PAYMENT OF MONEY INTO COURT

continued.

or a part of the plaintiff's claim, he often, with the view of preventing the plaintiff from further maintaining his action, pleads what is termed a "plea of payment into Court," by which he alleges that he brings a sum of money into Court ready to be paid to the plaintiff if he will accept the same, and that the plaintiff has no claim to a larger amount; and this plea is accompanied by an actual payment of the specified sum into the hands of the proper officer of the Court, where the plaintiff, or usually his attorney, may, upon application, obtain it. Should the plaintiff, after this, proceed with the action, he does so at the peril of being defeated, and having the costs to pay, unless he should, upon the trial, prove that a further sum still remains due to him from the defendant. By the C. L. P. Act, 1852 (15 & 16 Vict. c. 76), s. 70, in extension of a similar provision contained in the 3 & 4 Will. 4, c. 42, s. 21, it is lawful for the defendant in all actions (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution [criminal conversation], or debauching of the plaintiff's daughter or servant), and, by leave of the Court or a judge, upon such terms as to the latter shall seem fit, for one or more of several defendants, to pay into Court a sum of money by way of compensation or amends. Such payment into Court admits the plaintiff's ground of action, and the plaintiff is entitled to have the money in any event; but, semble, the Court may control or direct the application of the money. Carr v. Royal Exchange Insurance Company, 34 L. J. (Q. B.) 31.

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. But the Court must satisfy itself that there is on the face of the articles a reasonable ground of fear. The articles are put in upon oath, and the defendant cannot controvert the allegations contained therein, even by affidavit. Rex v. Doherty, 13 East, 171.

PEACE OF GOD AND THE CHURCH. Anciently meant to signify that rest and cessation which the king's subjects had from trouble and suit of law between the terms. Cowel.

PECULIAR. This was the phrase used to designate a particular parish or church that had jurisdiction within itself for

PECULIAR continued.

granting probates of wills, &c., exempt from the Ordinary or Bishop's Courts. The Court of Peculiars was a Court annexed to the Court of Arches, and had jurisdiction over all those parishes dispersed through the province of Canterbury, in the midst of other dioceses, which were exempt from the ordinary jurisdiction and subject to the metropolitan only, in which Court all ecclesiastical causes arising within these peculiar or exempt jurisdictions were originally cognizable. Les Termes de la Ley.

PECUNIARY CAUSES. These were causes arising either from the withholding ecclesiastical dues, or the doing or neglecting some act relating to the church whereby some damage accrued to the plaintiff; towards obtaining satisfaction for which he was permitted to institute a suit in the Spiritual Court. Such, for instance, were the subtraction and withholding of tithes from the parson or vicar; the non-payment of ecclesiastical dues to the clergy, as pensions, mortuaries, compositions, and the like.

PEERS. Those who are impanelled in an inquest upon any man for the convicting or clearing him of any offence for which he is called in question. The jury was so called from the Latin pares, i.e., equals, because it is the custom of this country to try every man by his equals, that is to say, by his peers (judicio parium suorum). The word "peer" seems also not merely to have signified one of the same rank; but it was also used to signify the vassals or tenants of the same lord, who attended him in his Courts and adjudicated upon matters arising out of their lord's fees, and were thence called peers of fees (Cowel; Les Termes de la Ley). Whence also apparently the king's barons, who sit in the House of Lords, are called his peers, being (or having at any rate been) to some extent and for some purposes the equals of the sovereign.

See also titles BARONY; and LORDS,
HOUSE OF; and next title.

PEERS, QUALITY OF SPIRITUAL
continued.

clusive of England) to admit the
clergy to their supreme councils;
and

(3.) The tenure of lands by barony. Probably, however, the third of these three grounds was the chiefest, as the absence of it is in some instances (e.g., that of the Prior of St. James, at Northampton, in 12 Edw. 2, and that of the Abbot of Leicester in 25 Edw. 3) made a ground of exemption to the prelate from attendance in Parliament; it is certain, however, that the third ground was not a sine quâ non in the Spiritual Peerage, as many spiritual peers were in the House upon the grounds of their learning and of the custom of Europe alone, or upon one of such grounds; and that, or those, are the present titles of the spiritual peers to sit in the House of Lords.

To all intents and purposes the spiritual peers were (with one exception) upon a level with the temporal peers for the time being, but they must necessarily have been (in most if not all cases) life peers only. The one exception to this general equality consisted in the following peculiarity, namely, the spiritual had not (nor have they) the right of being present during the trial or (at any rate) upon the judg ment (whether of condemnation or of acquittal) of a temporal peer, or of being themselves tried (like a temporal peer) by their peers.

This point of inferiority, however, has never been assented to by the spiritual peers themselves; e.g., in 25 Edw. 3, upon the trial of a certain temporal peer, the spiritual peers, upon retiring, remonstrated that they had full right to remain; and again, e.g., in 1357, the Bishop of Ely claimed to be tried by the Lords, but that claim was disallowed, and he went before a jury; and the same was the case with Bishop Fisher in the reign of Henry VIII., which latter case settled the law.

PENAL BILL. An instrument formerly in use by which a party bound himself to pay a certain sum or sums of money, or to do certain acts, or in default thereof to pay a certain specified sum by way of penalty, thence termed a penal sum. These instruments have been superseded by bonds in a penal sum, with conditions.

PENAL STATUTES. Statutes imposing certain penalties on the commission of certain offences; and actions brought for the recovery of such penalties are denominated penal actions. Inasmuch as a penal statute is, to the extent of the penalty, a money-bill, the Commons claim the exclusive right as to all such enactments,

PENAL STATUTES-continued. the Lords and Crown having merely an assenting vote.

See title MONEY-BILLS.

PENALTY OF A BOND. The sum of money which the obligor of a bond undertakes to pay by way of penalty, in the event of his omitting to perform or carry out the terms imposed upon him by the conditions of the bond. The distinction between a penalty and a sum payable as liquidated damages is this, that the penal sum is generally or always double the amount of the debt secured by the bond, whereas liquidated or ascertained damages, as the name indicates, are intended to denote, and usually denote, the exact amount of the debt. The Courts of Law and also of Equity relieve against penalties upon payment of the principal debt, and interest, and costs; nor will this right to relief be excluded by the parties merely designating that as liquidated damages which is in reality a penalty (Kemble v. Farren, 6 Bing. 141), unless where the damages are altogether unascertainable, otherwise than by the amount fixed by the instrument. Atkyns v. Kinnier, 1 Ex. 659.

PENDENTE LITE. Pending the suit, whilst the suit is pending.

See also title LIS PENDENS.

PENSION (pensio). That which in the Inner and the Middle Temple is called a parliament, and in Lincoln's Inn a council, is in Gray's Inn termed a pension; that is, an assembly of the members of the society to consult of their affairs. Certain annual payments of each member of the Inns of Court are also so termed. There is also a writ called a pension writ, which seems to be a sort of peremptory order against those members of the society who are in arrear with their pensions and other dues. Cowel.

See also titles CIVIL LIST; PENSION
LIST.

PERFECTING BAIL-continued.

blished their sufficiency by satisfying the Court that they possess the requisite qualifications, a rule of Court is made for their allowance, and the bail is then said to be perfected, i.e., the process of giving bail is finished or completed.

See also titles BAIL; JUSTIFYING BAIL.

PERFORMANCE.

This, like payment, is the normal and natural mode of discharging an obligation. In Equity practice it has acquired a somewhat extended and peculiar development. Thus, when a person Covenants to do an act, and without making any express reference to the covenant, he does an act which may either wholly or partially be taken as or towards a performance of the covenant, Equity imputes to him the intention, i.e., implies an intention, on his part to perform the covenant. Cases of performance in Equity fall under two divisions, viz. :

(1.) Covenants to purchase and settle lands, and lands are, in fact, purchased, but no settlement thereof is made (Willcocks v. Willcocks, 2 Vern. 558); and

(2.) Covenants to leave personal property, and the covenantee in fact receives property left by reason of the covenantor's intestacy. Blandy v. Widmore, 1 P. Wms. 323.

The rules applicable to both these groups of cases are the same, viz. :—

(1.) When the lands purchased or personal property left by intestacy are of less value than the intention of the covenant, they go in part towards a performance of the covenant (Lechmere v. Čarlisle (Earl), 3 P. Wms. 211); and

(2.) The omission of immaterial requisites to the due performance of the covenant will count for nothing, e.g., the omis sion or neglect to obtain the trustee's consent to the purchase, or even to purchase the lands through the trustees as agents (Sowden v. Sowden, 1 Bro. C. C. 582); but

(3.) There is no performance in these cases if the covenant is broken in the lifetime of the covenantor. Oliver v. Brickland, 3 Atk. 420.

See also title SATISFACTION.

PERJURY is defined by Coke to be a crime committed when a lawful oath is administered in some judicial proceeding to a person who swears wilfully, absolutely, and falsely in a matter material to the issue or point in question. And under various modern statutes offences against veracity of the like sort, although not on oath, are rendered indictable and punishable as perjury, e.g., in the case of the

PERJURY-continued.

declarations substituted for oaths. The Common Law penalty for perjury was fine and imprisonment at the discretion of the Court; the statute law penalty is under 2 Geo. 2, c. 25, s. 2, transportation or imprisonment with hard labour in the house of correction, for any term not exceeding seven years; and now penal servitude is, under 20 & 21 Vict. c. 3, and 27 & 28 Vict. c. 47, substituted for transportation. Two witnesses are required to ensure a conviction for perjury.

PERNANCY. Pernancy signifies taking, receiving, enjoying, &c. Thus the pernancy of the profits of an estate means the receipt or enjoyment of the profits, e.g., "estates in possession are those where the tenant is entitled to the actual pernancy of the profits" (2 Cruise, tit. "Remainder," s. 1); and he who is so in the receipt of the profits is termed the pernor of the profits.

OF

PERPETUATING TESTIMONY WITNESSES. When a party in a suit in equity is desirous of preserving the evidence of witnesses concerning a matter which cannot be immediately investigated in a Court of Law, or when he is likely to be deprived of the evidence of material witnesses by their death or departure from the realm, it is usual to file a bill in equity to perpetuate and preserve the testimony of such witnesses; and the Court then usually empowers certain persons to examine such witnesses, and to take their depositions. The evidence so taken is then available on any future trial, if the witness or witnesses should in the meantime have died, but not otherwise.

PERPETUITY. Various attempts have from time to time been made to keep land in a certain line or family in perpetuity, but the law disliking a perpetuity has frustrated every such attempt. The most noteworthy attempts have been the following:

(1.) Restraints imposed upon tenants in tail to prevent them from suffering a common recovery or a fine, -an attempt which was frustrated in Mildmay's Case (6 Rep. 40); (2.) Successive life estates, with a proviso for the creation of an everfresh succession of them,—an attempt which was frustrated in Marlborough (Duke) v. Godolphin (1 Eden, 404); and

(3.) The creation of executory interests under the Statutes of Uses and of Wills (27 Hen. 8, c. 10, and 32 Hen. 8, c. 5),—an attempt which was frustrated in Cadell v. Palmer

PERPETUITY-continued.

(1 Cl. & F. 372), which case also established the Rule of Perpetuities in its present form, and which is in these words,

Rule of Perpetuities or of Remoteness.— An executory interest cannot be created so as to take effect unless within a life or lives in being, twenty-one years afterwards, and (but only where gestation actually exists (Cadell v. Palmer, supra)) the period of gestation; or (where no life or number of lives is mentioned) within twenty-one years alone and (but only where gestation actually exists) the period of gestation (Palmer v. Holford, 4 Russ. 403). Moreover, all interests subsequent to and depending upon an executory interest which exceeds the limits of the rule are also void, notwithstanding in themselves they may be within the limits of the rule. Palmer v. Holford, supra; Robinson v. Hardcastle, 2 Bro. C. C. 22.

The rule is applicable to personal as well as to real estate.

In the application of the rule possible and not actual events are to be considered; so that if the executory interest which is given might by possibility exceed the limits of the rule, in other words would not necessarily take effect as a vested interest (if at all) within these limits, and whether as to all or as to one even of the beneficiaries, the interest is void. And not only must the interest vest, but the respective vested interests of the respective takers (where they are more than one) must also be ascertainable, within the limits of the rule, otherwise the gift is void (Curtis v. Lukin, 5 Beav. 147); but it is not necessary that the interest having vested should also be in possession (Murray v. Addenbroke, 4 Russ. 407), the possession, if arbitrarily postponed beyond the vesting, being simply accelerated and brought up to the period of vesting.

The following are the chief examples of interests attempted to be created, but void as being against the rule,

(1.) An executory interest to arise after an indefinite failure of issue, unless the prior interest can be construed as an estate tail by implication from the words describing the failure of issue, in which latter case the executory interest over would be good (Doe d. Ellis v. Ellis, 9 East, 383); Grumble v. Jones, Willes, 166, n.), the reason for the validity of the exception being that the gift over may be defeated by the estate tail being barred at any time before the event occurs on which the executory interest is to spring into being.

law.

Mogg v. Mogg, 1 Mer. 654, cannot be considered

(2.) An executory bequest, after a life estate in A. to the children of A. attaining any age which exceeds twenty-one years (Leake v. Robinson, 2 Mer. 363); and in such a case the whole bequest over is void, although some of the children may have attained the prescribed age within twentyone years from the death of A., unless indeed the individual shares of the respective children can be ascertained within the limits of the rule of perpetuities, in which latter case the gift over would be valid as to those children who are within the rule and void only as to the others. Storrs v. Benbow, 2 My. & K. 46.

(3.) A devise to a child (not in esse) of A. who is in esse upon that child attaining some qualification which is not necessarily attainable within the limits of the rule, e.g., succeeding to a barony (Tollemache v. Earl of Coventry, 2 Cl. & F. 611), or being in holy orders. Procter v. Bishop of Bath and Wells, 2 H. Bl. 358.

(4.) A gift of leaseholds to trustees upon trusts corresponding with lands in strict settlement, and expressed as not to vest in any tenant in tail in possession till he shall attain the age of twenty-one years (Ibbetson v. Ibbetson, 5 My. & Cr. 26; Lord Dungannon v. Smith, 12 Cl. & F. 546); but it is otherwise if the gift is expressed not to vest in any tenant in tail by purchase under the settlement till such tenant attain the age of twenty-one years, and this latter is the common limitation.

(5.) The literal exercise of powers of appointment (not being general) in favour of objects who if inserted (as they must be considered as being) in the instrument (whether deed or will) creating the power, would take interests beyond the limits of the rule, as calculated from the date of the operation of the creating instrument (Devonshire (Duke) v. Lord G. Cavendish, 4 T. R. 741); nevertheless such a power is not void in its creation, and the donee of it may, by using discretion, exercise it in a valid manner. Attenborough v. Attenborough, 1 K. & J. 296.

(6.) The creation of powers of sale or management of estates exercisable generally during the minorities of persons entitled to the settled estates (Ferrand v. Wilson, 4 Hare, 373), such persons not being expressed to be entitled by purchase under the settlement; nevertheless, such powers, if intended for the payment off of incumbrances on the settled estates, would be valid. Briggs v. Oxford (Earl), 1 De G. M. & G. 363.

The rule of perpetuities does not apply to executory trusts, or rather the Court of