Bouvier

BREACH, contract, torts. The violation of an obligation, engagement or duty; as a breach of covenant is the non-performance or violation of a covenant; the breach of a promise is non-performance of a promise; the breach of a duty, is the refusal or neglect to execute an office or public trust, according to law.

2. Breaches of a contract are single or continuing breaches. The former are those which are committed at one single time. Skin. 367; Carth. 289. A continuing breach is one committed at different times, as, if a covenant to repair be broken at one time, and the same covenant be again broken, it is a continuing breach. Moore, 242; 1 Leon. 62; 1 Salk. 141; Holt, 178; Lord Raym. 1125. When a covenant running with the land is assigned after a single breach, the right of action for such breach does not pass to the assignee but if it be assigned after the commencement of a continuing breach, the right of action then vests in such assignee. Cro. Eliz. 863; 8 Taunt. 227;, 2 Moore, 164; 1 Leon. 62.

3. In general the remedy for breaches of contracts, or quasi contracts, is by a civil action.

BREACH OF THE PEACE. A violation of public order; the offence of disturbing the public peace. One guilty of this offence may be held to bail for his good behaviour. An act of public indecorum is also a breach of the peace. The remedy for this offence is by indictment. Vide Pace,

BREACH OF PRISON. An unlawful escape out of prison. This is of itself a misdemeanor. 1 Russ. Cr. 378; 4 Bl. Com. 129 2 Hawk. P. C. c. 18, s. 1 7 Conn. 752. The remedy for this offence is by indictment. See Escape.

BREACH OF TRUST. The wilful misappropriation, by a trustee, of a thing which had been lawfully delivered to him in confidence.

2. The distinction between larceny and a breach of trust is to be found chiefly in the terms or way in which the thing was taken originally into the party’s possession; and the rule seems to be, that whenever the article is obtained upon a fair contract, not for a mere temporary purpose, or by one who is in the. employment of the deliverer, then the subsequent misappropriation is to be considered as an act of breach of trust. This rule is, however, subject to many nice distinctions. 15 S. & R. 93, 97. It has been adjudged that when the owner of goods parts with the possession for a particular purpose, and the person who receives them avowedly for that purpose, has at the time a fraudulent intention to make use of the possession as the weans of converting the goods to his own use, and does so convert them, it is larceny; but if the owner partwith the property, although fraudulent means have been used to obtain it, the, act of conversion is not larceny. Id. Alis. Princ. c. 12, p. 354.

3. In the Year Book, 21 H. VII. 14, the distinction is thus stated: Pigot. If I deliver a jewel or money to my servant to keep, and he flees or goes from me with the jewel, is it felony ? Cutler said, Yes : for so long as he is with me or in my house, that which I have delivered to him is adjudged to be in my possession; as my butler, who has my plate in keeping, if he flees with it, it is felony. Same law; if he who keeps my horse goes away with, him: The reason is, they are always in my possession. But if I deliver a horse to my servant to ride to market or the fair and he flee with him, it is no felony; for e comes lawfully to the possession of the horse by delivery. And so it is, if I give him a jewel to carry to London, or to pay one, or to buy a thing, and he flee with it, it is not felony : for it is out of my possession, and he comes lawfully to it. Pigot. It can well be: for the master in these cases has an action against him, viz., Detinue, or Account. See this point fully discussed in Stamf. P. C. lib. 1; Larceny, c. 15, p. 25. Also, 13 Ed. IV. fo. 9; 52 H. III. 7; 21 H. VII. 15.

BREACH. pleading. That part of the declaration in which the violation of the defendant’s contract is stated.

2. It is usual in assumpsit to introduce the statement of the particular breach, with the allegation that the defendant, contriving and fraudulently intending craftily and subtilely to deceive and defraud the plaintiff, neglected and refused to perform, or performed the particular act contrary to the previous stipulation. ?

3. In debt, the breach or cause of action. complained of must proceed only for the non-payment of money previously alleged to be payable; and such breach is nearly similar, whether the action be in debt on simple contract, specially, record or statute, and is usually of the following form: ” Yet the said defendant, although often requested so to, do, hath not as yet paid the said sum of ____ dollars, above demanded, nor any part thereof, to the said plaintiff, but bath hitherto wholly neglected and refused so to do, to the damage of the said plaintiff _________ dollars, and therefore he brings suit,” &c.

4. The breach must obviously be governed by the nature of the stipulation; it ought to be assigned in the words of the contract, either negatively or affirmatively, or in words which are co-extensive with its import and effect. Com. Dig. Pleader, C 45 to 49; 2 Saund. 181, b, c; 6 Cranch, 127; and see 5 John. R. 168; 8 John. R. 111; 7 John. R. 376; 4 Dall. 436; 2 Hen. & Munf. 446.

5. When the contract is in the disjunctive, as, on a promise to deliver a horse by a particular day, or pay a sum of money, the breach ought to be assigned that the defendant did not do the one act nor the other. 1 Sid. 440; Hardr. 320; Com. Dig. Pleader, C.

PRAYER, chanc. pleadings. That part of a bill which asks for relief.

2. The skill of the solicitor is to be exercised in framing this part of the bill. An accurate specification of the matters to be decreed in complicated cases, requires great discernment and experience; Coop. Eq. Pl. 13; it is varied as the case is made out, concluding always with a prayer of general relief, at the discretion of the court. Mitf. Pl. 45.

PRAYER OF PROCESS, chanc. plead. That part of a bill which prays that the defendant be compelled to appear and answer the bill, and abide the determination of the court on the subject, is called prayer of process. This prayer must contain the name’s of all Persons who are intended to be made parties. Coop. Eq. Pl. 16; Story, Eq. Pl. 44.

PRAYER FOR RELIEF, chan. pleading. This is the name of that part of the bill, which, as the phrase imports, prays for relief. This prayer is either general or special but the general course is for the plaintiff to make a special prayer for particular relief to which he thinks himself entitled, and then to conclude with a prayer of general relief at the discretion of the court. Story, Eq. Pl. 40; 4 Bouv. Inst. n. 4174-6.

PETITION. An instrument of writing or printing containing a prayer from the person presenting it, called the petitioner, to the body or person to whom it is presented, for the redress of some wrong, or the grant of some favor, which the latter has the right to give.

2. By the constitution of the United States the right “to petition the government for a redress of grievances,” is secured to the people. Amendm. Art. 1.

3. Petitions are frequently presented to the courts in order to bring some matters before them. It is a general rule, in such cases, that an affidavit should be made that the facts therein contained are true as far as known to the petitioner, and that those facts which he states as knowing from others be believes to be true.

PETITION OF RIGHT, Eng. law. When the crown is in possession, or any title is vested in it which is claimed by a subject, as no suit can be brought against the king, the subject is allowed to file in chancery a petition of right to the king.

2. This is in the, nature of an action against a subject, in which the petitioner sets out his right to tbat which is demanded by him, and prays the king to do him right and justice; and, upon a due and lawful trial of the right, to make him restitution. It is called a petition of right, because the king is bound of right to answer it, and let the matter therein contained be determined in a legal way, in like manner as causes between subject and subject. The petition is presented to the king, who subscribes it, with these words, soit droit fait al partie, and thereupon it is delivered to the chancellor to be executed according to law. Coke’s Entr. 419, 422 b; Mitf. Eq. Pl. 30, 31; Coop. Eq. Pl. 22, 23.

PETITORY. That which demands or petitions that which has, the, quality of a prayer or petition; a right to demand.

2. A petitory suit or action is understood to be one in which the mere title to property is to be enforced by means of a demand or petition, as distin-guished from a possessory suit. 1 Kent, Com. 371.

3. In the Scotch law, petitory actions are so called, not because something is sought to be awarded by the judge, for in that sense all actions must be petitory, but because some demand is made upon the defender, in consequence either of the right of property or credit in the pursuer. Thus, actions for restitution of movables, actions of pounding, of forthcoming, and indeed all personal actions upon contracts, or quasi contracts, which the Romans called condictiones, are petitory. Ersk. Inst. b. 4, t. 1, n. 47. http://www.constitution.org/bouv/bouvier_p.htm

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