Page:Black's Law Dictionary (Second Edition).djvu/954

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PROBABLE

such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor. that the person charged was guilty of the crime for vibieh he was prosecuted. Wheel- er v. 1\(‘Sbit[. 2-,l How. 5-14, 16 L. Ed. 7G5'.— Probable evidence. See EVIDENOE.—P1‘olI- able reasoning. In the law of evidence. Reasoning founded on the probability of the [act or proposition sought to be proved or shown; reasoning in which the mind exercises a discretion in deducing a conclusion from premises. Burrill.

P:-obandl necessltas incuzmbit illi qui agit. The necessity of proving lies with him who sues. Inst. 2, 20, 4. In other words, the burden of proof of a proposition is upon him who advances it affirmatively.

PROBARE. In Saxon law. To claim a thing as oue's own. Jacob. In modern law language. To make

proof, as in the term “onus gzrobamli," the burden or duty of making proof.

PROBATE. The act or process of proving :1 “ill The proof before an ordinary, surrogate, register, or other duly authorized person that a document produced before him for uliicial recognition and registration, and alleged to be the last will and testament of a ceiluiu detensed poison, is such in reality.

The copy of the will, made out in parch- ment or due form, under the seal of the ordinary or court of probate, and usually de- iirered to the executor or administrator of the deceased, together with a certificate of the iviil's having been proved, is also com- monly called the "probate.”

In the moon law, "probate" consisted of

117-obizl-io, the proof of the will by the executor, and appmluztio, the approbation given by the ecclesiastical judge to the proof. 4 Reeve, Eng. Law, 77. And see In re sp1ege].halter’s Wi.ll, 1 Peunewill (Del.) 5, 39 AtL 465; MC- Cay v. Clayton, 119 Pa. E3, 12 Atl. S00: Pettil: v. Black, 13 Neh. 142, 12 N. W. 5&1; Reno v. Mccully, 65 Iowa, 029, 22 N. W. 90 , Appeal of Dawley, 16 R. I. 694, 19 Atl. 248. —Conimon and solemn form of probate. In English law, there are two kinds of pro- bate, namely, probate in. common form, and Probate ll] solemn form. Probate in common orm is granted in the registry, without any formal procedure in court, upon an en; pm-to application made by the executor. Probate in solemn form is in the nature of a final decree pronounced in open court, all parties interested having been duly cited. The ditference between the elfect of piobate in common form and probate in. soienin form is that probate in common form is revocable, whereas probate in solemn form is irrevocable, as against all per. sons who bore been cited to ace the proceedings, or who can be proved to have been privy to Lbose proceedings, except in the case where a will of subsequent date is discovered. in which case probate of an. earlier will, though granted in solemn form, would be revoked. Coote, Prob. Pr. (5th Ed.) 237-239; Mosley & Whit- ley. And - Luther i. Lutber, 122 lll. 558, 13 N. E. 16 .

The term is used, particularly in Pennsyl- vania, but not in a strictly technical sense.

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946

PROBATIS EXTREMIS

to designate the proof of his claim made by a non-resident plaintiff (when the same is on book—accouut, pl‘O[l].lSSDl'y note, etc.) who swears to the correctness and justness of the same, and that it is due, before a notary or other officer in his own state; also of the copy or statement of such claim tiled in court. with the jurat of such notary attached.

—P1-abate bond. One required by law to be given to the probate court or judge, as incidental to proceedings in such courts. such as the bonds of executors. administrators, nnd guard- inns. See Thomas v. \\’hite, 12 lliziss. 36?.- Pr-obate code. The body or system of law re- lating to all matters of which probate courts have jurisdiction. Johnson v. Harrison. 47 Minn. 575, 50 i\.'. W. 923, 28 Am. St. Rep. 392. —P1-abate court. See Counr or Peoniirr. —P:|-olwnte, divorce, and admiralty divi- sion. That division of the English high court of justice which exercises jurisdiction in matters formerly witbio the exclusive cognizance of the court of probate, the court for divorce and matrimonial causes, and the high court of admiralty. [Judicature Act 1873, § 34) consists of two judges, one of whom is called the “Presidcnt." The existing judges are the judge of the old probate and divorce courts. who is president of the division, and the judge of the old admiralty court, and of a number of registrars. Sweet.—P1-obate duty. A tax laid by government on every will admitted to probate, and payable out of the decedent's es- mte.—Px~obate homestead. See H0)lESTEAD, —P1-oliate judge. The judge of a court oi probate.

PROBATIO.}} Lat. Proof; more particu- larly direct, as distinguished from indirect or circumstantial evidence.

—P1-olmtio mortua. Dead proof: that is proof by inanimate objects, such as deeds or other written eVldel.iCe.—Pr'oI:m.tio plans. in the civil law. Full proof: proof a two wit- nesses, or a ubl.ic instrument. Hallifax, Civil Law. b. 3, c. . no. 25; 3 Bl. Comm. .5TO.—Pro- batio semi-plena_ In the civil law. _IIalffull proof; half-proof. Proof by one witness, or a. private instrument. I-Iallifax, Civil Law,

, c. 9, no. 25; BL mm. .5 —Px-oluatio viva. Living proof; tbnt is, proof by the mouth of living witnesses.

PROBATION. The act of proving; evi- dence; proof. Also trial; test; the time of novitiate. Used in the latter sense in the monastic orders.

In modern criminal administration, allowing a person convicted of some minor offense (partlcularly juvenile offenders) to go at large, under a suspension of sentence, during good behavior, and generally under the supervision or guardianship of a "probation officer."

PROBATIONER. One who is upon trial. A convicted offender who is allowed to go at large. under suspension of sentence, during good behavior.

Probationes debent ease evidentea, scil. per-spicuaa at facile: intelligi. Co. Litt. 2S3. Proofs ought to be evident, to-wit, perspicuous and easily understood.

Probatis extremis, prsnsumuntur media. The extremes being proved, the inter-