Blacks Law Dict. 1st ed

PROBABLE CAUSE

945

PROBATIONES, ETC.

PROBABLE "Probable cause" may be defined to be an apparent state of facts found to exist upon reasonable in quiry, (that is, such inquiry as the given case renders convenient and proper,) which would induce a reasonably intelligent and prudent man to believe, in a criminal case, that the accused person had committed the crime charged, or, in a civil case, that a cause of action existed. 23 Ind. 67. See, also, 111 Mass. 497; 44 Vt. 124; 9Hun, 178. "Probable cause," in malicious prosecution, means the existence of such facts and circum stances 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 which he was prosecuted. 24 How. 544. PROBABLE EVIDENCE. Presump tive evidence is so called, from its founda tion in probability. PROBABLE REASONING. In the law of evidence. Reasoning founded on the probability of the fact or proposition sought to be proved or shown; reasoning in which the mind exercises a discretion in deducing a conclusion from premises. JSurnll. Probandi necessitas incumbit 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. Toclaim a thing as one's own. Jacob. In modern law language. To make proof, as in the term "onus probandi," the burden or duty of making proof. PROBATE. The act or process of prov ing a will. The proof before an ordinary, surrogate, registei, or other duly authorized person that a document produced before him for official recognition and registration, and alleged to be the last will and testament of a ceitain deceased person, is such in reality. The copy of the will, made out in parch ment or due form, under the seal of the or dinary or court ot probate, and usually de livered to the executor or administrator of the deceased, together with a certificate of the will's having been proved, is also com monly called the "probate." In the canon law, "probate" consisted of probatio, the proof of the will by the execu tor, and approbatio, the appiobation given by the ecclesiastical judge to the proof. 4 Reeve, Eng. Law, 77. AM.DICT.LAW—60 CAUSE.

The term is used, particularly in Pennsyl vania, but not in a strictly technical sense, to designate the proof of his claim made by a non-resident plaintiff (when the same is on book-account, promissory 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 filed in court, with the jurat of such notary attached. PROBATE, DIVORCE, AND ADMI RALTY DIVISION. That division of the English high court of justice which exercises jurisdiction in matters formerly within the exclusive cognizance of the court of piobate, the court for divorce and matrimonial causes, and the high court of admiralty. (Judicature Act 1873, § 34.) It consists of two judges, one of whom is called the "President." The existing judges are the judge of the old pio bate and divorce couits, who is president of thedivision, and the judge of the old admiralty court, and of a number of registrars. Sweet. PROBATE DUTY. A tax laid by gov ernment on every will admitted to probate, and payable out of the decedent's estate. PROBATIO. Lat. Proof; more partic ularly direct, as distinguished from indirect or circumstantial, evidence. PROBATIO MORTUA. Dead p~oof; that is proof by inanimate objects, such as deeds or other written evidence. PROBATIO PLENA. In the civil law. Full proof; proof by two witnesses, or a pub lic instrument. Hallifax, Civil Law, b. 3, c. 9, no. 25; 3 Bl. Comm. 370. PROBATIO SEMI-PLENA. In the civil law. Half-full proof; half-proof. Proof by one witness, or a private instrument. Hallifax, Civil Law, b. 3, c. 9, no. 25; 3 Bl. Comm. 370. PROBATIO VIVA. Living proof; that 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. PROBATIONER. One who is upon trial. Probationes debent esse evidentes, soil, perspicuse et faciles intelligi. Co. Litt. 283. Pi oofs ought to be evident, to wit, perspicuous and easily understood.

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