Page:Black's Law Dictionary (Second Edition).djvu/955

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PROBATIVE

mediate proceedings are presumed. 1 Greenl. EV. I 20.

PROBATIVE. In the law of evidence. Having the effect of proof: tending to prove, or actuuily proving.

—P:-ubative fact. in the law of evidence.

A fnci WlliL'l_] actually has the edect of pruung

a fact sought; an evidentiary fact. 1 Benth. V.

P It 0 13 AT 0 R. In old English law. Strictly, an accomplice in felony who to save himself confessed the fact, and charged or |1('ULiE(1 any other as principal or accessory, against whom he was bound to make good his charge. It also signified an appmver. or one who undeitakes to prove a crime charg- ed upon another. Jacob. See State v. Gra- ham, 4.1 N. J. Law, 16, 32 Am. Rep. 174.

PROBATORY TERM. This name is given. in the practice of the English admiralty courts. to the space of time allowed for the taking of testimony in an action. after issue formed.

PROBATUM EST. proved.

Lat. It is tried or

PROBUS ET LEGALIS HOMO. Lat. .\ good and lawful man. A phrase particu- i.ii-ly applied to a juror or witness who was free from all exception. 3 Bl. Comm. 102.

FROG]-IDENDO. In practice. A writ by which a Cause which has been removed from an inferior to a superior court by certiorari or otherwise is sent down again to the same court, to be proceeded in there, Where it appears to the superior court that it was removed on insuliicient grounds. Cowell; 1 i‘ldd. Pr. 408, 4.10; Yates v. People, 6 Johns. (N. Y.i 446.

A wiit which issued out of the common- law juiisdiction of the court of chancery, when judges of any subordinate court delay- ed the parties, for that they would not give judgment either on the one side or on the other, when they ought so to do. in such a case. a writ of jzrocellcmio ad jmllcimn was awarded. commanding the inferior court in the sovereign‘s name to proceed to give judgment, but without specifying any particular judgment. Wharton.

A writ by which the commission of a justice of the peace is revived, after having been suspended. 1 Bl. Comm. 353. -1’:-ocedentlo on aid prayer-. If one pray in aid of the crown in real action, and aid be granted. it shali be awnrrled that he sue to the sovereign in cbnricery, and the justices in the common pleas shall stay until this writ of praucdcmia dc laquclu come to them. So, liiljsli, on a personal action. New I\‘at. Brev.

. PROCEDURE. This word is commonly

opposed to the sum of legal principles constituting the substance of the law, and denotes

947

PROCEEDING

the body of rules, whether of practice or or pleading, whereby rights are effectuated through the successful application of the proper remedies. It is also generally distin- guished from the law of evidence. Brown. See Kring v. Missouri, 101' U. S. 221, 2 Sup. CL 443, 27 L. Ed. 506; Cochran \'. Ward, 5 Ind. App. 89. 29 N. E. 795, 31 N. E. 581. 51 Am. St. Rep. 229.

The law of procedure is what is now com- monly termed by jurists "adjective law," (ll. 12.)

PROCEED. A stipulation not to proceed against a party is an agreement not to sue. To sue a man is to proceed against him. Planters‘ Bnnlr v. Houser. 57 Ga. 140; Iliff v. Weymouth. 40 Ohio St. 101.

PROCEEDING. In a general sense, the form and manner of conducting juridical business before a court or judicial officer: regular and orderly progress in form of law; including all possible steps in an action from its cominencenient to the execution of judgment. In a more particular sense, any application to a court of justice. however made, for aid in the enforcement 0!.’ rights, for re- lief, for redress of injuries, for damages, or for any remedial object Erwin v. U. S. (D. C.) 37 Fed. 488. 2 L. R. A. ?.’9; People v. Raymond, 1S6 I11. -107. 57 N. E. 1066; More- wood v. Hollister. 6 N. Y. 309; [The v. Rail- way Co.. 3 S. D. 563. 5-1 N. W. 601; State V. Gordon, 8 Wash. 488, 36 Pac. 495.

—Oo!.lntera.l proceeding. One in which the particular question may arise or be involved incidentally, but which is not instituted for the vcrj purpose of deciding such question; as in the rule that a judgment cannot be attacked, or a corporation‘: right to exist be questioned. in any collateral proceeding. Pr,-yton v. Peyton. 28 Wash. 278, 68 Pac. 757: Peoria & P. U. R. Co. v. Peoria & F. R. Co.. 105 Ill. ‘l16.—Exeu- utory proceeding. In the law of Louisi.ina. a proceeding WlIll.ll is resorted to in the following cases: Wiinn the creditor-'s right arises from an art importing a confession of judgment, and which contains a privilege or mort- gage in his favor; or when the creditor demands the execution of a jutl;-ruent vshixh has hccn rendered by a tribunal different from that within whose jurisdiction the execution is songlit. Code Prac. La. art. 732.—Lega1 'n:roceedings. This term includes ail proceedings nutliorizod or sanctioned by law, and brought nr instituted in a court of justice or le_::il tri- hunal, for the acquiring of a right or the en- forcement of a rcmetly. Griem v. Fidelity & Casualty Co.. 99 Wis 530. 75 N. W G7: In re Emslie (D. C.) BR Fed. 720: Id.. 102 Fed. 2 . 42 C. C. A. 350; Mail: v. Cuinpau. G9 Vt. 558. 33 At]. 149. 69 Am St Ron. 943. —Specin.1 proceeding. This phrase has been usrd in the New York and other codes of procrilure as a generic term for all ci\il rernodics which are not ordinary actions. Code I'roc. N. Y. § 3.—SI1mm-ally px'oceed.i_ng. Anv proceeding by which a (‘onlroversy is settled. case disposed of, or trial Condllctcd, in a prompt and simple manner, without the aid of a juiv, without presentiuent or indictment, or in otbcr respects out of the regular course of the com- mon law. In procedure. proceedings are said to be summary when they are short and simple in comparison with regular proceedings; i. e.,

in comparison with the proceedings which