« SebelumnyaLanjutkan »
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.
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 aver- Christian, 83 Ga. 322, holding that the ment is to be taken as true until the objection was not available under a defendant disproves it. Wolffe v. general demurrer, which did not point Nall, 62 Ala. 24.
out the omission. Where plaintiff in an action on a Payment, where pleaded, means contract under seal, alleged that de- payment in anything that was receivafendant had not paid the sum therein ble in payment. Bush v. Sproat, 43 agreed upon, and defendant pleaded Ark. 416. non est factum, and payment, it was An averment in an answer that deheld that issue as to payment could fendant, before the commencement of be joined on these pleadings alone, al- the action, paid the sum then dethough the affirmative was asserted manded to plaintiff's agent, is not a by the defendant. McCart v. Regester, good plea of payment, as the whole 68 Md. 429.
sum sued for may not have been deDefendant, in order to avail himself manded at that time. Toledo Agriof a presumption of payment, must cultural Works v. Work, 70 Ind. aver a payment. Stanley v. McKinzer 253. 7 Lea (Tenn.) 454.
Under a plea of payment generally As to sufficiency of allegation of it cannot be shown that goods were "non-payment, see Palmer v. Uncas delivered and accepted under an agreeMin. Co., 70 Cal. 614; Scroufe v. Clay, ment that the price of the goods 71 Cal, 123.
should be taken as payment of the As to sufficient plea of presumption, debt. Ulsch v. Muller, 143 Mass. 379 of payment from lapse of time, see (citing Grinnell v. Spink, 128 Mass. Pemberton v. Simmons, 100 N. Car. 251). See Wheaton v. Nelson, 11 Gray 316.
(Mass.) 15. A plea of payment should conclude One cannot, under a plea of pay. to the country; and, where payment ment, avail himself of a counter-claim. is pleaded, plaintiff may, without the Wagener v. Mars, 20 S. Car. 533. formal addition of the similiter, pro U nder a general allegation of payceed to trial as though the issue had ment, a particular agreement may be been formally joined. Kinsley v. Mo- shown that certain accounts should be nongalia Co., 31 W. Va. 464.
received as payment. Sullivan v. Sul. 1. Hume v. Peploe, 8 East 167; livan, 20 S. Car. 509. Poole v. Tumbridge, 2 Mees. & W. Where payment by giving a note 223; Kington v. Kington, 11 Mees & and due bill is pleaded, there should be
an averment that the same were acA plea that defendant paid, or was cepted by the plaintiff in satisfaction. ready and offered to pay, when re Blunt v. Williams, 27 Ark. 374. quested, is a good plea. Chew v. But the notes need not be described. Wooley, 7 Johns. (N. Y.) 401.
Wardlaw v. McConnell, 46 Ga. 273. 2. Cranor v. Winters, 75 Ind. 301; Plea of part payment is a good plea Epperson v. Hostetter, 95 Ind. 583; pro tanto. 2 Chitty Plead. *20, *445, Johnson v. Breedlove, 104 Ind. 521; *446; Solary v. Stultz, 22 Fla. 263. Holmes v. Deplaigne, 23 La. Ann. But not a good plea in bar to the en238. But see O'Neal v. Phillips, 83 tire cause of action. Indianapolis etc. Ga. 556, where it was held, in an action R. Co. v. Hyde, 122 Ind. 188. on a note, that a plea of payment And under a plea of payment, part which failed to state the time of pay- payment may be shown. Keyes v. ment was demurrable; and Baer v. Fuller, 9 Ill. App. 528.
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; Peace, Time of.- When the courts of St. Louis etc. R. Co. v. Grove, 39 justice be open, and the judges and Kan. 731; Farnham v. Murch, 36 ministers of the same may by law proMinn. 328; Potter v. Gates (Supreme tect men from wrong and violence, Ct.), 9 V. Y. Supp. 87.
and distribute justice to all, it is said But this rule does not apply when to be time of peace. Skeen v. Monkethe fact of non-payment is alleged in imer, 21 Ind. 3. the complaint as a necessary and ma 4. And. L. Pict.; Abb. L. Dict. terial fact to constitute a cause of ac- It was one of the purposes of the tion. (Cases cited.) Knapp v. Roche, New York act, 1875, ch. 19, as the 94 N. Y. 329.
word peculation in the title indicates, 2. Bouvier's L. Dict.
and perhaps its primary purpose, to "Ten days after peace is made" means afford additional security against the ten days after peace, irrespective of betrayal of official trusts, by imposing the ratification of the treaty of peace. severe punishment for embezzlement Chapman v. Wacaser, 64 N. Car. 532, or other frauds when committed by
3. Corvallis v. Carlile, 10 Oregon public officers in mis-applying public 139; 45 Am. Rep. 136. Citing Ab- property, than was provided by existbott's & Burrill's Law Dicts.
ing laws. Bork v. People, 91 N. Y. A charter authority to make ordi- 16. nances "to secure the health, peace and 8. Where a statute provides that a improvement" of a city does not war divorce may be had from a husband rant an ordinance enjoining the closing who, without cause, grossly or wanof stores on Sunday, that act being tonly and cruelly refuses or neglects to forbidden by the general law. Cor- provide suitable maintenance for his vallis 2. Carlile, 10 Oregon 139; 45 Am. wife, he being of "sufficient pecuniary Rep. 134.
ability" to make such provision, it Peace, Articles of the.- Where a per. was held, that the reference is to the son says that his life is endangered possession of means in property to through the hostility of some one, he provide the necessary maintenance, may exhibit articles of the peace not to capacity for acquiring such (being a formal statement of the dan- means by labor. Farnsworth v. ger) to the court or a magistrate, who Farnsworth, 58 Vt. 555; Hammond v. will thereupon require the party in Hammond, 15 R. I. 40. formed against to give security to keep Where damages were sought by a the peace.
parent for the negligent killing of a Bouvier's L. Dict. See also BREACH child, it was held that the trial court OF THE PEACE, vol. 2, p. 515.
did not err in charging that in measurBill of Peace.-See BILL OF PEACE, ing the damages by a “pecuniary recvol. 2, p. 253.
ompense,” the word “pecuniary' is not
to be construed in a strict sense. The simply the word 'legacy'used, and a diwords "pecuniary recompense,” in rection to apportion property amongst characterizing the nature of the com- the legatees, there unless there be pensation are not to be construed to something apparent on the face of the limit the recovery to the present loss will which shows that the testator has of money, but prospective advantages not used the word in its ordinary legal of a pecuniary nature are embraced in signification-it will include annuithe phrase. Mayor etc. of Vicksburg tants. The expression, pecuniary leg. v. McLain (Miss.) 6 So. Rep. 774. atees', in itself, I do not think, would
lish statute (17 Geo. III, ch.26) requires specific legatees, that is, 'legatees of the grant of an annuity to be regis- mere chattels, but it would have no tered, but 98 of the same chapter ex effect in excluding prima facie annuiempts from such registration “any vol. tants from taking the same benefit as untary annuity granted without regard they would have taken if the word had to pecuniary consideration." A "pe- been 'legatees' instead of 'pecuniary cuniary consideration,” within the legatees,” per Wood, V. C., GASKIN meaning of this statute, has been held v. Rogers, L. R., 2 Eq. 291; in which not to comprise the case of grantee case, however, annuitants were exof an annuity giving up his business to cluded, by a context, from participat. the grantor. Crespigny v. Wittenoon, ing in a residue given to persons "tak4 T. R. 790; Hutton v. Lewis, 5 T. ing pecuniary legacies." See also Ř. 639. Nor is the assignment of a ANNUITIES, vol. 1, p. 594; LeGACIES, leasehold interest a "pecuniary consid- vol. 13, p. 15, note. eration.” James v. James, 2 B. & B. Pecuniary LOBB.—A pecuniary loss is 702. Nor a transfer of stock. Cum- of money or of something by which berland v. Kelly, 3 B. & A. 602. But money or a thing of money value, may bank notes, Wright v. Reed, 3 T. R. be acquired. Green v. Hudson River 554; Cowsins v. Thompson, 6 T. R. R. Co., 32 Barb. (N. Y.) 33; Tilley i'. 335; Morris v. Wall, 1 B. & P. 208. Hudson River R. Co., 29 N. Y. 274. Checks. Pool v. Cabanes, 8 T. R. 328. "Pecuniary obligation," as that term And bills of exchange, or promissory is applied to a forged instrument in a notes, were held to be "pecuniary con- statutory definition of forgery, means siderations” within the section. And "every instrument having money for under a similar statute (53 Geo. III, ch. its object, and every obligation for the 141) it was held that the surrender of breach of which a civil action for dama life interest in a sum of money, and ages may be lawfully brought.” The of a contingent interest in the corpus alleged forged instrument in this case was not a "pecuniary consideration.” was a telegram, dispatched in the Evatt v. Hunt, 2 El. & B. 374; Blake name of one McK., at San Antonio, to v. Attersoll, 2 B. & C. 875.
one E., at Austin, announcing the A verbal promise to pay a debt in death of one L., and asking a remitfull is a "pecuniary consideration” tance of money "for her remains." within the meaning of Massachusetts Held, that the instrument comes Ştat. 1848, ch. 304, § 9, which declares within the statute and is the subject of any certificate of discharge in insol- forgery. Dooley v. State, 21 Tex. App. vency to be void, if the assent thereto of 549. See also OBLIGATION. any creditor is procured by any pecu- Pecuniary Provision.—(Such as under cuniary consideration. Phelps v. Maine Rev. Stat., ch. 103, § 8, will bar Thomas, 6 Gray (Mass.) 327. See also dower.) Does not apply to a proviEstudillo v. Meyerstein, 72 Cal. 317. sion in an agreement for alimony spe
Pecuniary Interest. — Wagers upon cifically dividing personal property of the result of an election give to one the parties. Davis v. Davis, 61 Me. party a pecuniary interest in the elec- 395. tion of a person to office, and to an- Pecuniary Profit.-A corporation for other the same interest in such per- educational purposes, as an academy, son's defeat, consequently, such wagers is not one for "pecuniary profit," are against public policy, and there- merely because fees are charged for fore invalid. Stoddard v. Martin, i R. tuition. A corporation for pecuniary 1; 19 Am. Dec. 643.
profit is one organized "for the pecuSee also GAMBLING CONTRACTS, niary profit of its stockholders or vol. 8, p. 992.
members." Female Academy a'. SulPecuniary Legacies. "If you find livan, 116 III. 376; 56 Am. Rep. 782.
PEDIGREE.—(See also AGE, vol. 1, p. 327; DEATH, vol. 5, p. 140; FAMILY, vol. 7, p. 803 ; LEGITIMACY, vol. 13, p. 224; MARRIAGE, vol. 14, p. 519.)
1. Definition, 257.
2. Forms of Hearsay, 264. II, Proof, 258.
(a) Oral Declarations, 264. 1. Qualifications, 259.
(6) Family Conduct, 265. (a) Relationship, 259.
(c) Family Records-Entries in (6) Declarant Must be Dead, 262.
Bibles- Correspondence, (c) Lis Mota-Interest, 263.
etc., 265. (d) Pedigree in Issue, 264.
(d) Inscriptions, 267. I 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.
Name.- Monkton v. Attorney-GenBouvier's definition of the term is as eral, 2 Russ. & M. 158. follows: A succession of degrees from Relationship Generally. — Doe v. the origin: it is the state of the family Randall, 2 Mo. & P. 20, 26; Vowles o as far as regards the relationship of the Young, 13 Ves. 147. different members, their births, mar The Degree of Relationship. Webb riages, and deaths. This term is ap- v. Richardson, 42 Vt. 465. And see plied to persons or families who trace Chapman v. Chapman, 2 Conn. 350. their origin or descent. Bouv. Law The Place of Residence When Dict. (3rd ed.).
Proved for Purpose of Identification, 2. 1 Greenl. on Ev. (14th ed.), S 104; -Cuddy v. Brown, 78 Ill. 415; Shields, 1 Whart. on Ev. (3rd ed.), $ 208; Swink v. Boucher, 1 De G. & Sm. 40; Doe v. v. French, 11 Lea (Tenn.) 80; Ameri. Randal, 2 Mo. & P. 20. can L. Ins. Co. v. Rosenagle, 77 Pa. St. At this limit the rule stops. It does 506; Kelly v. McGuire, 15 Ark. 604. not admit hearsay evidence as to a
What Facts Are Included in the Term specified fact, however closely conPedigree.- Mr. Abbott enumerates the nected with these facts of family his. facts which constitute pedigree, within tory, if one which, in its nature is sus-, the rule admitting hearsay evidence ceptible of being proved by witnesses in proof of pedigree, as follows:
speaking from their own knowledge, Birth.-North Brookfield v. War- even although all such witnesses are ren, 16 Gray (Mass.) 174; American dead. Abbott's Trial Ev., p. 91. L. Ins. Co. v. Rosenagle, 77 Pa. St. "Still, the hearsay evidence must, it
seems, be confined to such facts as are Living or Survival.-Johnson v. immediately connected with the quesPembroke, 11 East 504.
tion of pedigree; and declarations as to Marriage.--Caujolle v. Ferrie, 23 independent facts, from which a date of N. Y. 90.
genealogical event may be inferred, Issué or Want of Issue.-People will probably be rejected. It is not v. Fulton's F. Ins. Co., 25 Wend. (N. easy to express this' limitation of the
rule in intelligible language, but the Death.-Nasons o. Fuller, 45 Vt. 29. following cases will explain its purport:
The times either definite (Roe v. In a question of legitimacy, turning Randall,7 East 290), are relative upon the time of birth, a declaration by (Bridger v. Hewitt, 2 Fost. & F. 35) of the deceased sister of the alleged bas. these facts.
tard's mother, stating that she had Relative Age or Seniority-John- suckled the child, was tendered in evi. son o. Pembroke, 11 East 504.
dence; and being coupled with the 18 C. of L-17
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. 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. 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 140; Crouch v. Hooper, 16 Beay. 182; was born, it tended to fix the alleged Hubbard v. Lees, L. R., I Ex. 255; bastard's birth at a period subsequent Cuddy v. Brown, 78 111. 415; Crispin v. to its parent's marriage. Mr. BARON Doglioni, 32 L. J., P. & M. 109; MonkGURNEY admitted this evidence; but ton v. Attorney General, 2 R. & M. LORD COTTONHAM expressed an opin- 147; Davis v. Wood, I Wheat. (U. ion that he was wrong in so doing. Isaac S.) 6; Banert v. Day, 3 Wash. (U. S.) v. Gompertz, cited in Hubb. Ev. of 243; Dupont v. Davis, 30 Wis. 178; Suc. 650. In another case (Vin. Ab. Chirac V. Reinecker, 2 Pet. (U. S.) Ev. T. b. 91, probably referred to, as 621; Ellicott v. Pearl, 10 Pet. (U. S.) Spadwell v.
, by LAWRENCE, 412; Jewell v. Jewell, 17 Pet. (U. S.) J., in the Berkeley Peer., 4 Camp. 410), 213; i How. (U. S.) 219: Blackburn o. where the question turned on the rela- Crawford, 3 Wall. (U. S.) 175; Secrist tive seniority of three sons, born at a v. Green, 3 Wall. (U. S.) 744; Denoyer birth, declarations by his father that he v. Ryan, 24 Fed: Rep. 77; Gaines v. had christened them Stephanus, Fortu- New Orleans, 6 Wall. (U. S.) 643; natus, and Achaicus, according to the Dussert v. Roe, 1 Wall. Jr. (C. C.) 39; order of the names in St. Paul's First Mooers v. Bunker, 29 N. H.420; Webb Epistle to the Corinthians (ch. 16, v. v. Richardson, 42 Vt. 465; Mason v. 17), for the purpose of distinguishing Fuller, 45 Vt. 29; North Brookfield o. their seniority, as also declarations by Warren, 16 Gray (Mass.) 174; Chapan aunt, who was present at the con- man v. Chapman, 2 Conn. 347; Jackson finement, and who, with a similar ob- v. Cooley, 8 Johns. (N. Y.) 128; Jackject, had tied strings around the arms son v. Browner, 18 Johns. (N. Y.) 37; of the second and third child, was ad- Douglass v. Sanderson, 2 Dall. (U. Š.) mitted. The distinction between these 116; Winder v. Little, 1 Yeates (Pa.) two cases is clear. In the former, the 152; Watson v. Brewster, i Pa. St. fact of suckling the child had no direct 381; American L. Ins. Co. v. Rosenbearing on its age or legitimacy, but agle, 77 Pa. St. 507; Shuman v. Shuman, was only a species of circumstantial 27 Pa. St. 90; State v. Grennwell, 4 evidence from which these facts might Gill & J. (Md.) 407; Jones v. Jones, 36 be inferred; whereas in the latter, the Md. 447; Stumpff vi Osterhage, in christening and the tying strings Ill. 82; Van Vickle v. Gibson, 40 Md. around the arms of the children were Ch. 170; Morgan v. Purnell, 4 Hawks intended from the first to afford the (N. Car.) 95; Cowan v. Hite, 2 A. K. means of ascertaining their relative se- Marsh. (Ky.) 238; Saunders v. Fuller, niority.” Taylor on Ev. Text Book 4 Humph. (Tenn.) 516; Eaton v. TallSeries, $ 582.
madge, 24 Wis. 217; Anderson v. Par. 1. Greenl. on Ev. (14th ed.), S 103; 1 ker, 6 Cal. 197; Lovat Peerage Case, Whart. on Ev. (3d ed.), $ 201; 1 Tay- 10 App. Cas. 763. lor (Text Book Series), 9 635. And see 2. i Taylor on Ev. (Text Book Se. hereon Crease v. Barrett, 1 C., M. & ries), § 635; Higman v. Ridgeway, 10 R. 928; Vowles v. Young, 13 Ves. Jr. East 120; Jackson v. Browner, 18