Relative Age or Seniority.-Johnson v. Pembroke, 11 East 504. 18 C. of L.-17 Name.-Monkton v. Attorney-General, 2 Russ. & M. 158. Relationship Generally. - Doe v. Randall, 2 Mo. & P. 20, 26; Vowles v Young, 13 Ves. 147. The Degree of Relationship.-Webb v. Richardson, 42 Vt. 465. And see Chapman v. Chapman, 2 Conn. 350. The Place of Residence When Proved for Purpose of Identification. -Cuddy v. Brown, 78 Ill. 415; Shields v. Boucher, 1 De G. & Sm. 40; Doe v. Randal, 2 Mo. & P. 20. At this limit the rule stops. It does not admit hearsay evidence as to a specified fact, however closely connected with these facts of family history, if one which, in its nature is sus-, ceptible of being proved by witnesses speaking from their own knowledge, even although all such witnesses are dead. Abbott's Trial Ev., p. 91. "Still, the hearsay evidence must, it seems, be confined to such facts as are immediately connected with the question of pedigree; and declarations as to independent facts, from which a date of genealogical event may be inferred, will probably be rejected. It is not easy to express this limitation of the rule in intelligible language, but the following cases will explain its purport: In a question of legitimacy, turning upon the time of birth, a declaration by the deceased sister of the alleged bastard's mother, stating that she had suckled the child, was tendered in evidence; and being coupled with the 257 II. PROOF.-Questions of pedigree form an exception to the general rule excluding hearsay evidence, and all the authorities agree that, with certain qualifications, which will be considered hereafter, pedigree and the facts that constitute it are open to proof by hearsay.1 This exception is owing to the obvious difficulty, and in many cases impossibility, of obtaining better evidence in such cases; as it often happens that facts must be proved which occurred many years before the trial, and which were known to but few people, so that to enforce the ordinary rules of evidence would in many instances lead to a manifest failure of justice.2 And, moreover, as will be seen, the hearsay evidence is confined to the declarations of relations as to facts of family history; and, therefore, "the law resorts to hearsay evidence in cases of pedigree upon the ground of the interest of the proof of the time when her own child was born, it tended to fix the alleged bastard's birth at a period subsequent to its parent's marriage. Mr. BARON GURNEY admitted this evidence; but LORD COTTONHAM expressed an opinion that he was wrong in so doing. Isaac v. Gompertz, cited in Hubb. Ev. of Suc. 650. In another case (Vin. Ab. Ev. T. b. 91, probably referred to, as Spadwell v. by LAWRENCE, J., in the Berkeley Peer., 4 Camp. 410), where the question turned on the relative seniority of three sons, born at a birth, declarations by his father that he had christened them Stephanus, Fortunatus, and Achaicus, according to the order of the names in St. Paul's First Epistle to the Corinthians (ch. 16, v. 17), for the purpose of distinguishing their seniority, as also declarations by an aunt, who was present at the confinement, and who, with a similar object, had tied strings around the arms of the second and third child, was admitted. The distinction between these two cases is clear. In the former, the fact of suckling the child had no direct bearing on its age or legitimacy, but was only a species of circumstantial evidence from which these facts might be inferred; whereas in the latter, the christening and the tying strings around the arms of the children were intended from the first to afford the means of ascertaining their relative seniority." Taylor on Ev. Text Book Series, § 582. 1. Greenl. on Ev. (14th ed.), § 103; 1 Whart. on Ev. (3d ed.), § 201; 1 Taylor (Text Book Series), § 635. And see hereon Crease v. Barrett, 1 C., M. & R. 928; Vowles v. Young, 13 Ves. Jr. 140; Crouch v. Hooper, 16 Beav. 182; Hubbard v. Lees, L. R., 1 Ex. 255; Cuddy v. Brown, 78 Ill. 415; Crispin v. Doglioni, 32 L. J., P. & M. 109; Monkton v. Attorney General, 2 R. & M. 147; Davis v. Wood, I Wheat. (U. S.) 6; Banert v. Day, 3 Wash. (U.S.) 243; Dupont v. Davis, 30 Wis. 178; Chirac v. Reinecker, 2 Pet. (U. S.) 621; Ellicott v. Pearl, 10 Pet. (U. S.) 412; Jewell v. Jewell, 17 Pet. (U. S.) 213; 1 How. (U. S.) 219; Blackburn v. Crawford, 3 Wall. (U. S.) 175; Secrist v. Green, 3 Wall. (U. S.) 744; Denoyer v. Ryan, 24 Fed. Rep. 77; Gaines v. New Orleans, 6 Wall. (U. S.) 642; Dussert v. Roe, 1 Wall. Jr. (C. C.) 39; Mooers v. Bunker, 29 N. H.420; Webb v. Richardson, 42 Vt. 465; Mason v. Fuller, 45 Vt. 29; North Brookfield v. Warren, 16 Gray (Mass.) 174; Chapman v. Chapman, 2 Conn. 347; Jackson v. Cooley, 8 Johns. (N. Y.) 128; Jackson v. Browner, 18 Johns. (N. Y.) 37; Douglass v. Sanderson, 2 Dall. (U. S.) 116; Winder v. Little, 1 Yeates (Pa.) 152; Watson v. Brewster, 1 Pa. St. 381; American L. Ins. Co. v. Rosenagle, 77 Pa. St. 507; Shuman v. Shuman, 27 Pa. St. 90; State v. Grennwell, Gill & J. (Md.) 407; Jones v. Jones, 36 Md. 447; Stumpff v. Osterhage, III Ill. 82; Van Vickle v. Gibson, 40 Md. Ch. 170; Morgan v. Purnell, 4 Hawks (N. Car.) 95; Cowan v. Hite, 2 A. K. Marsh. (Ky.) 238; Saunders v. Fuller, 4 Humph. (Tenn.) 516; Eaton v. Tallmadge, 24 Wis. 217; Anderson v. Parker, 6 Cal. 197; Lovat Peerage Case, 10 App. Cas. 763. 2. I Taylor on Ev. (Text Book Series), § 635; Higman v. Ridgeway, 10 East 120; Jackson v. Browner, 18 |