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CABALLERIA, Spanish law. A measure of land, which is different
in different provinces. Diccionario por la Real Academia. In
those parts of the United States, which formerly belonged to
Spain, the caballeria is a lot of one hundred feet front and two
hundred feet deep, and equal, in all respects, to five peonias.
(q. v.) 2 White's Coll. 49; 12 Pet. 444. note. See Fanegas.
CABINET. Certain officers who taken collectively make a board;
as, the president's, cabinet, which is usually composed of the
secretary of state, secretary of the treasury, the attorney
general, and some others.
2. These officers are the advisers of the president.
CADASTRE. A term derived from the French, which has been
adopted in Louisiana, and which signifies the official statement
of the quantity and value of real property in any district, made
for the purpose of justly apportioning the taxes payable on such
property. 3 Am. St. Pap. 679; 12 Pet. 428, n.
CADET. A younger brother, one trained up for the army or navy.
CADI. The name of a civil magistrate among the Turks.
CALENDER. An almanac. Julius Caesar ordained that the Roman
year should consist of 365 days, except every fourth year, which
should contain 366, the additional day to be reckoned by counting
the twenty-fourth day of February (which was the 6th of the
calends of March) twice. See Bissextile is period of time exceeds
the solar year by eleven minutes or there abouts, which amounts
to the error of a day in about 131 years. In 1582, the error
amounted to eleven days or more, which was corrected by Pope
Gregory. Out of this correction grew the distinction between Old
and New Style. The Gregorian or New Style was introduced into
England in 1752, the 2d day of September (0. S.) of that year
being reckoned as the 14th day of September, (N. S.) glee
Almanac.
CALENDER, crim. law. A list of prisoners, containing their
names, the time when they were committed, and by whom, and the
cause of their commitments.
CALIFORNIA. The name of one of the states of the United States.
It was admitted into the Union, by-an Act of Congress, passed the
9th September, 1850, entitled "An act for the admission of the
state of California into the Union."
§1. This section enacts and declares that the state of
California shall be one of the United States, and admitted into
the Union on an equal footing with the original states, in all
respects whatever.
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§2. Enacts that the state of California shall be entitled to
two representatives, until the representatives in Congress shall
be apportioned according to the actual enumeration of the
inhabitants, of the United States.
§3. By this section a condition is expressly imposed on the
said state that the people thereof shall never interfere with the
primary disposal of the public lands within its limits, nor pass
any law, nor do any act, whereby the title of the United States
to, and right to dispose of the same, shall be impaired or
questioned. It also provides that they shall never lay any tax,
or assessment of any description whatever, upon the public domain
of the United States; and that in no case shall non-resident
proprietors, who are citizens of the United States, be taxed
higher than residents; that all navigable waters within the said
state shall be common highways, forever free, as well to the
inhabitants of said state, as to citizens of the United States,
without any tax, impost or duty therefor; with this proviso,
viz., that nothing contained in the act shall be construed as
recognizing or rejecting the propositions tendered by the people
of California, as articles of compact in the ordinance adopted by
the convention whicb formed the constitution of that state.
2. The principal features of the constitution, of California,
are similar to those of most, of the recently formed state
constitutions. It establishes an elective judiciary, and: confers
on the executive a qualified veto. It prohibits the creation of a
state debt exceeding $300,000. It provides for the protection of
the homestead from execution, and secures the property of married
females separate from that of their husbands. It makes a liberal
provision for the support of schools, prohibits the legislature
from granting divorces, autborizing lotteries, and creating
corporations, except by general laws, and from establishing any
bank's of issue or circulation. It provides also that every
stockholder of a corporation or joint-stock association, shall be
individually and personally liable for his proportion of all its,
debts or liabilities. There is also a clause prohibiting slavery,
which, it is said, was inserted by the unanimous vote of the
delegates.
CALLING THE PLAINTIFF, practice. When a plaintiff perceives
that he has not given evidence to maintain his issue, and intends
to become nonsuited, he withdraws himself, when the cryer is
ordered to call the plaintiff, and on his failing to appear, he
becomes nonsuited. 3 Bl. Com. 376.
CALUMNIATORS, civil law. Persons who accuse others, whom they
know to be innocent, of having committed crimes. Code 9, 46, 9.
CAMBIST. A person skilled in exchange; one who deals or trades
in promissory notes or bills of exchange.
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CAMERA STELLATA, Eng. law. The court of the Star Chamber, now
abolished.
CAMPARTUM. A part or portion of a larger field or ground,
which would otherwise be in gross or common. Vide Champerty.
CANAL. A trench dug for leading water in a particular
direction, and confin-
ing it.
2. Public canals are generally protected by the law which
authorizes their being made. Various points have arisen under
numerous laws authorizing the construction of canals, which have
been decided in cases reported in 1 Yeates, 430; 1 Binn. 70; 1
Pennsyl. 462; 2 Pennsyl. 517; 7 Mass. 169; 1 Sumu. 46; 20
Johns. 103, 735; 2 Johns. 283; 7 John. Ch. 315; 1 Wend. 474;
5 Wend. 166; 8 Wend. 469; 4 Wend. 667; 6 Cowen, 698; 7 Cowen,
526 4 Hamm. 253; 5 Hamm. 141, 391; 6 Hamm. 126; 1 N. H. Rep.
339; See River.
CANCELLARIA CURIA. The name formerly given to the court of
chancery.
CANCELLATION. Its general acceptation, is the act of crossing a
writing; it is used sometimes to signify the manual operation of
tearing or destroying the instrument itself. Hyde v. Hyde, 1 Eq.
Cas. Abr. 409; Rob. on Wills, 367, n.
2. Cancelling a will, animo revocandi, is a revocation of it,
and it is unnecessary to show a complete destruction or
obliteration. 2 B. & B. 650; 3 B. & A. 489; 2 Bl. R. 1043; 2
Nott & M'Cord, 272; Whart. Dig. Wills, c.; 4 Mass. 462. When a
duplicate has been cancelled, animo revocandi, it is the
cancellation of both parts. 2 Lee, Ecc. R. 532.
3. But the mere act of cancelling a will is nothing, unless it
be done animo revocandi, and evidence is admissible to show, quo
animo, the testator cancelled it., 7 Johns. 394 2 Dall. 266; S.
C. 2 Yeates, 170; 4 Serg. & Rawle, 297; cited 2 Dall. 267, n.;
3 Hen. & Munf. 502; Rob. on Wills, 365; Lovel, 178; Toll. on
Ex'rs, Index, h. t.; 3 Stark. Ev. 1714; 1 Adams' Rep. 529 Mass.
307; 5 Conn. 262; 4 Wend. 474; 4 Wend. 585; 1 Harr. & M'H.
162; 4 Conn. 550; 8 Verm. 373; 1 N. H. Rep. 1; 4 N. H. Rep.
191; 2 Eccl. Rep. 23.
4. As to the effect of cancelling a deed, which has not been
recorded, see 1 Adams' Rep. 1; Palm. 403; Latch. 226; Gilb.
Law, Ev. 109, 110; 2 H . Bl. 263: 2 Johns. 87 1 Greenl. R. 78;
10 Mass. 403; 9 Pick. 105; 4 N. H. Rep. 191; Greenl. Ev. §265;
5 Conn. 262; 4 Conn. 450; 5 Conn. 86; 2 John. R. 84; 4 Yerg.
375; 6 Mass. 24; 11 Mass. 337; 2 Curt. Ecc. R. 458.
5. As to when a court of equity will order an agreement or
other instrument to be cancelled and delivered up, see 4 Bouv.
Inst. n. 3917-22.
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CANDIDATE. One who offers himself or is offered by others for
an office.
CANON, eccl. law. This word is taken from the Greek, and
signifies a rule or law. In ecelesiastical law, it is also used
to designate an order of religious persons. Francis Duaren says,
the reason why the ecclesiastics called the rules they
established canons or rules, (canones id est regulas) and not
laws, was modesty. They did not dare to call them (leges) laws,
lest they should seem to arrogate to themselves the authority of
princes and magistrates. De Sacris Ecclesiae Ministeriis, p. 2,
in pref. See Law, Canon.
CANONIST. One well versed in canon or ecclesiastical law.
CANNON SHOT, war. The distance which a cannon will throw a
ball. 2. The whole space of the sea, within cannon shot of the
coast, is considered as making a part of the territory; and for
that reason, a vessel taken under the cannon of a neutral
fortress, is not a lawful prize. Vatt. b. 1, c. 23, s. 289, in
finem Chitt. Law of Nat. 113; Mart. Law of Nat. b. 8, c. 6, s.
6; 3 Rob. Adm. Rep. 102, 336; 5 Id. 373; 3 Hagg. Adm. R. 257.
This part of the sea being considered as part of the adjacent
territory, (q. v.) it follows that magistrates can cause the
orders of their governments to be executed there. Three miles is
considered as the greatest distance that the force of gunpowder
can carry a bomb or a ball. Azun. far. Law, part 2, c. 2, art. 2,
§15; Bouch. Inst. n. 1848. The anonymous author of the poem,
Della Natura, lib. 5, expresses this idea in the following lines:
Tanto slavanza in mar questo dominio, Quant esser puo
d'antemurale e guardia, Fin dove puo da terra in mar vibrandosi
Correr di cavo bronzo acceso fulinine. Far as the sovereign can
defend his sway, Extends his empire o'er the watery way; The
shot sent thundering to the liquid plain, Assigns the limits of
his just domain. Vide League.
CAPACITY. This word, in the law sense, denotes some ability,
power, qualifi-
cation, or competency of persons, natural, or artificial, for the
performance of civil acts, depending on their state or condition,
as defined or fixed by law; as, the capacity to devise, to
bequeath, to grant or convey lands; to take; or to take. and
hold lands to make a contract, and the like. 2 Com. Dig. 294;
Dane's Abr. h. t.
2. The constitution requires that the president, senators, and
representatives should have attained certain ages; and in the
case of the senators and representatives, that out these they
have no capacity to serve in these offices.
3. All laws which regulate the capacity of persons to contract,
are considered personal laws; such are the laws which relate to
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minority and majority; to the powers of guardians or parents, or
the disabilities of coverture. The law of the domicil generally
governs in cases of this kind. Burge. on Sureties, 89.
CAPAX DOLI. Capable of committing crime. This is said of one
who has sufficient mind and understanding to be made responsible
for his actions. See, Discretion.
CAPE, English law. A judicial writ touching a plea of lands and
tenements. The writs which bear this name are of two kinds,
namely, cape magnum, or grand, cape, and cape parvum, or petit
cape. The petit cape, is so called, not so much on account of the
smallness of the writ, as of the letter. Fleta , lib. 6, c. 55,
§40. For the difference between the form and the use of these
writs, see 2 Wms. Saund. Rep. 45, c, d; and Fleta, ubi sup.
CAPERS. Vessels of war owned by private persons, and different
from ordinary privateers (q. v.) only in size, being smaller.
Bea. Lex. Mer. 230.
CAPIAS, practice. This word, the signification of which is "
that you take," is applicable to many heads of practice. Several
writs and processes, commanding the sheriff to take the person of
the defendant, are known by the name of capias. For example:
there are writs of capias ad respondendum, writs of capias ad
computandum, writs of capias ad satisfaciendum, &c., each
especially adapted to the purposes indicated by the words used
for its designation. See 3 Bl. Com. 281; 3 Bouv. Inst. n. 2794.
CAPIAS AD AUDIENDUM JUDICIUM, practice. A writ issued in a case
of misdemeanor, after the defendant has appeared and found
guilty, and is not present when called. This writ is to bring him
to judgment. 4 BI. Com. 368.
CAPIAS AD COMPUTANDUM, practice. A writ issued in the action of
account render, upon the judgment quod computet, when the
defendant refuses to appear, in his proper person, before the
auditors, and enter into his account. According to the ancient
practice, the defendant, after arrest upon this process, might be
delivered on main-prize, or in default of finding mainpernors, he
was committed to the Fleet prison, where the auditors attended
upon him to hear and receive his account. As the object of this
process is to compel the defendant to render an account, it does
not appear to be within the scope of acts abolishing imprisonment
for debt. For precedents, see Thesaurus Brevium, 38, 39, 40; 3
Leon. 149; 1 Lutw. 47, 51 Co. Ent. 46, 47; Rast. Ent. 14, b,
15.
CAPIAS AD RESPONDENDUM, practice. A writ commanding the
sheriff, or other proper officer, to "take the body of the
defendant and to keep the same to answer, ad respondendum, the
plaintiff in a plea," &c. The amount of bail demanded ought to,
be indorsed on the writ.
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2. A defendant arrested upon this writ must be committed to
prison, unless he give a bail bond (q. v.) to the sheriff. In
some states, (as, until lately, in Pennsylvania,) it is the
practice, when the defendant is liable to this process, to
indorse on the writ, No bail required in which case he need only
give the sheriff, in writing, an authority to the prothonotary to
enter his appearance to the action, to be discharged from the
arrest. If the writ has been served, and the defendant have not
given bail, but remains in custody, it is returned C. C., cepi
corpus; if he have given bail, it is returned C. C. B. B., cepi
corpus, bail bond; if the defendant's appearance have been
accepted, the return is, " C. C. and defendant's appearance
accepted." According to the course of the practice at common law,
the writ bears teste, in the name of the chief justice, or
presiding judge of the court, on some day in term time, when the
judge is supposed to be present, not being Sunday, and is made
returnable on a regular return day. 1 Penna. Pr. 36; 1 Arch. Pr.
67.
CAPIAS AD SATISFACIENDUM, practice. A writ of execution issued
upon a judgment in a personal action, for the recovery of money,
directed to the sheriff or coroner, commanding him to take the
defendant, and him safely keep, so that he may have his body in
court on the return day, to satisfy, ad satisfaciendum, the
plaintiff. This writ is tested on a general teste day, and
returnable on a regular return day.
2. It lies after judgment in most instances in which the
defendant was subject to a capias ad respondendum before, and
plaintiffs are subject to it, when judgment has been given
against them for costs. Members of congress and of the
legislature, (eundo, morando, et redezzndo,) going to, remaining
at, and returning from the places of sitting of congress, or of
the legislature, are not liable to this process, on account of
their public capacity; nor are ambassadors, (q. v.) and other
public ministers, and their ,servants. Act of Congress of April
30, 1790, s. 25 and 26, Story's Laws United States, 88; 1 Dunl.
Pr. 95, 96; Com. Dig. Ambassador, B; 4 Dall. 321. In
Pennsylvania, women are not subject to this writ except in
actions founded upon tort, or claims arising otherwise than ex
contractu. 7 Reed's Laws of Pa. 150. In several of the United
States, the use of this writ, as well as of the capias ad
respondendum, has been prohibited in all actions instituted for
the recovery of money due upon any contract, express or implied,
or upon any judgment or decree, founded on any contract, or for
the recovery of damages for the breach of any contract, with a
few exceptions. See Arrest.
3. It is executed by arresting the body of the defendant, and
keeping him in custody. Discharging him upon his giving security
for the payment of the debt, or upon his promise to return into
custody again before the return day, is an escape, although he do
return; 13 Johns. R. 366 8 Johns. R. 98; and the sheriff is
liable for the debt. In England, a payment to the sheriff or
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other officer having the ca. sa., is no payment to the plaintiff.
Freem. 842 Lutw. 587; 2 Lev. 203; 1 Arch. Pr. 278. The law is
different in Pennsylvania. 3 Serg. & Rawle, 467. The return made
by the officer is either C. C. & C., cepi corpus et comittitur,
if the defendant have been arrested and held in custody; or N.
E. I., non est inventus, if the officer has not been able to find
him. This writ is, in common language, called a ca. sa.
CAPIAS PRO FINE, practice, crim. law. The name of a writ which
issues against a defendant who has been fined, and who does not
discharge it according to the judgment. This writ commands the
sheriff to arrest the defendant and commit him to prison, there
to remain till he pay the fine, or be otherwise discharged
according to law.
CAPIAS UTLAGATUM English practice. A capias utlagatum is
general or special;
the former against the person only, the latter against the
person, lands and goods.
2. This writ issues upon the judgment of outlawry being
returned by the sheriff upon the exigent, and it takes its name
from the words of the mandatory part of the writ, which states
the defendant being outlawed utlagatum, which word comes from the
Saxon utlagh, Latinized utlagatus, and signifies bannitus, extra
legem. Cowel.
3. The general writ of capias utlagatum commands the sheriff to
take the defendant, so that he have him before the king on a
general return day, wheresoever, &c., to do and receive what the
court shall consider of him.
4. The special capias utlagatum, like the general writ,
commands the sheriff to take the defendant. The defendant is
discharged upon an attorney's undertaking, or upon giving bond to
the sheriff, in the same manner as when the writ is general. But
the special writ also commands the sheriff to inquire by a jury,
of the defendant's goods and lands, to extend and appraise the
same, and to take them in the king's hands and safely keep them,
so that he may answer to the king for the value and issue's of
the same. 2 Arch. Pr. 161. See Outlawry.
CAPIAS IN WITHERNAM, practice. A writ issued after a return of
elongata or eloigned has been made to a writ of retorno habendo,
commanding the sheriff to take so many of the distrainer's goods
by way of reprisal, as will equal the goods mentioned in the
retorno habendo. 2 Inst. 140; F. N. B. 68; and see form in 2
Sell. Pr. 169.
CAPIATUR, pro fine. The name of a writ which was issued to levy
a fine due to the king. Bac. Ab. Fines and Amercements, in prin.
See Judgment of Capiatur.
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CAPITA, or PER CAPITA. By heads. An expression of frequent
occurrence in laws regulating the distribution of the estates of
persons dying intestate. When all the persons entitled to shares
in the distribution are of the same degree of kindred to the
deceased person, (e.g. when all are grandchildren,) and claim
directly from him in their own right and not through an
intermediate relation, they take per capita, that is, equal
shares, or share and share alike. But when they are of different
degrees of kindred, (e. g. some tho children, others the
grandchildren or the great grandchildren of the, deceased,) those
more remote take er stirpem or per stirpes, that is, they take
respectively the shares their parents (or other relation standing
in the same degree with them of the surviving kindred entitled)
who are in the nearest degree of kindred to the intestate,) would
have taken had they respectively survived the intestate. Reeves'
Law of Descent, Introd. xxvii.; also 1 Rop. on Leg. 126, 130.
See Per Capita; Per Stirpes; Stirpes;
CAPITAL, political economy, commerce. In political economy, it
is that portion of the produce of a country, which may be made
directly available either to support the human species or to the
facilitating of production.
2. In commerce, as applied to individuals, it is those objects,
whether consisting of money or other property, which a merchant,
trader, or other person adventures in an undertaking, or which he
contributes to the common stock of a partnership. 2 Bouv. Inst.
n. 1458.
3. It signifies money put out at interest.
4. The fund of a trading company or corporation is also called
capital, but in this sense the word stock is generally added to
it; thus we say the capital stock of the Bank of North America.
CAPITAL CRIME. One for the punishment of which death is
inflicted, which punishment is called capital punishment. Dane's
Ab. Index, h. t.
2. The subject of capital punishment has occupied the attention
of enlightened men for a long time, particularly since the middle
of the last century; and none deserves to be more carefully
investigated. The right of punishing its members by society
cannot be denied; but how far this right extends, by the laws of
nature or of God, has been much disputed by theoretical writers,
although it cannot be denied, that most nations, ancient and
modern, have deemed capital punishment to be within the scope of
the legitimate powers of government. Beccaria contends with zeal
that the punishment of death ought not to be inflicted in times
of peace, nor at other times, except in cases where the laws can
be maintained in no other way. Bee. Chap. 28.
3. It is not within the plan of this work to examine the
question, whether the punishment is allowed by the natural law.
The principal arguments for and against it are here given.
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4.- 1. The arguments used in favor of the abolition of capital
punishment, are;
5. - 1st. That existence is a right which men hold from God,
and which society in body can, no more than a member of that
society, deprive them of, because society is governed by the
immutable laws of humanity.
6. - 2d. That, even should the right be admitted, this is a
restraint badly selected, which does not attain its end, death
being less dreaded than either solitary confinement for life, or
the performance of hard labor and disgrace for life.
7. - 3d. That the infliction of the punishment does not prevent
crimes, any more thau, other less severe but longer punishments.
8. - 4th. That as a public example, this punishment is only a
barbarous show, better calculated to accustom mankind to the
contemplation of bloodshed, than to restrain them.
9. - 5th. That the law by taking life, when it is unnecessary
for the safety of society, must act by some other motive this can
be no other than revenge. To the extent the law punishes an
individual beyond what is requisite for the preservation of
society, and the restoration of the offender, is cruel and
barbarous. The law) to prevent a barbarous act, commits one of
the same kind,; it kills one of the members of society, to
convince the others that killing is
unlawful.
10. - 6th. That by depriving a man of life, society is deprived
of the benefits which he is able to confer upon it; for,
according to the vulgar phrase, a man hanged is good for nothing.
11. - 7th. That experience has proved that offences which were
formerly punished with death, have not increased since the
punishment has been changed to a milder one.
12. - 2. The arguments which have been urged on the other side,
are,
13. - 1st. That all that humanity commands to legislators is,
that they should inflict only necessary and useful punisliments;
and that if they keep within these bounds, the law may permit an
extreme remedy, even the punishment of death, when it is
requisite for the safety of society.
14. - 2d. That, whatever be said to the contrary, this
punishment is more repulsive than any other, as life is esteemed
above all things, and death is considered as the greatest of
evils, particularly when it is accompanied by infamy.
15. - 3d. That restrained, as this punishment ought to be, to
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the greatest crimes, it can never lose its efficacy as an
example, nor harden the multitude by the frequency of executions.
16. - 4th. That unless this punishment be placed at the top of
the scale of punishment, criminals will always kill, when they
can, while committing an inferior crime, as the punishment will
be increased only by a more protracted imprisonment, where they
still will hope for a pardon or an escape.
17th. - 5th. The essays which have been made by two countries
at least; Russia, under the reign of Elizabeth, and Tuscany,
under the reign of Leopold, where the punishment of death was
abolished, have proved unsuccessful, as that punishment has been
restored in both.
18. Arguments on theological grounds have also been advanced on
both sides. See Candlish's Contributions towards the Exposition
of the Book of Genesis, pp. 203-7. Vide Beccaria on Crimes and
Punishments; Voltaire, h. t.; Livingston's Report on a Plan of
a Penal Code; Liv. Syst. Pen. Law, 22; Bentham on Legislation,
part 3, c. 9; Report to the N. Y. Legislature; 18 Am. Jur. 334.
CAPITATION. A poll tax; an imposition which is yearly laid on
each person according to his estate and ability.
2. The Constitution of the United States provides that "no
capitation, or other direct tax, shall be laid, unless in
proportion to the census, or enumeration, therein before directed
to be taken." Art. 1, s. 9, n. 4. See 3 Dall. 171; 5 Wheat. 317.
CAPITE, descents. By the head. Distribution or succession per
capita, is said to take place when every one of the kindred in
equal degree, and not jure representationis, receive an equal
part of an estate.
CAPITULARIES.The Capitularia or Capitularies, was a code of
laws promulgated by Childebert, Clotaire, Carloman, Pepin,
Charlemague, and other kings. It was so called from the small
chapters or heads into which they were divided. The edition by
Baluze, published in 1677, is said to be the best.
CAPITULATION, war. The treaty which determines the conditions
under which a fortified place is abandoned to the commanding
officer of the army which besieges it.
2. On surrender by capitulation, all the property of the
inhabitants protected by the articles, is considered by the law
of nations as neutral, and not subject to capture on the high
seas, by the belligerent or its ally. 2 Dall.
CAPITULATION, civ.law. An agreement by which the prince and the
people, or those who have the right of. the people, regulate the
manner in which the government is to be administered. Wolff,
§989.
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CAPTAIN or SEA CAPTAIN, mar. law. The name given to the master
or commander of a vessel. He is known in this country very
generally by the name of master. (q. v.) He is also frequently
denominated patron in foreign laws and books.
2. The captains in the navy of the United States, are officers
appointed by government. Those who are employed in the mercantile
service, have not strictly an official character. They are
appointed or employed by the owners on the vessels they command.
3. It is proposed to consider the duty of the latter. Towards
the owner of the vessel he is bound by his personal attention and
care, to take all the necessary precautions for her safety; to,
proceed on the voyage in which such vessel may be engaged, and to
obey faithfully his instructions; and by all means in his power
to promote the interest of his owner. But he is not required to
violate good faith, nor employ fraud even with an enemy. 3
Cranch, 242.
4. Towards others, it is the policy of the law to hold him
responsible for all losses or damages that may happen to the
goods committed to his charge; whether they arise from
negligence, ignorance, or wilful misconduct of himself or his
mariners, or any other person on board the ship. As soon,
therefore, as goods are put on board, they are in the master's
charge, and he is bound to deliver them again in the same state
in which they were shipped, and he is answerable for all losses
or damages they may sustain, unless it proceed from au inherent
defect in the article, or from some accident or misfortune which
could not be prevented.
5. It may be laid down as a general rule, that the captain is
responsible when any loss occurs in consequence of his doing what
he ought not to do, unless he was forced by the act of God,. the
enemies of the United States, or the perils of the sea.1 Marsh.
Ins. 241; Pard. n. 658.
6. The rights of the captain are, to choose his crew as he is
responsible for their acts, this seems but just, but a reasonable
deference to the rights of the owner require that he should be
consulted, as he, as well as the captain, is responsible for the
acts of the crew. On board, the captain is invested with almost
arbitrary power overthe crew, being responsible for the abuse of
his authority. Ab. on Sbipp. 162. He may repair the ship, and, if
he is not in funds to pay the expenses of such repairs, he may
borrow money, when abroad, on the credit of his owners or of the
ship. Abb. on Sh. 127-8. In such cases, although contracting
within the ordinary scope of his owers and duties, he is
generally responsible as well as the owner. This is the
established rule of the maritime law, introduced in favor of
commerce it has been recognized and adopted by the commercial
nations of, Europe, and is derived from the civil or Roman law.
Abbott, Ship. 90; Story, Ag. §11 6 to 123, §294; Paley, Ag. by
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Lloyd, 244; 1 Liverm. Ag. 70; Poth. Ob. n. 82; Ersk. Inst. 3,
3, 43; Dig. 4, 9, 1; Poth. Pand. lib. 14, tit. 1; 3 Summ. R.
228. See Bell's Com. 505, 6th ed; Bouv. Inst. Index, h. t.
CAPTATION, French law. The act of one who succeeds in
controlling the will of another, so as to become master of it. It
is generally taken in a bad sense.
2. Captation takes place by those demonstrations of attachment
and friendship, by those assiduous attentions, by those services
and officious little presents which are usual among friends, and
by all those means which ordinarily render us agreeable to
others. When those attentions are unattended by deceit or fraud,
they are perfectly fair, and the captation is lawful; but if,
under the mask of friendship, fraud is the object, and means are
used to deceive the person with whom you are connected, then the
captation is fraudulent, and the acts procured by the captator
are void. See Influence.
CAPTATOR, French law. The name which is sometimes given, to him
who by flattery and artifice endeavors to surprise testators, and
induce them to. give legacies or devices, or to make him some
other gift. Diet. de Jur.
CAPTION, practice. That part of a legal instrument, as a
'Commission, indictment, &c., which shows where, when, and by
what authority it was taken, found or executed. As to the forms
and requisites of captions, see 1 Murph. 281; 8 Yerg. 514; 4
Iredell, 113; 6 Miss,. 469; 1 Scam. 456; 5 How. Mis. 20; 6
Blackf. 299; 1 Hawks, 354; 1 Brev. 169.
2. In the English practice, when an in ferior court in
obedience to the writ of certiorari, returns an indictment into
the K. B. , it is annexed to the caption, then called a schedule,
and the caption concludes with stating, that " it is presented in
manner and form as appears in a certain indictment thereto
annexed, " and the caption and indictment are returned on
separate parch ments. 1 Saund. 309, n. 2. Vide Dane's Ab. Index,
h. t.
3. Caption is another name for arrest. CAPTIVE. By this term is
understood one who has been taken; it is usually applied to
prisoners of war. (q.v.) Although he bas lost his liberty, a
captive does not by his captivity lose his civil rights.
CAPTOR, war. One who has talken property from an enemy; this
term is also employed to designate one who has taken an enemy.
2. Formerly, goods taken in war were adjudged to belong to the
captor; they are now considered to vest primarily, in the state
or sovereign, and belong to the individual captors only to the
extent that the municipal laws provide.
3. Captors are responsible to the owners of the property for
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all losses and damages, when the capture is tortious and without
reasonable cause in the exercise of belligerent rights. But if
the capture is originally justifiable, the captors will not be
responsible, unless by subsequent misconduct they become
trespassers ab initio. i Rob. R. 93, 96. See 2 Gall. 374; 1
Gall. 274; 1 Pet. Adm. Dee. 116; 1 Mason, R. 14.
CAPTURE, war. The taking of property by one belligerent from
another.
2. To make a good capture of a ship, it must be subdued and
taken by an enemy in open war, or by way of reprisals, or by a
pirate, and with intent to deprive the owner of it.
3. Capture may be with intent to possess both ship and cargo,
or only to seize the goods of the enemy, or contraband goods
which are on board: The former is the capture of the ship in the
proper sense of the word; the latter is only an arrest and
detention, witbout any design to deprive the owner of it. Capture
is deemed lawful, when made by a declared enemy, lawfully
commissioned and according to the laws of war; and unlawful,
when it is against the rules established by the law of nations.
Marsh. Ins. B. 1, c. 12, s. 4.See, generally, Lee on Captures,
passim; 1 Chitty's Com. Law, 377 to 512; 2 Woddes. 435 to 457;
2 Caines' C. Err 158; 7 Johns. R. 449; 3 Caines' R. 155; 11
Johns. R. 241; 13 Johns. R.161; 14 Johns. R. 227; 3 Wheat.
183; 4 Cranch, 436 Mass. 197; Bouv. Inst. Index, h. t.
CAPUT LUPINUM, Eng. law. Having the head of a wolf. An outlawed
felon was said to have the head of a wolf, and might have been
killed by any one legally. Now, such killing would be murder. 1.
Hale, Pl. C. 497. The rules of the common law on this subject are
rauch more severe in their consequences, than the doctrine of the
civil law relating to civil death. See 1 Toull. Droit Civil, n.
280, and pp. 254-5, note 3.
CARAT, weights. A carat is a weight equal to three and
one-sixth grains, in diamonds, and the like. Jac. L. Dict. See
Weight.
CARCAN, French law. A French word, which is applied to an
instrument of punishment somewhat resembling a pillory. It
sometimes signifies the punishment itself. Biret Vocab.
CARDINAL, eccl. law. The title given to one of tho highest
dignitaries of the court of Rome. Cardinals are next to the pope
in dignity; he is elected by them and out of their body. There
are cardinal bishops, cardinal priests, and cardinal deacons. See
Fleury, Hist. Eccles. liv. xxxv. n. 17, Ii. n. 19 Thomassin, part
ii. liv. i. oh. 53, part iv. liv. i. c. 79, 80 Loiseau, Traite
des Ordres, c. 3, n. 31; Andre, Droit Canon, au mot.
CARDS, crim. law. Small square pasteboards, generally of a fine
quality, on which are painted figures of various colors, and used
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for playing different games. The playing of cards for amusement
is not forbidden, but gaming for money is unlawful. Vide Faro
bank, and Gaming.
CARGO, mar. law. The entire load of a ship or other vessel.
Abb. on Sh. Index, h. t.; 1 Dall. 197; Merl. Rep. h. t.; 2
Gill & John. 136. This term is usually applied to goods only, and
does not include human beings. 1 Phill. Ins. 185; 4 Pick. 429.
But in a more extensive and less technical sense, it includes
persons; thus we say a cargo of emigrants. See 7 Mann. Gr. 729,
744.
CARNAL KNOWLEDGE, crim. law. This phrase is used to signify a
sexual connexion; as, rape is the carnal knowledge of a woman,
&c. See Rape.
CARNALLY KNEW, pleadings. This is a technical phrase, essential
in an indictment to charge the defendant with the crime of rape;
no other word or circumlocution will answer the same purpose as
these word's. Vide Ravished, and Bac. Ab. Indictment, G 1; Com.
Dig. Indictment, G 6; 1 Hale, 632; 3 Inst. 60; Co. Litt. 137;
) 1 Chit. Cr. Law, *243. It has been doubted whether these words
were indispensible. 1 East, P. C. 448. But it would be unsafe to
omit them.
CARRIERS, contracts. There are two kinds of carriers, namely,
common carriers, (q. v.) who have been considered under another
head; and private carriers. These latter are persons who,
although they do not undertake to transport the goods of such as
choose to employ them, yet agree to carry the goods of some
particular person for hire, from one place to another.
2. In such case the carrier incurs no responsibility beyond
that of any other ordinary bailee for hire, that is to say, the
responsibility of ordinary diligence. 2 Bos. & Pull. 417; 4
Taunt. 787; Selw. N. P. 382 n.; 1 Wend. R. 272; 1 Hayw. R. 14;
2 Dana, R. 430; 6 Taunt. 577; Jones, Bailm. 121; Story on
Bailm, §495. But in Gordon v. Hutchinson, 1 Watts & Serg. 285, it
was holden that a Wagoner Who carries goods for hire,
contracts,the responsibility of a common carrier, whether
transportation be his principal and direct business, or only an
occasional and incidental employment.
3. To bring a person within the description of a common
carrier, he must exercise his business as a public employment;
he must undertake to carry goods for persons generally; and he
must hold himself out as ready to engage in the transportation of
goods for hire, as a business; not as a casual occupation pro
hac vice. 1 Salk. 249; 1 Bell's Com. 467; 1 Hayw. R. 14; 1
Wend. 272; 2, Dana, R. 430. See Bouv. Inst. Index, b. t.
CARRYING AWAY, crim. law. To complete the crime of larceny, the
thief must not only feloniously tale the thing stolen, but carry
it away. The slightest carrying away will be sufficient; thus
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to snatch a diamond from a lady's ear, which is instantly dropped
among the curls of her hair. 1 Leach, 320. To remove sheets from
a bed and carry them into an adjoining room. 1 Leach, 222 n. To
take plate from a trunk, and lay it on the floor with intent to
carry it away. Ib. And to remove a package from one part of a
wagon to another, with a view to steal it; 1 Leach, 286; have
respectively been holden to be felonies. 2 Chit. Cr. Law, 919.
Vide 3 Inst. 108, 109 1 Hale, 507; Kel. 31 Ry. & Moody, 14 Bac.
Ab. Felony, D 4 Bl. Com. 231 Hawk. c.32, s. 25. Where, however,
there has not been a complete severance of the possession, it is
not a complete carrying away. 2 East, P. C. 556; 1 Hale, 508; 2
Russ. on Cr. 96. Vide Invito Domino; Larceny; Robbery; Taking.
CART BOTE. An allowance to the tenant of wood, sufficient for
carts and other instruments of husbandry.
CARTE BLANCHE. The signature of an individual or more, on a
while. paper, with a sufficient space left above it to write a
note or other writing.
2. In the course of business, it not unfrequently occurs that
for the sake of convenience, signatures in blank are given with
authority to fill them up.. These are binding upon the parties.
But the blank must be filled up by the very person authorized. 6
Mart. L. R. 707. Vide Ch. on Bills, 702 Penna. R. 200. Vide
Blank.
CARTEL,war. An agreement between two belligerent powers for the
delivery of prisoners or deserters, and also a written challenge
to a duel.
2. Cartel ship, is a ship commissioned in time of war, to
exchange prisoners, or to carry any proposals between hostile
powers; she must carry no cargo, ammunitions, or implements of
war, except a single gun for signals. The conduct of ships of
this description cannot be too narrowly watched. The service on
which they are sent is so highly important to the interests of
humanity, that it is peculiarly incumbent on all parties to take
care that it should be conducted in such a manner as not to
become a subject of jealousy and distrust between the two
nations. 4 Rob. R. 357. Vide Merl. Rep. b. t.; Dane's Ab. c. 40,
a. 6, 7; Pet. C. C. R. 106; 3 C. Rob. 141 C. Rob. 336; 1 Dods.
R. 60.
CARTMEN. Persons who carry goods and merchandise in carts,
either for great or short distances, for hire.
2. Cartmen who undertake to carry goods for hire as a common
employment, are common carriers. Story on Bailm. §496; and see 2
Wend. 327 2 N. & M. 88; 1 Murph. 41 7; 2 Bailey, 421 2 Verm.
92; 1 M'Cord, 444; Bac. Ab. Carriers, A.
CASE practice. A contested question before a court of justicea
suit or action a cause. 9 Wheat. 738.
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CASE, remedies. This is the name of an action in very general
use, which lies where a party sues for damages for any wrong or
cause of complaint towhich covenant or trespass will not lie.
Steph. Pl. 153 Wodd. 167 Ham. N. P. 1. Vide Writ of trespass on
the case. In its most comprehensive signification, case includes
assumpsit as well as an action in form ex delicto; but when
simply mentioned, it is usually understood to mean an action in
form ex delicto. 7 T. R. 36. It is a liberal action; Burr, 906,
1011 1 Bl. Rep. 199; bailable at common law. 2 Barr 927-8;
founded on the justice and conscience of the Tiff's case, and is
in the nature of a bill in equity 3 Burr, 1353, 1357 and the
substance of a count in case is the damage assigned. 1 Bl. Rep.
200.
2. An action on the case lies to recover damages for torts not
committed with force actual or implied, or having been occasioned
by force, where the matter affected was not tangible, or where
the injury was not immediate but consequential; 11 Mass. 59, 137
1 Yeates, 586; 6 S. & R. 348; 12 S. & R. 210; 18 John. 257 19
John. 381; 6 Call, 44; 2 Dana, 378 1 Marsh. 194; 2 H. & M.
423; Harper, 113; Coxe, 339; or where the interest in the
property was only in reversion. 8 Pick. 235; 7 Conn. 3282 Green,
8 1 John. 511; 3 Hawks, 2462 Murph. 61; 2 N. H. Rep. 430. In
these several cases trespass cannot be sustained. 4 T. 11. 489 7
T. R. 9. Case is also the proper remedy for a wrongful act done
under legal process regularly issuing from a court of competent
jurisdiction. 2 Conn. 700 11 Mass. 500 6 Greenl. 421; 1 Bailey,
441, 457; 9 Conn. 141; 2 Litt. 234; 3 Conn. 5373 Gill & John.
377. Vide Regular and irregular process.
3. It will be proper to consider, 1. in what cases the action
of trespass on the case lies; 2. the pleadings 3. the evidence;
4. the judgment.
4. §1. This action lies for injuries, 1. to the absolute rights
of persons 2. to the relative rights of persons; 3. to personal
property; 4. to real property.
5. - 1. When the injury has been done to the absolute rights of
persons by an act not immediate but consequential, as in the case
of special damages Irising from a public nuisance Willes, 71 to
74 or where an incumbrance had been placed in a public street,
and the plaintiff passing there received an injury; or for a
malicious prosecution. See malicious prosecution.
6. - 2. For injuries to the relative rights, as for enticing
away an infant child, per quod servitium amisit, 4 Litt. 25; for
criminal conversation, seducing or harboring wives; debauching
daughters, but in this case the daughter must live with her
father as his servant, see Seduction; or enticing away or
harboring apprentices or servants. 1 Chit. Pl. 137 2 Chit. Plead.
313, 319. When the seduction takes place in the husband's or
father's house, he may, at his election, have trespass or case;
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6 Munf. 587; Gilmer, 33but when the injury is done in the house
of another, case is the proper remedy. 5 Greenl. 546.
7. - 3. When the injury to personal property is without force
and. not immediate, but consequential, or when the plaintiff Is
right to it is in reversion, as, where property is injured by a
third person while in the hands of a hirer; 3 Camp. 187; 2
Murph. 62; 3 Hawks, 246, case is the proper remedy. 8 East, 693;
Ld. Raym. 1399; Str. 634; 1 Chit. Pl. 138.
8. - 4. When the real property which has been injured is
corporeal, and the injury is not immediate but consequential, as
for example, putting a spout so near the plaintiff's land that
the water runs upon it; 1 Chit. Pl. 126, 141; Str. 634; or
where the plaintiff's property is only in reversion. When the
injury has been done to, incorporeal rights, as for obstructing a
private way, or disturbing a party in the use of a pew, or for
injury to a franchise, as a ferry, and the like, case is the
proper remedy. l Chit. Pl. 143.
9. - §2. The declaration in case, technically so called,
differs from a declaration in trespass, chiefly in this, that in
case, it must not, in general, state the injury to have been
committed vi et armis; 3 Conn. 64; see 2 Ham. 169; 11 Mass.
57; Coxe, 339; yet after verdict, the words " with force and
arms" will, be rejected as surplusage; Harp. 122; and it ought
not to conclude contra pacem. Com. Dig. Action on the Case, C 3.
The plea is usually the general issue, not guilty.
l0. - 3. Any matter may, in general, be given in evidence,
under the plea of not guilty, except the statute of limitations.
In cases of slander and a few other instances, however, this
cannot be done. 1 Saund. 130, n. 1; Wilies, 20. When the
plaintiff declares in case, with averments appropriate to that
form of action and the evidence shows that the injury was
trespass; or when he declares in trespass, and the evidence
proves an injury for which case will lie, and not trespass, the
defendant should be acquitted by the jury, or the plaintiff
should be nonsuited. 5 Mass. 560; 16 Mass. 451; Coxe, 339; 3
John. 468.
11. - §4. The judgment is, that the plaintiff recover a sum of
money, ascertained by a jury, for his damages sustained by the
committing of the grievances complained of in the declaration,
and costs.
12. In the civil law, an action was given in all cases of
nominate contracts, which was always of the same name. But in
innominate contracts, which had always the same consideration,
but not the same name, there could be no action of the same
denomination, but an action which arose from the fact, in factum,
or an action with a form which arose from the particular
circumstance, praescriptis verbis actio. Lec. Elem. §779. Vide,
generally, Bouv. Inst. Index, h. t.
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CASE, STATED, practice. An agreement in writing, between a
plaintiff and defendant, that the facts in dispute between them
are as there agreed upon and mentioned, 3 Whart. 143.
2. The facts being thus ascertained, it is left for the court
to decide for which party is the law. As no writ of error lies on
a judgment rendered on a case stated, Dane's Ab. c. 137, art. 4,
n. §7, it is usual in the agreement to insert a clause that the
case stated shall be considered in the nature
of special verdict.
3. In that case, a writ of error lies on the judgment which may
be rendered upon it. And a writ of error will also lie on a
judgment on a case stated, when the parties have agreed to it. 8
Serg. & Rawle, 529.
4. In another sense, by a case stated is understood a statement
of all the facts of a case, together with the names of the
witnesses, and, a detail of the documents which are to support
them. In other words, it is a brief. (q. v.)
CASH, commerce. Money on hand, which a merchant, trader or
other person has to do business with.
2. Cash price, in contracts, is the price of articles paid for
in cash, in contradistinction to the credit price. Pard. n. 85;
Chipm. Contr. 110. In common parlance, bank notes are considered
as cash; but bills receivable are not.
CASH-BOOK, Commerce, accounts. One in which a merchant or
trader enters an account of all the money, or paper moneys he
receives or pays. An entry of the same thing ought to be made
under the proper dates, in the journal. The object of the
cash-book is to afford a constant facility to ascertain the true
state of a man's cash. Pard. n. 87.
CASHIER. An officer of a moneyed institution, who is entitled
by virtue of his office to take care of the cash or money of such
institution.
2. The cashier of a bank is usually entrusted with all the
funds of the bank, its notes, bills, and other choses in action,
to be used from time to time for the ordinary and extraordinary
exigencies of the bank. He usually receives directly, or tbrough
subordinate officers, all moneys and notes of the bankdelivers up
all discounted notes and other securities, when they have been
paid draws checks to withdraw the funds of the bank where they
have been deposited; and, as the executive officer of the bank,
transacts much of the business of the institution. In general,
the bank is bound by the acts of the cashier within the scope of
his authority, expressed or implied. 1 Pet. R. 46, 70Wheat. R.
300, 361 5 Wheat. R. 326; 3 Mason's R. 505; 1 Breese, R. 45; 1
Monr. Rep. 179. But the bank is not bound by a declaration of the
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cashier, not within the scope of his authority; as when a note
is about to be discountedby the bank, he tells a person that he
will incur no risk nor responsibility by becoming an indorser
upon such note. 6 Pet. R. 51; 8 Pet. R. 12.Vide 17 Mass. R. 1
Story on Ag. §114, 115; 3 Halst. R. 1; 12 Wheat. R. 183; 1
Watts & Serg. 161.
To CASHIER, punishment. To break; to deprive a military man of
his office. Example: every officer who shall be convicted, before
a general court martial, of leaving signed a false certificate
relating to the absence of either officer or private soldier, or
relative to his daily pay, shall be, cashiered. Articles of war,
art. 14.
CASSATION, French law. A decision which emanates from the
sovereign authority, and by which a sentence or judgment in the
last resort is annulled., Merl. Rep. h. t. This jurisdiction is
now given to the Cour de Cassation.
2. This court is composed of fifty-two judges, including four
presidents, an attorney-general, and six substitutes, bearing the
title of advocates general; a chief clerk, four subordinate
clerks, and eight huissiers. Its jurisdiction extends to the
examination and superintendence of the judgments and decrees of
the inferior court, both in civil and criminal cases. It is
divided into three sections, namely, the section des requetes,
the section civile, and the section criminelle. Merl. Rep. mots
Cour de Cassation.
CASSETUR BREVE, practice. That the writ be quashed. This is the
name of a judgment sometime sentered against a plaintiff when he
cannot prosecute his writ with effect, in consequence of some
allegation on the defendant's part. The plaintiff, in order to
put an end to any further proceeding in the action,enters on the
roll cassetur breve, the effect of which is to quash his own
writ,which exonerates him from the liability to any future costs,
and allows him to sue out new process. A cassetur bill a may be
entered with like effect. 3 Bl. Com. 340; and vide 5 T. R. 634;
Gould's Plead. c. 5, §139; 3 Bouv. Inst. n. 2913-14. Vide To
quash.
CASTIGATORY, punishments. An engine used to punishwomen who
have been convicted of being common scolds it is sometimes called
the trebucket, tumbrel, ducking stool, or cucking stool. This
barbarous punishment has perhaps never been inflicted in the
United States. 12 S. & It. 225. Vide Common Scold.
CASTING VOTE, legislation. The vote given by the president or
speaker of a deliberate assembly; when the votes of the other
members are equal on both sides, the casting vote then decides
the question. Dane's Ab. h. t.
CASTRATION, crim. law. The act of gelding. When this act is
maliciously performed upon a man, it is a mayhem, and punishable
as such, although the sufferer consented to it.
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2. By the ancient law of England this crime was punished by
retaliation, membrum pro membro. 3 Inst. 118. It is punished in
the United States generally by fine and imprisonment. The civil
law punished it with death. Dig. 48, 8, 4, 2. For the French law,
vide Code Penal, art. 316. 3. The consequences ofcastration, when
complete, are impotence and sterility. 1 Beck's Med. Jur. 72.
CASUPROVISO, practice. A writ of entry given by the statute of
Gloucester, c. 7, when a tenant in dower aliens in fee or for
life. It might have been brought by the reversioner against the
alienee. This, is perhaps an obsolete remedy, having yielded to
the writ of ejectment. F. N. B. 205 Dane's Ab. Index, h. t.
CASUAL. What happens fortuitously what is accidental as, the
casual revenue's of the government, are those which are
contingeut or uncertain.
CASUAL EJECTOR, pratice, ejectment. A person, supposed to come
upon-land casually, (although usually by previous agreement,)
who turns out the lessee of the person claiming the possession
against the actual tenant or occupier of the land. 3 Bl. Com.
201, 202.
2. Originally, in order to try the right by ejectment, Several
things were necessary to be made out before the court first, a
title to the land, in question, upon which the owner was to make
a formal entry; and being so in possession he executed a lease
to some third person or lessee, leaving him in possession then
the prior tenant or some other person, called the casual ejector,
either by accident or by agreement beforehand, came upon the land
and turned him out, and for this ouster or turning out, the
action was brought. But these formalities are now dispensed with,
and the trial relates merely to the title, the defendant being
bound to acknowledge the lease, entry, and ouster. 3 Bl. Com.
202;.Dane's Ab. Index, h. t.
CASUS FOEDORIS. When two nations have formed a treaty of
alliance, in anticipation of a war or other difficulty with
another, and it is required to determine the case in which the
parties must act in consequence of the alliance, this is called
the casus foederis, or case of alliance. Vattel, liv. 3, c. 6,
§88.
CASUS FORTUITUS. A fortuitous case; an uncontrollable accident
an act of God. See Act of God; Cas fortuit; Fortuitous event.
CASUS OMISSUS. An omitted case.
2. When a statute or an instrument of writing undertakes to
foresee and to provide for certain contingencies, and through
mistake, or some other cause, a case remains to be provided for,
it is said to be a casus omissus.For example, when a statute
provides for the descent of intestates estates, and omits a case,
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the estate descends as it did before the statute, whenever that,
case occurs, although it appear to be within the general scope
and intent of the statute. 2 Binn. R. 279.
3. When there has been a casus omissus in a statute, the
subject is ruled by the common law: casus omissuset oblivioni
datus dispositioni juris communis relinquitur. 5 Co. 38. Vide
Dig. 38, 1, 44 and 55 Id. 38, 2, 10; Code, 6, 52, 21 and 30.
CATCHING BARGAIN, contracts, fraud. An agreement made with an
heir expectant, for the purchase of his expectancy, at an
inadequate price.
2. In such case, the heir is, in general, entitled to relief in
equity, and way have the contract rescinded upon terms of
redemption. 1 Vern. 167; 2 Cox, 80; 2 Cli. Ca. 136; 2 Vern.,
121; 2 Freem. 111; 2 Vent. 329; 2 Rep. in Ch. 396; 1 P.Wms.
312; 3 PWms. 290, 293, n.; 1Cro. C. C. 7; 2 Atk. 133; 2
Swanst. 147, and the cases cited in the note; 1 Fonb.140 1 Supp.
to Ves. Jr. 66 Id. 361 1 Vern. 320, n. It has been said that all
persons dealing for a reversionary interest are subject to this
rule, but it may be doubted whether the course of decisions
authorizes so extensive a conclusion and whether, in order to
constitute a title to relief, the reversioner must not combine
the character of heir. 2 Swanst. 148, n. Vide 1 Ch. Pr. 112, 113,
n., 458, 826, 838, 839. A mere hard bargain is not sufficient
ground for relief.
3. The French law is in unison with these principles. An
agreement, which has for its object the succession of aman yet
alive, is generally void.Merl. Rep. mots Succession Future. Vide
also Dig. 14,6, and Lesion.
CATCHPOLE, officer. A name formerly given to a sheriff's
deputy, or to a constable, or other officer whose duty it is to
arrest persons. He was a sort of serjeant. The word is not now in
use as an official designation. Minshew ad verb.
CAUSA MATRIMONII PRAELOCUTI, Engl. law. An obsolete writ, which
lies when a woman gives land to a man in fee simple, or for a
less estate, to the intent that he should marry her and he
refuses upon request. New. Nat. Bre. 455.
CAUSE, civ. law. This word has two meanings. 1. It signifies
the delivery of the thing, or the accomplishment of the act
which is the object of a convention. Datio vel factum, quibus ab
una parte conventio, impleri caepta est. 6 Toull. n. 13, 166. 2.
it is the consideration or motive formakinga contract. An
obligation without a cause, or with a false or unlawful cause,
has no effect; but an engagement is not the less valid, though
the cause be not expressed. The cause is illicit, when it is
forbidden by law, when it is contra bones mores, or public order.
Dig. 2, 14, 7, 4; Civ. Code of Lo. a. 1887-1894 Code Civil, liv.
3, c. 2, s. 4, art. 1131-1133; Toull. liv. 3, tit. 3, c. 2, s.
4.
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CAUSE, contra torts, crim. That which produces an effect.
2. In considering a contract, an injury, or a crime, the law
for many purposes looks to the immediate, and not to any remote
cause. Bac. Max. Reg. 1; Bac. Ab. Damages, E; Sid. 433; 2
Taunt. 314. If the cause be lawful, the party will be justified;
if unlawful, he will be condemned. The following is an example in
criminal law of an immediate and remote cause. If Peter, of
malice prepense, should discharge a pistol at Paul, and miss him,
and then cast away the pistol and fly and, being pursued by Paul,
he turn round, and kill him with a dagger, the law considers the
first as the impulsive cause, and Peter would be guilty of
murder. But if Peter, with his dagger drawn, had fallen down, and
Paul in his haste had fallen upon it and killed himself, the
cause of Paul's death would have been too remote to charge Peter
as the murderer. Id.
3. In cases of insurance, the general rule is that the
immediate and not the remote cause of the loss is to be
considered; causa proximo non remota spedatur. This rule may, in
some cases, apply to carriers. Story, Bailm. §515.
4. For the reach of contracts, the contractor is liable for the
immediate effects of such breach, but not for any remote cause,
as the failure of a party who was to receive money, and did not
receive it, in consequence of which he was compelled to stop
payment. 1 Brock. Cir. C. Rep. 103. See Remote; and also Domat,
liv. 3, t. 5, s. 2, n. 4; Toull. liv. 3, n. 286; 6 Bing. R.
716; 6 Ves. 496; Pal. Ag. by Lloyd, 10; Story, Ag. §200; 3
Sumn. R. 38.
CAUSE, pleading.The reason; the motive.
2. In a replication de injuria, for example, the plaintiff
alleges that the defendant of his own wrong, and without the
cause by him in his plea alleged, did, &c. The word cause here
means without the matter of excuse alleged, and though in the
singular number, it puts in issue all the facts in the plea,
which constitute but one cause. 8 Co. 67; 11 East, 451; 1 Chit.
Pl. 585.
CAUSE, practice. A Contested question before a court of
justice; it is a Suit or action. Causes are civil or criminal.
Wood's Civ. Law, 302; Code, 2, 416.
20CAUSE OF ACTION. By this phrase is understood the right to
bring an action, which implies, that there is some person in
existence who can assert, and also a person who can lawfully be
sued; for example, where the payee of a bill was dead at the
time when it fell due, it was held the cause of action did not
accrue, and consequently the statute of limitations did not begin
to run until letters of administration had been obtained by some
one. 4 Bing. 686.
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2. There is no cause of action till the claimant can legally
sue, therefore the statute of limitations does not run from the
making of a promise, if it were to perform something at a future
time, but only from the expiration of that time, though, when the
obligor promises to pay on demand, or generally, without
specifying day, he may be sued immediately, and then the cause of
action has accrued. 5 Bar. & Cr. 860; 8 Dowl. & R. 346.When a
wrong has been committed, or a breach of duty has occurred, the
cause of action has accrued, though the claimant may be ignorant
of it. 3 Barn. & Ald. 288, 626 5 B. & C. 259; 4 C. & P. 127.
CAUTIO PRO EXPENSIS. Security for costs or expenses.
2. This term is used among the civilians, Nov. 112, c. 2, and
generally on the continent of Europe. In nearly all the countries
of Europe, a foreign plaintiff, whether resident there or not, is
required to give caution pro expenses; that is, security for
costs. In some states this requisition is modified, and, when
such plaintiff has real estate, or a commercial or manufacturing
establishent within the state, he is not required to give such
caution. Faelix, Droit. Intern. Prive, n. 106.
CAUTION. A term of the Roman civil law, which is used in
various senses. It signifies, sometimes, security, or security
promised. Generally every writing is called cautio, a caution by
which any object is provided for. Vicat, ad verb. In the common
law a distinction is made between a contract and the security.
The contract may be good and the security void. The contract may
be divisible, and the security entire and indivisible. 2 Burr,
1082. The securities or cautions judicially required of the
defendant, are, judicio sisti, to attend and appear during the
pendency of the suit; de rato, to confirm the acts of his
attorney or proctor; judicium solvi, to pay the sum adjudged
against him. Coop. Just. 647; Hall's Admiralty Practice, 12; 2
Brown, Civ. Law, 356.
CAUTION, TURATORY, Scotch law. Juratory caution is that which a
suspender swears is the best he can offer in order to obtain a
suspension. Where the suspender cannot, from his low or suspected
circumstances, procure unquestionable security, juratory caution
is admitted. Ersk. Pr. L. Scot. 4, 3, 6.
CAUTIONER, Scotch law, contracts. One who becomes bound as
caution or surety for another, for the performance of any
obligation or contract contained in a deed.
CAVEAT, practice. That hebeware. Caveat is the name of a notice
given by a party having an interest, to some officer, not to do
an act, till the party giving the notice shall have been heard;
as, a caveat to the register of wills, or judge of probate, not
to permit a will to be proved, or not to grant letters of
administration, until the party shall have been heard. A caveat
is also frequently made to prevent a patent for inventions being
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issued. 1 Bouv. Inst. 71, 534; 1 Burn's Ecc. Law, 19, 263; Bac.
Abr. Executors and Administrators, E 8; 3 Bl. Com. 246;
Proctor's Pract. 68; 3 Bin. Rep. 314; 1 Siderf. 371 Poph. 133;
Godolph. Orph. Leg. 258; 2 Brownl. 119; 2 Fonbl. Eq. book 4,
pt. 2, c. 1, §3; Ayl. Parer. 145 Nelson's Ab. h. t.; Dane's Ab.
c. 223, a. 15, §2, and a. 8, §22. See 2 Chit. Pr. 502, note b,
for a form.
CAVEAT EMPTOR. Let the purchaser take heed; that is, let him
see to it, that the title he is buying is good. This is a rule of
the common law, applicable to the sale and purchase of lands and
other real estate. If the purchaser pay the consideration money,
he cannot, as a general rule, recover it back after the deed has
been executed; except in cases of fraud, or by force of some
covenant in the deed which has been broken. The purchaser,if he
fears a defect of title, has it in his power to protect himself
by proper covenants, and if he fails to do so, the law provides
for him no remedy. Cro. Jac. 197; 1 Salk.
211 Doug. 630, 654; 1 Serg. & R. 52, 53 , 445. This rule is
discussed with ability in Rawle on Covenants for Title, p. 458,
et seq. c. 13, and the leading authorities collected. See also 2
Kent, Com. Lect. 39, p. 478; 2 Bl. Com. 451; 1 Stor , Eq. §212
6 Ves. 678; 10 Ves. 505; 3 Cranch, 270; 2 Day, R. 128; Sugd.
Vend. 221 1 Bouv. Inst. n. 954-5.
2. This rule has been severely assailed, as being the
instrument of falsehood and fraud; but it is too well
established to be disregarded. Coop., Just. 611, n. See 8 Watts,
308, 309.
CAVIL. Sophism, subtlety. Cavilis a captious argument, by which
a conclusion evidently false, is drawn from a principle
evidently true: Ea est natura cavillationis ut ab evidenter
veris, per brevissimas mutationes disputatio, ad ea quce
evidentur falsa sunt perducatur. Dig. 60, 16, 177 et 233; Id.
17, 65; Id. 33, 2, 88 .
CAESARIAN OPERATION, med. juris. An incision made through the
parietes of the abdomen and uterus to extract the foetus. It is
said that Julius Caesar was born in this manner. When the child
is cut out after the death of the mother, his coming into being
in this way confers on other persons none of the rights to which
they would have been entitled if he had been born, in the usual
course of nature, during her life. For example, his father would
not be tenant by the curtesy; for to create that title, it ought
to begin by the birth of issue arive, and be consummated by the
death of the wife. 8 Co. Rep. 35; 2 Bl. Com. 128 Co. Litt. 29
b.; 1 Beck's Med. Jur. 264 Coop. Med. Jur. 7; 1 Fodere, Med.
Leg. §334. The rule of the civil law on this subject will be
found in Dig. lib. 50, t. 16, 1. 132 et 141; lib. 5, t. 2, 1. 6;
lib. 28, t. 2, 1. 12.
C2ETERORUM. The name of a kind of administration, which, after
an administration has been granted for a limited purpose, is
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granted for the rest of the estate. 1 Will. on Ex. 357; 2 Hagg.
62; 4 Hagg. Eccl. R. 382, 386; 4 Mann. & Gr. 398. For example,
where a wife had a right to devise or bequeath certain stock, and
she made a will of the same, but there were accumulations that
did not pass, the husband might take out letters of
administration caeterorum. 4 Mann. & Grang.398;1 Curteis, 286.
TO CEDE, civil law. To assign; to transfer; as, France ceded
Louisiana to the United States.
CEDENT, civil law, Scotch law. An assignor. The term is usually
applied to
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the assignor of a chose in action. Kames on Eq. 43.
CELEBRATION, contracts. This word is usually applied, in law,
to the celebration of marriage, which is the solemn act by which
a man and woman take each other for husband and wife, conformably
to the rules prescribed by law. Diet. de Juris. h. t.
CELL. A small room in a prison. See Dungeon.
CENOTAPH. An empty tomb. Dig. 11, 7, 42.
CENSUS. An enumeration of the inhabitants of a country.
2. For the purpose of keeping the reeresentation of the several
states in congress equal, the constitution provides, that "
representatives and direct taxes shall be apportioned among the
several states, which may be included in this Union, according to
their respective numbers; which shall be determined by adding to
the whole number of free persons, including those bound to
service for a term of years, and excluding Idians not taxed,
three-fifths of all other persons. The actual enumeration shall
be made within three years after the first meeting of the
congress of the United States, and within every subsequent term
of ten years, in such a manner as they shall by law direct." Art.
1, s. 2; vide 1 Story, L. U. S., 73, 722, 751; 2 Id. 1134,
1139, 1169, 1194; 3 Id. 1776; 4 Sharsw. continuation, 2179.
CENT, money. A copper coin of the United States of the value of
ten mills; ten of them are equal to a dime, and one hundred, to
one dollar. Each cent is required to contain one hundred and
sixty-eight grains. Act of January 18th, 1837, 4 Sharsw. cont. of
Story',s L. U. S. 2524.
CENTIME. The name of a French money; the one hundredth part of
a franc.
CENTRAL. Relating to the centre, or placed in the centre; as,
the central courts of the United States, are those located in the
city of Washington, whose jurisdiction extends over the whole
country. These are, first, the Senate of the United States, when
organized to try impeachments; secondly, the Supreme Court of
the United States.
2. The government of the United States is the central
government.
CENTUMVIRI, civil law. the citizens of Rome were distributed
into thirty-five tribes, and three persons out of each tribe were
elected judges, who were called centumviri, although they were
one hundred and five in number. They were distributed into four
different tribunals, but in certain causes called centumvirales
causas, the judgments of the four tribunals were necessary.
Vicat,.ad verb.; 3 Bl. Com. 315.
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CENTURY, civil law. One hundred. The Roman people were
dividedinto centu ries. In England they were divided into
hundreds. Vide Hundred. Century also
means one hundred years.
CEPI. A Latin word signifying I have taken. Cepicorpus, I have
taken the body; cepiand B. B., I have taken the body and
discharged him on bail bond; cepi corpus et est in custodia, I
have taken the body and it is in custody; cepi corpus, et est
languidus, I have taken the body of, &c. and he is sick. These
are some of the various returns made by the sheriff to a writ of
capias.
CEPI CORPUS, practice. The return which the sheriff, or
otherproper officer, makes when he has arrested a defendant by
virtue of a capias. 3 Bouv. Inst. n. 2804. See Capias. F. N. B.
26.
CEPIT. Took. This is a technical word, which cannot be supplied
by any other in an indictment for larceny. The charge against the
defendant must be that he took the thing stolen with a felonious
design. Bac. Ab. Indictment, G 1.
CEPIT ET ABDUXIT. He took and led away. These words are applied
to cases of trespass or larceny, where the defendant took a
living chattel, and led it away. It is used in contradistinction
to took and carried away, cepit et asportavit. (q. v.)
CEPIT ET ASPORTAVIT. Took and carried away. (q. v.)
CEPIT IN ALIO LOCO, pleadings. He took in another place. This
is a plea in replevin, by which the defendant alleges, that he
took the thing replevied in another place than that mentioned in
the plaintiff's declaration. 1 Chit. Pl. 490, 4 Bouv. Inst. n.
3569 2 Chit. Pl. 558; Rast. 554, 555; Clift. 636 Willes, R.
475; Tidd's App. 686.
CERTAINTY, UNCERTAINTY, contracts. In matters of obligation, a
thing is certain, when its essence, quality, and quantity, are
described, distinctly set forth, Dig. 12, 1, 6. It is uncertain,
when the description is not that of one individual object, but
designates only the kind. Louis. Code, art. 3522, No. 8 5 Co.
121. Certainty is the mother of repose, and therefore the law
aims at certainty. 1 Dick. 245. Act of the 27th of July, 1789,
ii. 2, 1 Story's Laws, 6. His compensation for his servicer,
shall not exceed two thousand dollars per annum. Gordon's Dig.
art. 211.
2. If a contract be so vague in its terms, that its meaning
cannot be certainly collected, and the statute of frauds preclude
the admissibility of parol evidence to clear up the difficulty;
5 Barn. & Cr. 588; S. C. 12 Eng. Com. L. R. 827; or parol
evidence cannot supply the defect, then neither at law, nor in
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equity, can effect be given to it. 1 Russ. & M. 116; 1 Ch. Pr.
123.
3. It is a maxim of law, that, that is certain which may be
made certain; certum est quod certum reddi potest Co. Litt. 43;
for example, when a man sells the oil he has in his store at so
much a gallon, although there is uncertainty as to the quantity
of oil, yet inasmuch as it can be ascertained, the maxim applies,
and the sale is good. Vide generaly, Story, Eq. El. §240 to 256;
Mitf. Pl. by Jeremy, 41; Coop. Eq. Pl. 5; Wigr. on Disc. 77.
CERTAINTY, pleading. By certainty is understood a clear and
distinct statement of the facts which constitute the cause of
action, or ground of defence, so that they may be understood by
the party who is to answer them, by the jury who are to ascertain
the truth of the allegations, and by the court who are to give
the judgment. Cowp. 682; Co. Litt. 308; 2 Bos. & Pull. 267; 13
East, R. 107; Com. Dig. Pleader, C 17; Hob. 295. Certainty has
been stated by Lord Coke, Co. Litt. 303, a, to be of three sorts
namely, 1. certainty to a common intent 2. to a certain intent in
general; and, 3. to a certain intent in every particular. In the
case of Dovaston.v. Paine Buller, J. said he remembered to have
heard Mr. Justice Ashton treat these distinctions as a jargon of
words without meaning; 2 H. Bl. 530. They have, however, long
been made, and ought not altogether to be departed from.
2. - 1. Certainty to a common intent is simply a rule of
construction. It occurs when words are used which will bear a
natural sense, and also an artificial one, or one to be made out
by argument or inference. Upon the ground of this rule the
natural sense of words is adopted, without addition. 2 H. Bl.
530.
3. - 2. Certainty to, a certain intent in general, is a greater
degree of certainty than the last, and means what upon a fair and
reasonable construction may be called certain, without recurring
to possible facts which do not appear; 9 Johns. R. 317; and is
what is required in declarations, replications, and indictments,
in the charge or accusation, and in returns to writs of mandamus.
See 1 Saund. 49, n. 1; 1 Dougl. 159; 2 Johns. Cas. 339; Cowp.
682; 2 Mass. R. 363 by some of which authorities, it would
seem, certainty to a common intent is sufficient in a
declaration.
4. - 3. The third degree of certainty, is that which precludes
all argument, inference, or presumption against the party,
pleading, and is that technical accuracy which is not liable to
the most subtle and scrupulous objections, so that it is not
merely a rule of construction, but of addition; for where this
certainty is necessary, the party must not only state the facts
of his case in the most precise way, but add to them such as show
that they are not to be controverted, and, as it were, anticipate
the case of his adversary. Lawes on Pl. 54, 55. See 1 Chitty on
Pl. 235 to 241.
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CERTIFICATE, practice. A writing made in any court, and
properly authenticated, to give notice to another court of
anything done therein; or it is a writing by which an officer or
other person bears testimony that a fact has or has not taken
place.
2. There are two kinds of certificates; those required by the
law, and those which are merely voluntary. Of the first kind are
certificates given to an insolvent of his discharge, and those
given to aliens, that they have been naturalized. Voluntary
certificates are those which are not required by law, but which
are given of the mere motion of the party. The former are
evidence of the facts therein mentioned, while the latter are not
entitled to any credit, because the facts certified, may be
proved in the usual way under the solemnity of an oath or
affirmation. 2 Com. Dig. 306; Ayl. Parerg. 157; Greenl. Ev.
§498.
CERTIFICATE, JUDGE'S, English practice. The judge who tries the
cause is authorized by several statutes in certain cases to
certify, so as to decide when the party or parties shall or shall
not be entitled to costs. It is of great importance in many
cases, that these certificates should be obtained at the time of
trial. See 3 Camp. R. 316; 5 B. & A. 796; Tidd's Pr. 879; 3
Ch. Pr.
458, 486.
2. The Lord Chancellor often requires the opinion of the judges
upon a question of law; to obtain this, a case is trained,
containing the admissions on both sides, and upon these the legal
question is stated; the case is then submitted to the judges,
who, after hearing counsel, transmit to the chancellor their
opinion. This opinion, signed by the judges of the court, is
called their certificate. See 3 Bl. Com. 453.
CERTIFICATE, ATTORNEY'S, Practice, English law. By statute 37
Geo. III., c. 90, s. 26, 28, attorneys are required to deliver to
the commissioners of stamp duties, a paper or note-in writing,
containing the name and usual place of residence of such person,
and thereupon, on paying certain duties, such person is entitled
to a certificate attesting the payment of such duties, which must
be renewed yearly. And by the 30th section, an attorney is liable
to the penalty of fifty pounds for practising without.
CERTIFICATION or CERTIFICATE OF ASSISE. A term used in the old
English law, applicable to a writ granted for the reexamination
or re-trial of a matter passed by assise before justices. F. N.
B. 181 3 Bl. Com. 389. The summary motion for a new trial has
entirely superseded the use of this writ, which was one of the
means devised by the judges to prevent a resort to the remedy by
attaint for a wrong verdict.
CERTIORARI, practice. To be certified of; to be informed of.
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This is the name of a writ issued from a superior court directed
to one of inferior jurisdiction, commanding the latter to certify
and return to the former, the record in the particular case. Bac.
Ab. h. t.; 4 Vin. Ab. 330; Nels. Ab. h. t.; Dane's Ab. Index,
h. t.; 3 Penna. R. 24. A certiorari differs from a writ of
error. There is a distinction also between a hab. corp. and a
certiorari. The certiorari removes the cause; the hab. corp.
only supersedes the proceedings in below. 2 Lord Ray. 1102.
2. By the common law, a supreme court has power to review the
proceedings of all inferior tribunals, and to pass upon their
jurisdiction and decisions on questions of law. But in general,
the determination of such inferior courts on questions of fact
are conclusive, and cannot be reversed on certiorari, unless some
statute confers the power on such supreme court. 6 Wend. 564; 10
Pick. 358; 4 Halst. 209. When any error has occurred in the
proceedings of the court below, different from the course of the
common law, in any stage of the cause, either civil or criminal
cases, the writ of certiorari is the only remedy to correct such
error, unless some other statutory remedy has been given. 5 Binn.
27; 1 Gill & John. 196; 2 Mass. R. 245; 11 Mass. R. 466; 2
Virg. Cas. 270; 3 Halst. 123; 3 Pick. 194 4 Hayw. 100; 2
Greenl. 165; 8 Greenl. 293. A certiorari, for example, is the
correct process to remove the proceedings of a court of sessions,
or of county commissioners in laying out highways. 2 Binn. 250 2
Mass. 249; 7 Mass. 158; 8 Pick. 440 13 Pick. 195; 1 Overt.
131; 2
Overt. 109; 2 Pen. 1038; 8 Verm. 271 3 Ham. 383; 2 Caines,
179.
3. Sometimes the writ of certiorari is used as auxiliary
process, in order to obtain a full return to some other process.
When, for example, the record of an inferior court is brought
before a superior court by appeal, writ of error, or other lawful
mode, and there is a manifest defect, or a suggestion of
diminution, a certiorari is awarded requiring a perfect
transcript and all papers. 3 Dall. R. 413; 3 John. R. 23; 7
Cranch, R. 288; 2 South. R. 270, 551; 1 Blackf. R. 32; 9
Wheat. R. 526; 7 Halst. R. 85; 3 Dev. R. 117; 1 Dev. & Bat.
382; 11 Mass. 414; 2 Munf. R. 229; 2 Cowen, R. 38. Vide Bouv.
Inst. Index, h. t.
CESSET EXECUTIO. The staying of an execution.
2. When a judgment has been entered, there is sometimes, by the
agreement of the parties, a cesset executio for a period of time
fixed upon and when the defendant enters security for the amount
of the judgment, there is a cesset executio until the time
allowed by law has expired.
CESSET PROCESSUS, practice. An entry made on the record that
there be a stay of the procas or proceedings.
2. This is made in cases where the plaintiff has become
insolvent after action brought. 2 Dougl. 627.
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CESSAVIT, Eng. law. An obsolete writ, which could formerly have
been sued out when the defendant had for two years ceased or
neglected to perform such service or to pay such rent as he was
bound to do by his tenure, and had not upon his lands sufficient
goods or cbattels to be distrained. F. N. B. 208.
CESSIO BONORUM, civil law. The relinquishment which a debtor
made of his property for the benefit of his creditors.
2. This exempted the debtor from imprisonment, not, however,
without leaving an ignominious stain on his reputation. Dig. 2,
4, 25; Id. 48, 19, 1; Nov. 4, c. 3, and Nov. 135. By the latter
Novel, an honest unfortunate debtor might be discharged, by
simply affirming that he was insolvent, without having recourse
to the benefit of cession. By the cession the creditors acquired
title to all the property of the insolvent debtor.
3. The cession discharged the debtor only to the extent of the
property ceded, and he remained responsible for the difference.
Dom. Lois Civ. liv. 4, tit. 5., s. 1, n. 2. Vide, for the law of
Louisiana, Code, art. 2166, et seq. 2 M. R. 112; 2 L. R. 354;
11 L. R. 531; 5 N. S. 299; 2 L. R. 39; 2 N. S. 108; 3 M. R.
232; 4 Wheat. 122; and Abandonment.
CESSION, contracts. Yielding up; release.
2. France ceded Louisiana to the United States, by the treaty
of Paris, of April 30, 1803 Spain made a cession of East and West
Florida, by the treaty of February 22, 1819. Cessions have been
severally made of a part of their territory, by New York,
Virginia, Massachusetts, Connecticut) South Carolina, North
Carolina, and Georgia. Vide Gord. Dig. art. 2236 to 2250.
CESSION, civil law. The, act by which a party assigns or
transfers property to a other; an assignment.
CESSION, eccl. law. When an ecclesiastic is created bishop, or
when a parson takes another benefice, without dispensation, the
first benefice becomes void by a legal cession, or surrender.
Cowel, h. t.
CESTUI. He. This word is frequently used in composition as,
cestui que trust, cestui que vie, &c.
CESTUI QUE TRUST, A barbarous phrase, to signify the
beneficiary of an estate held in trust. He for whose benefit
another person is enfeoffed or seised of land or tenements, or is
possessed of personal property. The cestui que trust is entitled
to receive the rents and profits of the land; he may direct such
conveyances, consistent with the trust, deed or will, as he shall
choose, and the trustee (q. v.) is bound to execute them: he may
defend his title in the name of the trustee. 1 Cruise, Dig. tit.
12, c. 4, s. 4; vide Vin. Ab. Trust, U, W, X, and Y 1 Vern. 14;
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Dane's Ab. Index, h. t.: 1 Story, Eq. Jur. §321, note 1; Bouv.
Inst. Index, h. t.
CESTUI QUE VIE. He for whose life land is holden by another
person; the latter is called tenant per auter vie, or tenant for
another's life. Vide Dane's Ab. Index, h. t.
CESTUI QUE USE. He to whose use land is granted to another
person the latter is called the terre-tenant, having in himself
the legal property and possession; yet not to his own use, but
to dispose of it according to the directions of the cestui que
use, and to suffer him to take the profits. Vide Bac. Read. on
Stat. of Uses, 303, 309, 310. 335, 349; 7 Com. Dig. 593.
CHAFEWAX, Eng, law. An officer in chancery who fits the wax for
sealing, to the writs, commissions and other. instruments then
made to be issued out. He is probably so called because he warms
(chaufe) the wax.
CHAFFERS. Anciently signified wares and merchandise; hence the
word chaffering, which is yet used for buying and selling, or
beating down the price of an article. The word is used in stat. 3
Ed. III. c. 4.
CHAIRMAN. The presiding officer of a committee; as, chairman
of the committee of ways and means. The person selected to
preside over a popular meeting, is also called a chairman or
moderator.
CHALDRON. A measure of capacity, equal to fifty-eight and
two-third cubic feet nearly. Vide Measure.
CHALLENGE. This word has several significations. 1. It is an
exception or objection to a juror. 2. A call by one person upon
another to a single combat, which is said to be a challenge to
fight.
CHALLENGE, criminal law. A request by one person to another, to
fight a duel.
2. It is a high offence at common law, and indictable, as
tending to a breach of the peace. It may be in writing or
verbally. Vide Hawk. P. C. b. 1, c. 63, s. 3; 6 East, R. 464; 8
East, R. 581; 1 Dana, R. 524; 1 South.. R. 40; 3 Wheel. Cr. C.
245 3 Rogers' Rec. 133; 2 M'Cord, R. 334 1 Hawks. R. 487; 1
Const. R. 107. He who carries a challenge is also punishable by
indictment. In most of the states, this barbarous practice is
punishable by special laws.
3. In most of the civilized nations challenging another to
fight. is a crime, as calculated to destroy the public peace;
and those who partake in the offence are generally liable to
punishment. In Spain it is punished by loss of offices, rents,
and horrors received from the king, and the delinquent is
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incapable to hold them in future. Aso & Man. Inst. B. 2, t. 19,
c. 2, §6. See, generally, 6 J. J. @larsh. 120; 1 Munf. 468; 1
Russ. on Cr. 275; 6 J. J. Marsh. 1 19; Coust. Rep. 10 7; Joy
on Chal. passim.
CHALLENGE, practice. An exception made to jurors who are to
pass on a trial;
to a judge; or to a sheriff.
2. It will be proper here to consider, 1. the several kinds of
challenges; 2. by whom they are to be made; 3. the time and
manner of making them.
3. - §1. The several kinds of challenges may be divided into
those which are peremptory, and those which are for cause. 1.
Peremptory challenges are those
'which are made without assigning any reason, and which the court
must allow. The number of these which the prisoner was allowed at
common law, in all cases of felony, was thirty-five, or one under
three full juries. This is regulated by the local statutes of the
different states, and the number except in capital cases, has
been probably reduced.
4. - 2. Challenges for cause are to the array or to the polls.
1. A challenge to the array is made on account of some defect in
making the return to the venire, and is at once an objection to
all the jurors in the panel. It is either a principal challenge,
that is, one founded on some manifest partiality, or error
committed in selecting, depositing, drawing or summoning the
jurors, by not pursuing the directions of the acts of the
legislature; or a challenge for favor.
5. - 2. A challenge to the polls is objection made separately
to each juror as he is about to be sworn. Challenges to the
polls, like those to the array, are either principal or to the
favor.
6. First, principal challenges may be made on various grounds:
1st. propter defectum, on account of some personal objection, as
alienage, infancy, old age, or the want of those qualifications
required by legislative enactment. 2d. Propter affectum, because
of some presumed or actual partiality in the juryman who is made
the subject of the objection; on this ground a juror may be
objected to, if he is related to either within the ninth degree,
or is so connected by affinity; this is supposed to bias the
juror's mind, and is only a presumption of partiality. Coxe, 446;
6 Greenl. 307; 3 Day, 491. A juror who has conscientious
scruples in finding a verdict in a capital case, may be
challenged. 1 Bald. 78. Much stronger is the reason for this
challenge, where the juryman has expressed his wishes as to the
result of the trial, or his opinion of the guilt or innocence of
the defendant. 4 Harg. St. Tr. 748; Hawk. b. 2, c. 43, s. 28;
Bac. Ab. Juries, E 5. And the smallest degree of interest in the
matter to be tried is a decisive objection against a juror. 1
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Bay, 229; 8 S. & R. 444; 2 Tyler, 401. But see 5 Mass. 90. 3d.
The third ground of principal challenge to the polls, is propter
delictum, or the legal incompetency of the juror on the ground of
infamy. The court, when satisfied from their own examination,
decide as to the principal challenges to the polls, without any
further investigation and there is no occasion for the
appointment of triers. Co. Litt. 157, b; Bac. Ab. Juries, E 12;
8 Watts. R. 304.
7. - Secondly. Challenges to the poll for favor may be made,
when, although the juror is not so evidently partial that his
supposed bias will be sufficient to authorize. a principal
challenge, yet there are reasonable grounds to suspect that he
will act under some undue influence or prejudice. The causes for
such cballenge are manifestly very numerous, and depend, on a
variety of circumstances. The fact to be ascertained is, whether
the juryman is altogether indifferent as he stands unsworn,
because, even unconsciously to himself, be may be swayed to one
side. The line whicb separates the causes for principal
challenges, and for challenge to the favor, is not very
distinctly marked. That the juror has acted as godfather to the
child of the prosecutor or defendant, is cause for a principal
cballenge; Co. Litt. 157, a; while the fact that the party and
the juryman are fellow servants, and that the latter has been
entertained at the house of the former, is only cause for
challenge to the favor. Co. Litt. 147; Bac. Ab. Juries, E 5.
Challenges to the favor are not decided upon by the court, but
are settled by triers. (q. v.)
8. - §2. The challenges may be made by the government, or those
who represent it, or by the defendant, in criminal cases; or
they may be made by either party in civil cases.
9. - §3. As to the time of making the challenge, it is to be
observed that it is a general rule, that no challenge can be made
either to the array or to the polls, until a full jury have made
their appearance, because if that should be the case, the issue
will remain pro defectu juratorum; and on this account, the
party who intends to challenge the array, may, under such a
contingency, pray a tales to complete the number, and then object
to the panel. The proper time, of challenging, is between the
appearance and the swearing of the jurors. The order of making
challenges is to the array first, and should not that be
supported, then to the polls; challenging any one juror, waives
the right of challenging the array. Co. Litt. 158, a; Bac. Ab.
Juries, E 11. The proper manner of making the challenge, is to
state all the objections against the jurors at one time; and the
party will not be allowed to make a second objection to the same
juror, when the first has been over-ruled. But when a juror has
been challenged on one side, and found indifferent, he may still
be challenged on the other. When the juror has been cliallenged
for cause, and been pronounced impartial, he may still be
challenged peremptorily. 6 T. R. 531; 4 Bl. Com. 356; Hawk. b.
2, c. 46, s. 10.
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10. As to the mode of making the challenge, the rule is, that a
challenge to the array must be in writing; but when it is only
to a single individual, the words " I challenge him " are
sufficient in a civil case, or on the part of the defendant, in a
criminal case when the challenge is made for the prosecution, the
attorney-general says, We challenge him." 4 Harg. St. Tr. 740 Tr.
per Pais, 172; and see Cro. C. 105; 2 Lil. Entr. 472; 10
Wentw. 474; 1 Chit. Cr. Law, 533 to 551.
11. Interest forms the only ground at common law for
challenging a judge. It is no ground of challenge that he has
given an opinion in the case before. 4 Bin. 349; 2 Bin. 454. By
statute, there are in some states several other grounds of
challenge. See Courts of the U. S., 633 64.
12. The sheriff may be challenged for favor as well as
affinity. Co. Litt. 158, a; 10 Serg. &. R. 336-7. And the
challenge need not be made to the court, but only to the
prothonotary. Yet the Sheriff cannot be passed by in the
direction of process without cause, as he is the proper officer
to execute writs, except in case of partiality. Yet if process be
directed to the coroner without cause, it is not void. He cannot
dispute the authority of the court, but must execute it at his
peril, and the misdirection is aided by thc statutes of
amendment. 11 Serg. & R. 303.
CHAMBER. A room in a house.
2. It was formerly hold that no freehold estate could be had in
a chamber, but it was afterwards ruled otherwise. When a chamber
belongs to one person, and the rest of the house with the land is
owned by another the two estates are considered as two separate
but adjoining dwelling house's. Co. Litt. 48, b; Bro. Ab.
Demand, 20; 4 Mass. 575; 6 N. H. Rep. 555; 9 Pick. R. 297;
vide 3 Leon. 210; 3 Watts. R. 243.
3 . By chamber is also understood the place where an assembly
is held; and, by the use of a figure, the assembly itself is
called a chamber.
CHAMBER OF C0MMERCE. A society of the principal merchants and
traders of a city, who meet to promote the general trade and
commerce of the place. Some of these are incorporated, as in
Philadelphia.
CHAMBERS, practice. When a judge decides some interlocutory
matter, which has arisen in the course of the cause, out of
court, he is said to make such decision at his chambers. The most
usual applications at chambers take place in relation to taking
bail, and staying proceedings on process.
CHAMPART, French law. By this name was formerly understood the
grant of a piece of land by the owner to another, on condition
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that the latter would deliver to him a portion of the crops. IS
Toull. n. 182.
CHAMPERTOR, crim. law. One who makes pleas or suits, or causes
them to be moved, either directly or indirectly, and sues them at
his proper costs, upon condition of having a part of the gain.
CHAMPERTY, crimes. A bargain with a plaintiff or defendant,
campum partire, to divide the land or other matter sued for
between them, if they prevail at law, the champertor undertaking
to carry on the suit at his own expense. 1 Pick. 416; 1 Ham.
132; 5 Monr. 416; 4 Litt. 117; 5 John. Ch. R. 44; 7 Port. R.
488.
2. This offence differs from maintenance, in this, that in the
latter the person assisting the suitor receives no benefit, while
in the former he receives one half, or other portion, of the
thing sued for. See Punishment; Fine; Imprisonment; 4 Bl. Com.
135.
3. This was an offence in the civil law. Poth. Pand. lib. 3, t.
1; App. n. 1, tom. 3, p. 104; 15 Ves. 139; 7 Bligh's R. 369;
S. C. 20 E. C. L. R. 165; 5 Moore & P. 193; 6 Carr. & P. 749;
S. C. 25 E. C. L. R. 631; 1 -Russ. Cr. 179 Hawk. P. C. b. 1 c.
84, s. 5.
4. To maintan a defendant may be champerty. Hawk. P. C. b. 1,
c. 84, s. 8 3 Ham. 541; 6 Monr. 392; 8 Yerg. 484; 8 John. 479;
1 John. Ch. R. 444;, 7 Wend. 152; 3 Cowen, 624; 6 Co@ven, 90.
CHAMPION. He who fights for another, or takes his place in a
quarrel; it also includes him who fights his own battles. Bract.
lib. 4, t. 2, c. 12.
CHANCE, accident. As the law punishes a crime only when there
is an intention to commit it, it follows that when those acts are
done in a lawful business or pursuit by mere chance or accident,
which would have been criminal if there had been an intention,
express or implied, to commit them, there is no crime. For
example, if workmen were employed in blasting rocks in a retired
field, and a person not knowing of the circumstance should enter
the field, and be killed by a piece of the rock, there would be
no guilt in the workmen. 1 East, P. C. 262 Poster, 262; 1 Hale's
P. C. 472; 4 Bl. Com. 192. Vide Accident.
CHANCE-MEDLEY, criminal law. A sudden affray. This word is
sometimes applied to any kind of homicide by misadventure, but in
strictness it is applicable to such killing only as happens se
defendendo. (q. v.) 4 Bl. Com. 184.
CHANCELLOR. An officer appointed to preside over a court of
chancery, invested with various powers in the several states.
2. The office of chancellor is of Roman origin. He appears, at
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first, to have been a chief scribe or secretary, but he was
afterwards invested with judicial power, and had superintendence
over the other officers of the empire. From the Romans, the title
and office passed to the church, and therefore every bishop of
the catholic church has, to this day, his chancellor, the
principal judge of his consistory. When the modern kingdoms of
Europe were established upon the ruins of the empire, almost
every state preserved its chancellor, with different
jurisdictions and dignities, according to their different
constitutions. In all he seems to have had a supervision of all
charters, letters, and such other public instruments of the
crown, as were authenticated in the most solemn manner; and when
seals came into use, he had the custody of the public seal.
3. An officer bearing this title is to be found in most
countries of Europe, and is generally invested with extensive
authority. The title and office of chancellor came to us from
England. Many of our state constitutions provide for the
appointment of this officer, who is by them, and by the law of
the several states, invested with power as they provide. Vide
Encyclopedie, b. t.; Encycl.. Amer. h. t.; Dict. de Jur. h. t.;
Merl. Rep. h. t.; 4 Vin. Ab. 374; Blake's Ch. Index, h. t.;
Woodes. Lect. 95.
CHANCERY. The name of a court exercising jurisdiction at law,
but mainly
in equity.
2. It is not easy to determine how courts of equity originally
obtained the jurisdiction they now exercise. Their authority, and
the extent of it, have been subjects of much question, but time
has firmly established them; and the limits of their
jurisdiction seem to be in a great degree fixed and ascertained.
1 Story on Eq. ch. 2; Mitf. Pl. Introd.; Coop. Eq. Pl. Introd.
See also Butler's Reminiscences, 38, 40; 3 Bl. Com. 435; 2 Bin.
135; 4 Bin. 50; 6 Bin. 162; 2 Serg. & R. 356; 9 Serg. & R.
315; for the necessity, origin and use of courts of chancery.
3. The judge of the court of chancery, often called a court of
equity, bears the title of chancellor. The equity jurisdiction,
in England, is vested, principally, in the high court of
chancery. This court is distinct from courts of law. " American
courts of equity are, in some instances, distinct from those of
law, in others, the same tribunals exercise the jurisdiction both
of courts of law and equity, though their forms of proceeding are
different in their two capacities. The supreme court of the
United States, and the circuit courts, are invested with general
equity powers, and act either as court's of law or equity,
according to the form of the process and the subject of
adjudication. In some of the states, as New York, Virginia, and
South Carolina, the equity court is a distinct tribunal, having
its appropriate judge, or chancellor, and officers. In most of
the states, the two jurisdictions centre in the same judicial
officers, as in the courts of the United States; and the extent
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of equity jurisdiction and proceedings is very various in the
different states, being very ample in Connecticut, New York, New
Jersey, Maryland, Virginia, and South Carolina, and more
restricted in Maine, Massachusetts, Rhode Island, and
Pennsylvania. But the salutary influence of these powers on the
judicial administration generally, by the adaptation of cbancery
forms and modes of proceeding to many cases in which a court of
law affords but an imperfect remedy, or no remedy at all, is
producing a gradual extension of them in those states where they
have been, heretofore, very limited."
4. The jurisdiction of a court of equity differs essentially
from that of a court of law. The remedies for wrongs, or for the
enforcement of rights, may be distinguished into two classes
those which are administered in courts of law, and those which
are administered in courts of equity. The rights secured by the
former are called legal; those secured by the latter are called
equitable. The former are said to be rights and remedies at
common law, because recognized and enforced in courts of common
law. The latter are said to be rights and remedies in equity,
because they are administered in courts of equity or chancery, or
by proceedings in other courts analogous to those in courts of
equity or chancery. Now, in England and America, courts of common
law proceed by certain prescribed forms, and give a general
judgment for or against the defendant. They entertain
jurisdiction only in certain actions, and give remedies according
to the particular exigency of such actions. But there are many
cases in which a simple judgment for either party, without
qualifications and conditions, and particular arrangements, will
not. do entire justice, ex aequo et bono, to either party. Some
modification of the rights of both parties is required; some
restraints on one side or the other; and some peculiar
adjustments, either present or future, temporary or perpetual.
Now, in all these cases, courts of common law have no methods of
proceeding, which can accomplish such objects. Their forms of
actions and judgment are not adapted to them. The proper remedy
cannot be found, or cannot be administered to the full extent of
the relative rights of all parties. Such prescribed forms of
actions are not confined to our law. They were known in the civil
law; and the party could apply them only to their original
purposes. In other cases, he had a special remedy. In such cases,
where the courts of common law cannot grant the proper remedy or
relief, the law of England and of the United States (in those
states where equity is administered) authorizes an application to
the courts of equity or chancery, which are not confined or
limited in their modes of relief by such narrow regulations, but
which grant relief to all parties, in cases where they have
rights, ex aequo et bono, and modify and fashion that relief
according to circumstances. The most general description of a
court of equity is, that it has jurisdiction in cases where a
plain, adequate and complete remedy cannot be had at law that is,
in common law courts. The remedy must be plain; for, if it be
doubtful and obscure at law, equity will assert a jurisdiction.
So it must be adequate at law; for, if it fall short of what the
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party is entitled to, that founds a jurisdiction in equity. And
it must be complete; that is, it must attain its full end at law
it must reach the whole mischief and secure the whole right of
the party, now and for the future otherwise equity will
interpose, and give relief. The jurisdiction of a court of equity
is sometimes concurrent with that of courts of, law and sometimes
it is exclusive. It exercises concurrent jurisdiction in cases
where the rights are purely of a legal nature, but where other
and more efficient aid is required than a court of law can
afford, to meet the difficulties of the case, and ensure full
redress. In some of these cases courts of law formerly refused
all redress but now will grant it. But the jurisdiction having
been once justly acquired at a time when there was no such
redress at law, it is not now relinquished. The most common
exercise of concurrent jurisdiction is in cases of account,
accident, dower, fraud, mistake, partnership, and partition. The
remedy is here often more complete and effectual than it can be
at law. In many cases falling under these heads, and especially
in some cases of fraud, mistake and accident, courts of law
cannot and do not afford any redress; in others they do, but not
always in so perfect a manner. A court of equity also is
assistant to the jurisdiction of courts of law, in many cases,
where the latter have no like authority. It will remove legal
impediments to the fair decisiou of a question depending at law.
It will prevent a party from improperly setting up, at a trial,
some title or claim, which would be inequitable. It will compel
him to discover, on his own oath, facts which he knows are
material to the rights of the other party, but which a court of
law cannot compel the party to discover. It will perpetuate the
testmony of witnesses to rights and titles, which are in danger
of being lost, before the, matter can be tried. It will provide
for the safety of property in dispute pending litigation. It will
counteract and control, or set aside, fraudulent judgments. It
will exercise, in many cases, an exclusive jurisdiction. This it
does in all cases of morely equitable rights, that is, such
rights as are not recognized in courts of law. Most cases of
trust and confidence fall under this head. Its exclusive
jurisdiction is also extensively exercised in granting special
relief beyond the reach of the common law. It will grant
injunctions to prevent waste, or irreparable injury, or to secure
a settled right, or to prevent vexatious litigations, or to
compel the restitution of title deeds; it will appoint receivers
of property, where it is in danger of misapplication it will
compel the surrender of securities improperly obtained; it will
prohibit a party from leaving the country in order to avoid a
suit it will restrain any undue exercise of a legal right,
against conscience and equity; it will decree a specific
performance of contracts respecting real estates; it will, in
many cases, supply the imperfect execution of instruments, and
reform and alter them according to the real intention of the
parties; it will grant relief in cases of lost deeds or
securities; and, in all cases in which its interference is
asked, its general rule is, that he who asks equity must do
equity. If a party, therefore, should ask to have a bond for a
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usurious debt given up, equity could not decree it, unless he
could bring into court the money honestly due without usury. This
is a very general and imperfect outline of the jurisdiction of a
court of equity; in respect to which it has been justly
remarked, that, in matters within its exclusive jurisdiction,
where substantial justice entitles the party to relief, but the
positive law is silent, it is impossible to define the boundaries
of that jurisdiction, or to enumerate, with precision, its
various principles." Ency. Am. art. Equity. Vide Fonb. Eq.;
Story on Eq.; Madd. Ch. Pr.; 10 Amer. Jur. 227; Coop. Eq. Pl.;
Redesd. Pl.; Newl. Cb. Practice; Beame's Pl. Eq.; Jeremy on
Eq.; Encycl. Amer. article Equity, Court.
CHANGE. The exchange of money for money. The giving, for
example, dollars for eagles, dimes for dollars, cents for dimes.
This is a contract which always takes place in the same place. By
change is also understood small money. Poth. Contr. de Change, n.
1.
CHANGE TICKET. The name given in Arkansas to a species of
promissory notes issued for the purpose of making change in small
transactions. Ark. Rev. Stat. cb. 24.
CHAPLAIN. A clergyman appointed to say prayers and perform
divine service. Each house of congress usually appoints it own
cbaplain.
CHAPMAN. One whose business is to buy and sell goods or other
things. 2 Bl.
Com. 476.
CHAPTER, eccl. law. A congregation of clergymen. Such an
assembly is termed capitulum, which signifies a little head it
being a kind of head, not only to govern the diocese in the
vacation of the bishopric, but also for other purposes. Co. Litt.
103.
CHARACTER, evidence. The opinion generally entertained of a
person derived from the common re 'port of the people who are
acquainted with him. 3 Serg. & R. 336; 3 Mass. 192; 3 Esp. C.
236.
2. There are three classes of cases on which the moral
character and conduct of a person in society may be used in proof
before a jury, each resting upon particular and distinct grounds.
Such evidence is admissible, 1st. To afford a presumption that a
particular party has not been guilty of a criminal act. 2d. To
affect the damages in particular cases, where their amount
depends on the character and conduct of any individual; and, 3d.
To impeach or confirm the veracity of a witness.
3. - 1. Where the guilt of an accused party is doubtful, and
the character of the supposed agent is involved in the question,
a presumption of innocence arises from his former conduct in
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society, as evidenced by his general character, since it is not
probable that a person of known probity and humanity, would
commit a dislionest or outrageous act in the particular instance.
Such presumptions, however, are so remote from fact, and it is
frequently so difficult to estimate a person's real character,
that they 20are entitled to little-weight, except in doubtful
cases. Since the law considers a presumption of this nature to be
admissible, it is in principle admissible 'Whenever a reasonable
presumption arises from it, as to the fact in question; in
practice it is admitted whenever the character of the party is
involved in the issue. See 2 St. Tr. 1038 1 Coxes Rep. 424; 5
Serg. & R. 352 3 Bibb, R. 195; 2 Bibb, R. 286; 5 Day, R. 260;
5 Esp. C. 13; 3 Camp. C. 519; 1 Camp. C. 460; Str. R. 925.
Tha. Cr. Cas. 230; 5 Port. 382.
4. - 2. In some instances evidence in disparagement of
character is admissible, not in order to prove or disprove the
commission of a particular fact, but with a view to damages. In
actions for criminal conversation with the plaintiff's wife,
evidence may be given of the wife's general bad character, for
want of chastity, and even of particular acts of adultery
committed by her, previous to her intercourse with the defendant.
B. N. P. 27, 296; 12 Mod. 232; 3 Esp. C. 236. See 5 Munf. 10.
In actions for slander and libel, when the defendant has not
justified, evidence of the plaintiff's bad character has also
been admitted. 3 Camp. C. 251; 1 M. & S. 284; 2 Esp. C. 720; 2
Nott & M'Cord, 511; 1 Nott & M'Cord, 268; and see 11 Johns. R.
38; 1 Root, R. 449; 1 Johns. R. 46; 6 Penna. St. Rep. 170. The
ground of admitting such evidence is, that a person of disparaged
fame is not entitled to the same measure of damages with one
whose character is uublemished. When, however, the defendant
justifies the slander, it seems to be doubtful whether the
evidence of reports as to the conduct and character of the
plaintiff can be received. See 1 M. & S. 286, n (a) 3 Mass. R.
553 1 Pick. R. 19. When evidence is admitted touching the general
character of a party, it is manifest that it is to be confined to
matters in reference to the nature of the, charge against him. 2
Wend. 352.
5. - 3. The party against whom a witness is called, may
disprove the fact& stated by him, or may examine other witnesses
as to his general character; but they will not be allowed to
speak of particular facts or parts of his conduct. B. N. P. 296.
For example, evidence of the general character of a prosecutrix
for a rape, may be given, as that she was a street walker; but
evidence of specific acts of criminality cannot be admitted. 3
Carr. & P. 589. The regular
mode is to inquire whether the witness under examination has the
means of knowing the former witness general character, and
whether from such knowledge he would believe, him on his oath. 4
St. Tr. 693; 4 Esp. C. 102. In answer to such evidence against
character, the other party may cross-examine the witness as to
his means of knowledge, and the grounds of his opinion; or he
may attack such witness general character, and by fresh evidence
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support the character of his own. 2 Stark. C. 151; Id. 241; St.
Ev. pt. 4, 1753 to 1758; 1 Phil. Ev. 229. A party cannot give
evidence to confirm the good character of a witness, unless his
general character has been impugned by his antagonist. 9 Watts,
R. 124. See, in general, as to character, Phil. Ev. Index, tit.
Character; Stark. Ev. pl. 4, 364 Swift's Ev. 140 to 144 5 Ohio
R. 227; Greenl. Ev. §54; 3 Hill, R. 178 Bouv. Inst. Index, h.
t.
CHARGE, practice. The opinion expressed by the court to the
jury, on the law
arising out of a case before them.
2. It should contain a clear and explicit exposition of the
law, when the points of the law in dispute arise out of the facts
proved on the trial of the cause; 10 Pet. 657; but the court
ought at no time to undertake to decide the facts, for these are
to be decided by the jury. 4 Rawle's R. 195; 2 Penna. R. 27; 4
Rawle's R. 356 Id. 100; 2 Serg. & Rawle, 464; 1 Serg. & Rawle,
515; 8 Serg. & Rawle, 150. See 3 Cranch, 298; 6 Pet. 622 1
Gall. R. 53; 5 Cranch, 187; 2 Pet. 625; 9 Pet. 541.
CHARGE, contracts. An obligation entered into by the owner of
an estate which makes the estate responsible for its performance.
Vide 2 Ball & Beatty, 223; 8 Com. Dig. 306, Appendix, h. t. Any
obligation binding upon him who enters into it, which may be
removed or taken away by a discharge. T. de la Ley, h. t.
2. That particular kind of commission which one undertakes to
perform for another, in keeping the custody of his goods, is
called a charge.
CHARGE. wills, devises. An obligation which a testator imposes
on his devisee; as, if the testator give Peter, Blackacre, and
direct that he shall pay to John during his life an annuity of
one hundred dollars, which shall be a charge" on said land; or
if a legacy be and directed to be paid out of the real property.
1 Rop. Leg. 446. Vide 4 Vin. Ab. 449; 1 Supp. to Ves. jr. 309;
2 Id. 31; 1 Vern. 45, 411; 1 Swanst. 28; 4 East, R. 501; 4
Ves. jr. 815; Domat, Loix Civ. liv. 3, t. 1, s. 8, n.
CHARGE' DES AFFAIRES or CHARGE' D'AFFAIRES, internationat law.
These phrases, the first of which is used in the acts of
congress, are synonymous.
2. The officer who bear; this title is a diplomatic
representative or minister of an inferior grade, to whose care
are confided the affairs of his nation. He has not the title of
minister, and is generally introduced and admitted through a
verbal presentation of the minister, at his departure, or through
letters of credence addressed to the minister of state of the
court to which they are sent. He has the essential rights of a
minister. Mart. Law of Nat. 206; 1 Kent, Com. 39, n.; 4 Dall.
321.
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3. The president is authorized to allow to any, charge des
affaires a sum not greater than at the rate of four thousand five
hundred dollars per annum, as a compensation for his personal
services and expenses. Act of May 1, 1810, 2 Story's Laws U. S.
1171.
CHARGER, Scotch law. He in whose favor a decree suspended is
pronounced; vet a decree may be suspended before a charge is
given on it. Ersk. Pr. L. Scot.
4, 3, 7.
CHARGES. The term charges signifies the expenses which have
been incurred in relation either to a transaction or to a suit;
as the charges incurred for his benefit must be paid by a hirer;
the defendant must pay the charges of a suit. The term charges,
in relation to actions, includes something more than the costs,
technically called.
CHARITY. In its widest sense it denotes all the good affections
which men ought to bear towards each other; 1 Epistle to Cor. c.
xiii.; in its most restricted and usual sense, it signifies
relief to the poor. This species of charity is a mere moral duty,
which cannot be enforced by the law. Kames on Eq. 17. But it is
not employed in either of these senses in law; its signification
is derived chiefly from the statute of 43 Eliz. c. 4. Those
purposes are considered charitable which are enumerated in that
act, or which by analogy are deemed within its spirit and
intendment. 9 Ves. 405; 10 Ves, 541; 2 Vern. 387; Shelf.
Mortm. 59. Lord Chancellor Camden describes a charity to be a
gift to a general public use, which extends to the rich as well
as to the poor. Ambl. 651; Boyle on Charities, 51; 2 Ves. sen.
52; Ambl. 713; 2 Ves. jr. 272; 6 Ves. 404; 3 Rawle, 170; 1
Penna. R. 49 2 Dana, 170; 2 Pet. 584; 3 Pet. 99, 498 9 Cow.
481; 1 Hawks, 96; 12 Mass. 537; 17 S. & R. 88; 7 Verm. 241;
5 Harr. & John. 392; 6 Harr. & John. 1; 9 Pet. 566; 6 Pet.
435; 9 C-ranch, 331; 4 Wheat. 1; 9 Wend. 394; 2 N. H. Rep.
21, 510; 9 Cow. 437; 7 John. Cb. R. 292; 3 Leigh. 450; 1 Dev.
Eq. Rep. 276; 4 Bouv. Inst. n. 3976, et seq.
CHARRE OF LEAD, Eng. law, commerce. A quantity of lead
consisting of thirty pigs, each pig containing six stones wanting
two pounds, and every stone being
twelve pounds. Jacob.
CHARTA. An ancient word which signified not only a charter or
deed in writing, but any signal or token by which an estate was
held.
CHARTA CHYROGRAPIHATA VEL COMMUNIS. Signifies an indenture.
Shep. Touch. 50; Beames, Glanv. 197-8; Fleta, lib. 3, c. 14,
§3. It was so called, because each
party had a part.
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CHARTA DE UNA PARTE. A deed of one part; a deed poll.
2. Formerly, this phrase was used to distinguish, a deed poll,
which is an agreement made by one party only, that is, only one
of the parties does any act which is binding upon him, from a
deed inter partes. Co. Litt. 229. Vide Deed poll; Indenture;
Inter partes.
CHARTER. A grant made by the sovereign either to the whole
people or to a portion of them, securing to them the enjoyment of
certain rights. Of the former kind is the late charter of France,
which extended to the whole country; the charters which were
granted to the different American colonies by the British
government were charters of the latter species. 1 Story, Const.
L. §161; 1 Bl. Com. 108 Encycl. Amer. Charte Constitutionelle.
2. A charter differs from a CONSTITUTION in this, that the
former is granted by the sovereign, while the latter is
established by the people themselves : both are the fundamental
law of the land.
3. This term is susceptible of another signification. During
the middle ages almost every document was called carta, charta,
or chartula. In this sense the term is nearly synonymous with
deed. Co. Litt. 6; 1 Co. 1; Moor. Cas. 687.
4. The act of the legislature creating a corporation, is called
its charter. Vide 3 Bro. Civ. and Adm. Law, 188; Dane's Ab. h.
t.
CHARTER, mar. contr. An agreement by which a vessel is hired by
the owner to
another; as A B chartered the ship Benjamin Franklin to C D.
CHARTER-LAND, Eng. law. Land formerly held by deed under
certain rents and free services, and it differed in nothing from
free socage land. It was also called bookland. 2 Bl. Com. 90.
CHARTER-PARTY, contracts. A contract of affreightment in
writing, by which the owner of a ship or other vessel lets the
whole, or a part of her, to a merchant or other person for the
conveyance of goods, on a particular voyage, in consideration of
the payment of freight. This term is derived from the fact, that
the contract which bears this name, was formerly written on a
card, and afterwards the card was cut into two parts from top to
bottom, and one part was delivered to each of the parties, which
was produced when required, and by this means counterfeits were
prevented.
2. This instrument ought to contain, 1. the name and tonnage of
the vessel; 2. the name of the captain; 3. the names of the
letter to freight and the freighter; 4. the place and time
agreed upon for the loading and discharge; 5. the price of the
freight; 6. the demurrage or indemnity in case of delay; 7.
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such other conditions as the parties may agree upon. Abbott on
Ship. pt. 3, c. 1, s. 1 to 6; Poth. h. t. n. 4; Pardessus, Dr.
Coin. pt. 4, t. 4, c. 1, n. 708.
3. When a ship is chartered, this instrument serves to
authenticate many of the facts on which the proof of her
neutrality must rest, and should therefore be always found on
board chartered ships. 1 Marsh. Ins. 407 . When the goods of
several merchants unconnected with each other, are laden on board
without may particular contract of affreightment with any
individual for the entire ship; the vessel is called a general
ship, (q. v.) because open to all merchauts. but where one Or
more merchants contract for the ship exclusively, it is said to
be a chartered ship. 3 Kent, Com. 158. Abbott, Ship. pt. 2, c. 2,
S. 1 Harr. Dig. Ship and Shipping, iv.
CHARTERED SHIP. When a ship is hired or freighted by one or
more merchants for a particular voyage or on time, it is called a
chartered ship. It is freighted by a special contract of
affreightment, executed between the owners, ship's husband, or
master on the one hand, and the merchants on the other. It
differs, from a general ship. (q. v.)
CHARTIS REDDENDIS, Eng. law. An ancient writ, now obsolete,
which lays against one who had charters of feoffment entrusted to
his keeping, and who refused to deliver them. Reg. Orig. 159.
CHASE, Eng. law. The liberty of keeping beasts of chase, or
royal gaine, on another man's ground as well as on one's own
ground, protected even from the owner of the land, with a power
of hunting them thereon. It differs from a park, because it may
be on another's ground, and because it is not enclosed. 2 Bl.
Com. 38.
CHASE, property. The act of acquiring possession of animals
ferae naturae by force, cunning or address. The hunter acquires a
right to such animals by occupancy, and they become his property.
4 Toull. n. 7. No man has a right to enter on the lands of
another for the purpose of hunting, without his consent. Vide 14
East, R. 249 Poth. Tr. du Dr. de Propriete, part 1, c. 2, art. 2.
CHASTITY. That virtue which prevents the unlawful commerce of the
sexes.
2. A woman may defend her chastity by killing her assailant.
See Self-defence. And even the solicitation of her chastity is
indictable in some of the states; 7 Conn. 267; though in
England, and perhaps elsewhere, such act is not indictable. 2
Chit. Pr. 478. Words charging a woman with a violation of
chastity are actionable in themselves. 2 Conn. 707.
CHATTELS, property. A term which includes all hinds of
property, except the freehold or things which are parcel of it.
It is a more extensive term than goods or effects. Debtors taken
in execution, captives, apprentices, are accounted chattels.
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Godol. Orph. Leg. part 3, chap. 6, §1.
2. Chattels are personal or real. Personal, are such as belong
immediately to the person of a man; chattels real, are such as
either appertain not immediately to the person, but to something
by way of dependency, as a box with the title deeds of lands; or
such as are issuing out of some real estate, as a lease of lands,
or term of years, which pass like personally to the executor of
the owner. Co. Litt. 118; 1 Chit. Pr. 90; 8 Vin. Ab. 296; 11
Vin. Ab. 166; 14 Vin. Ab. 109; Bac. Ab. Baron, &c. C 2; 2
Kent, Com. 278; Dane's Ab. Index, h. t.; Com. Dig. Biens, A;
Bouv. Inst. Index, h. t.
CHEAT, criminal law, torts. A cheat is a deceitful practice, of a
public nature, in defrauding another of a known right, by some
artful device, contrary to the plain rules of common honesty. 1
Hawk. 343.
2. To constitute a cheat, the offence must be, lst. of a public
nature for every species of fraud and dishonesty in transactions
between individuals is not the subject-matter of a criminal
charge at common law; it must be such as is calculated to
defraud numbers, and to deceive the people in general. 2 East, P.
C. 816; 7 John. R. 201; 14 John. R. 371; 1 Greenl. R. 387; 6
.Mass. R. 72; 9 Cowen, R. 588; 9 Wend. R. 187; 1 Yerg. R. 76;
1 Mass. 137. 2. The cheating must be done by false weights, false
measures, false tokens, or the like, calculated to deceive
numbers. 2 Burr, 1125; 1 W. Bl. R. 273; Holt, R. 354.
3. That the object of the defendant in defrauding the
prosecutor was successful. If unsuccessful, it is a mere attempt.
(q. v.) 2 Mass. 139. When two or more enter into an agreement to
cheat, the offence is a conspiracy. (q. v.) To call a man a cheat
is slanderous. Hetl. 167; 1 Roll's Ab. 53; 2 Lev. 62. Vide
Illiterate; Token.
CHECK, contracts. A written order or request, addressed to a
bank or persons carrying on the banking business, and drawn upon
them by a party having money in their hands, requesting them to
pay on presentment to a person therein named or to bearer, a
named sum of money.
2. It is said that checks are uniformly payable to bearer Chit.
on Bills, 411; but that is not so in practice in the United
States. they are generally payable to bearer, but sometimes they
are payable to order.
3. Cheeks are negotiable instruments, as bills of exchange;
though, strictly speaking, they are due before payment has been
demanded, i$n which respect they differ from promissory notes and
bills of exchange payable on a particular day. 7 T. R. 430.
4. The differences between a common check and a bill of
exchange, are, First, that a check may be taken after it is
overdue, and still the holder is not subject to the equities
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wbich may exist between the drawer and the party 'from whom he
receives it; in the case of bills of exchange, the holder is
subject to such equity. 3 John. Cas. 5, 9; 9 B. & Cr. 388.
Secondly, the drawer of a bill of exchange is liable only on the
condition that it be presented in due time, and, if it be
dishonored, that he has had notice; but such is not the case
with a check, no delay will excuse the drawer of it, unless he
has suffered some loss or injury on that account, and then only
pro tanto. 3 Kent, Com. 104 n. 5th ed.; 8 John. Cas. 2; Story,
Prom. Notes, §492.
5. There is a kind of check known by the name of memorandum
cheeks; these are given in general with an understanding that
they are not to be presented at the bank on which they are drawn
for payment; and, as between the parties, they have no other
effect than an IOU, or common due bill; but third persons who
become the holders of them, for a valuable consideration, without
notice, have all the rights which the holders of ordinary cheeks
can lawfully claim. Story, Prom. Notes, §499.
6. Giving a creditor a cheek on a bank does not constitute
payment of a debt. 1 Hall, 56, 78; 7 S. & R. 116; 2 Pick. 204;
4 John. 296. See 3 Rand. 481. But a tender was held good when
made by a check contained in a letter, requesting a receipt in
return, which the plaintiff sent back, demanding a larger sum,
without objecting to the nature of the tender. 3 Bouv. Inst. n.
2436.
7. A cheek delivered by a testator in his lifetime to a person
as a gift, and not presented till after his death, was considered
as a part of his will, and allowed to be proved as such. 3 Curt.
Ecc. R. 650. Vide, generally,4 John. R. 304; 7 John. R. 26; 2
Ves. jr. 111; Yelv. 4, b, note; 7 Serg. & Rawle, 116; 3 John.
Cas. 5, 259; 6 Wend. R. 445; 2 N. & M. 251; 1 Blackf. R. 104;
1 Litt. R. 194; 2 Litt. R. 299; 6 Cowen, R. 484; 4 Har. & J.
276; 13 Wend. R. 133; 10 Wend. R. 304; 7 Har. & J. 381; 1
Hall, R. 78; 15 Mass. R. 74; 4 Yerg. R. 210; 9 S. & R. 125; 2
Story, R. 502; 4 Whart. R. 252.
CHECK BOOK, commerce. One kept by persons who have accounts in
bank, in which are printed blank forms of cheeks, or orders upon
the bank to pay money.
CHEMISTRY med. jur. The science which teaches the nature and
property of all bodies by their analysis and combination. In
considering cases of poison, the lawyer will find a knowledge of
chemistry, even very limited in de ree, to be greatly useful. 2
Cbit. Pr. 42, n.
CHEVISANCE, contracts, torts. This is a French word, which
signifies in that language, accord, agreement, compact. In the
English statutes it is used to denote a bargain or contract in
general. In a legal sense it is taken for an unlawful bargain or
contract.
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CHIEF, principal. One who is put above the rest; as, chief
magistrate chief justice : it also signifies the best of a number
of things. It is frequently used in composition.
CHIEF CLERK OF THE DEPARTMENT OF STATE. This officer is
appointed by the secretary of state; his duties are to attend to
the business of the ofFice under the superintendence of the
secretary; and when the secretary shall be removed from office,
by the president, or in any other case of vacancy, shall, during
such vacancy, have the charge and custody of all records, books
and papers appertaining to such department,
CHIEF JUSTICE, officer. The president of a supreme court; as
the chief justice of the United States, the chief justice of
Pennsylvania, and the -like. Vide 15 Vin. Ab. 3.
CHIEF JUSTICIARY. An officer among the English, established
soon after the conquest.
2. He had judicial power, and sat as a judge in the Curia
Regis. (q. v.) In the absence of the king, he governed the
kingdom. In the course of time, the power and distinction of this
officer gradually diminished, until the reign of Henry III, when
the office was abolished.
CHILD, CHILDREN, domestic relations. A child is the son or
daughter in relation to the father or mother.
2. We will here consider the law, in general terms, as it
relates to the condition, duties, and rights of children; and,
afterwards, the extent which has been given to the word child or
children by dispositions in wills and testaments.
3. - 1. Children born in lawful wedlock, or within a competent
time afterwards, are presumed to be the issue of the father, and
follow his condition; those born out of lawful wedlock, follow
the condition of the mother. The father is bound to maintain his
children and to educate them, and to protect them from injuries.
Childrenare, on their part, bound to maintain their fathers and
mothers, when in need, and they are of ability so to do. Poth. Du
Marriage, n. 384, 389. The father in general is entitled to the
custody of minor children, but, under certain circumstances, the
mother will be entitled to them, when the father and mother have
separated. 5 Binn. 520. Children are liable to the reasonable
correction of their parents. Vide Correction
4. - 2 The term children does not ordinarily and properly
speaking comprehend grandchildren, or issue generally; yet
sometimes that meaning is, affixed to it, in cases of necessity;
6 Co. 16; and it has been held to signify the same as issue, in
cases where the testator, by using the terms children and issue
indiscriminately, showed his intention to use the former term in
the sense of issue, so as to entitle grandchildren, & c., to take
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under it. 1 Ves. sen. 196; Ambl. 555; 3 Ves. 258; Ambl. 661;
3 Ves. & Bea. 69. When legally construed, the term children is
confined to legitimate children. 7 Ves. 458. The civil code of
Louisiana, art. 2522, n. 14, enacts, that "under the, name of
children are comprehended, not only children of the first degree,
but the grandchildren, great-grand-children, and all other
descendants in the direct line."
5. Children are divided into legitimate children, or those born
in lawful wedlock; and natural or illegitimate children, who are
born bastards. (q. v.) Vide Natural Children. Illegitimate
children are incestuous bastards, or those which are not
incestuous.
6. Posthumous children are those who are born after the death
of their fathers. Domat, Lois Civ. liv. prel. t. 2, s. 1, §7 L.
3, §1, ff de inj. rupt.
7. In Pennsylvania, the will of their fathers, in, which no
provision is made for them, is revoked, as far as regards them,
by operation of law. 3 Binn. R. 498. See, as to the law of
Virginia on this subject, 3 Munf. 20, and article In ventre sa
mere. Vide, generally, 8 Vin. Ab. 318; 8 Com. Dig. 470; Bouv.
Inst. Index, h. t.; 2 Kent, Com. 172; 4 Kent, Com. 408, 9; 1
Rop. on Leg. 45 to 76; 1 Supp. to Ves. jr. 442 Id. 158; Natural
children.
CHILDISHNESS. Weakness of intellect, such as that of a child.
2. When the childishness is so great that a man has lost his
memory, or is incapable to plan a proper disposition of his
property, he is unable to make a will. Swinb. part. 11, §1; 6
Co. 23. See 9 Conn. 102; 9 Phil. R. 57.
CHIMIN. This is a corruption of the French word chemin, a
highway. It is used by old writers. Com. Dig. Chimin.
CHINESE INTEREST. Interest for money charged in China. In a
case where a note was given in China, payable eighteen mouths
after date, without, any stipulation respecting interest, the
court allowed the Chinese interest of one per cent. per month,
from the expiration of the eighteen months. 2 Watts & Serg. 227,
264.
CHIROGRAPH, conveyancing. Signifies a deed or public instrument
in writing. Chirographs were anciently attested by the
subscription and crosses of witnesses; afterwards, to prevent
frauds and concealments, deeds of mutual covenant were made in a
script and rescript, or in a part and counterpart; and in the
middle, between the two copies, they drew the capital letters of
the alphabet, and then tallied, or cut asunder in an indented
manner, the sheet or skin of parchment, oneof which parts being
delivered to each of the parties, were proved authentic by
matching with and answering to one another. Deeds thus made were
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denominated syngrapha, by the canonists, because that word,
instead of the letters of the alphabet, or the word chirographum,
was used. 2 Bl. Com. 296. This method of preventing
counterfeiting, or of detecting counterfeits, is now used by
having some ornament or some word engraved or printed at one end
of certificates of stocks, checks, and a variety of other
instruments, which are bound up in a book, and after they are
executed, are cut asunder through such ornament or word.
2. Chirograph is also the last part of, a fine of land,
commonly called the foot of the fine. It is an instrument of
writing beginning with these. words: " This is the final
agreement," &c. It includes the whole matter, reciting the
parties, day, year and place, and before Whom the fine was
acknowledged and levied. Cruise, Dig. tit. 35, c. 2, s. 52. Vide
Chambers' Diet. h. t.; Encyclopaedia Americana, Charter;
Encyclopedie de D'Alembert, h. t.; Pothier,
Pand. tom. xxii. p. 73.
CHIROGRAPHER. A word derived from the Greek, which signifies "a
writing with a man's hand." A chirographer is an officer of the
English court of C. P.who engrosses the fines, and delivers the
indentures of them to the parties, &c.
CHIVALRY, ancient Eng. law. This word is derived from the
French chevelier, a horseman. It is. the name of a tenure of land
by knight's service. Chivalry was of two kinds: the first; which
was regal, or held only of the king; or common, which was held
of a common person. Co. Litt. h. t.
CHOICE. Preference either of a person or thing, to one of
several other persons or things. Election. (q. v.)
CHOSE, property. This is a French word, signifying thing. In
law, it is applied to personal property; as choses in
possession, are such personal things of which one has possession;
choses in action, are such as the owner has not the possession,
but merely a right of action for their possession. 2 Bl. Com.
889, 397; 1 Chit. Pract. 99; 1 Supp. to Ves. Jr. 26, 59. Chitty
defines choses in actions to be rights to receive or recover a
debt, or money, or damages for breach of contract, or for a tort
connected with contract, but which cannot be enforced without
action, and therefore termed choses, or things in action. Com.
Dig. Biens; Harr. Dig. Chose in ActionChitty's Eq. Dig. b. t.
Vide 1 Ch. Pr. 140.
2. It is one of the qualities of a chose in action, that, at
common law, it is not assignable. 2 John. 1; 15 Mass. 388; 1
Crancb, 367. But bills of exchange and promissory notes, though
choses in action, may be assigned by indorsement, when payable to
order, or by delivery when payable to bearer. See Bills of
Exchange.
3. Bonds are assignable in Pennsylvania, and perhaps some other
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states, by virtue of statutory provisions.Inequity, however, all
choses in action are assignable and the assignee has an equitable
right to enforce the fulfilment of the obligation in the name of
the assignor. 4 Mass. 511; 3 Day. 364; 1 Wheat. 236; 6 Pick.
316 9 ow. 34; 10 Mass. 316; 11 Mass. 157, n. 9 S. & R. 2441; 3
Yeates, 327; 1 Binn. 429; 5 Stew. & Port. 60; 4 Rand. 266; 7
Conn. 399; 2 Green, 510; Harp. 17; Vide, generally, Bouv.
Inst. Index, h. t.
4. Rights arising ex delicto are not assignable either at law
or in equity.
CHRISTIANITY. The religion established by Jesus Christ.
2. Christianity has been judicially declared to be a part of
the common law of Pennsylvania; 11 Serg. & Rawle, 394; 5 Binn.
R.555; of New York, 8 Johns. R. 291; of Connecticut, 2 Swift's
System, 321; of Massachusetts, Dane's Ab. vol. 7, c. 219, a. 2,
19. To write or speak contemptuously and maliciously against it,
is an indictable offence. Vide Cooper on the Law of Libel, 59 and
114, et seq.; and generally, 1 Russ. on Cr. 217; 1 Hawk, c. 5;
1 Vent. 293; 3 Keb. 607; 1 Barn. & Cress. 26. S. C. 8 Eng. Com.
Law R. 14; Barnard. 162; Fitzgib. 66; Roscoe, Cr. Ev. 524; 2
Str. 834; 3 Barn. & Ald. 161; S. C. 5 Eng. Com. Law R. 249
Jeff. Rep. Appx. See 1 Cro. Jac. 421 Vent. 293; 3 Keb. 607;
Cooke on Def. 74; 2 How. S. C. 11-ep. 127, 197 to 201.
CHURCH. In a moral or spiritual sense this word signifies a
society of persons who profess the Christian religion; and in a
physical or material sense, the place where such. persons
assemble. The term church is nomen collectivum; it comprehends
the chancel, aisles, and body of the churcb. Ham. N. P. 204.
2. By the English law, the terms church or chapel, and
church-yard, are expressly recognized as in themselves correct
and technical descriptions of the building and place, even in
criminal proceedings. 8 B. & C. *25; 1 Salk. 256; 11 Co. 25 b;
2 Esp. 5, 28.
3. It is not within the plan of this work to give an account of
the different local regulations in the United States respecting
churches. References are here given to enable the inquirer to
ascertain what they are, where such regulations are known to
exist. 2 Mass. 500; 3 Mass. 166; 8 Mass. 96; 9 Mass. 277; Id.
254; 10 Mass. 323; 15 Mass. 296 16 Mass. 488; 6 Mass. 401; 10
Pick. 172 4 Day, C. 361; 1 Root §3, 440; Kirby, 45; 2 Caines'
Cas. 336; 10 John. 217; 6 John. 85; 7 John. 112; 8 John. 464;
9 John. 147; 4 Desaus. 578; 5 Serg. & Rawle, 510; 11 Serg. &
Rawle, 35; Metc. & Perk. Dig. h. t.; 4 Whart. 531.
CHURCH-WARDEN. An officer whose duties are, as the name
implies, to take care of, or guard the church.
2. These officers are created in some ecclesiastical
corporations by the charter, and their rights and duties are
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definitely explained.In England, it is said, their principal
duties are to take care of, 1. the church or building; 2. the
utensils and furniture; 3. the church-yard; 4. - matters of
good order concerning the church and church-yard; 5. the
endowments of the church. Bac. Ab. h. t. By the common law, the
capacity of church-wardens to hold property for the church, is
limited to personal property. 9 Cranch, 43.
CINQUE PORTS, Eng. law. Literally, five ports. The name by
which tho five ports of Hastings, Ramenhale, Hetha or Hethe,
Dover, and Sandwich, are known. 2. These ports have peculiar
charges and services imposed upon them, and were entitled to
certain privileges and liberties. See Harg. L. Tr. 106-113.
CIPHER. An arithmetical character, used for numerical notation.
Vide Figures, and 13 Vin. Ab. 210; 18 Eng. C. L. R. 95; 1 Ch.
Cr. Law, 176.
2. By cipher is also understood a mode of secret writing.
Public ministers and other public agents frequently use ciphers
in their correspondence, and it is sometimes very useful so to
correspond in times of war. A key is given to each minister
before his departure, namely, the cipher for writing ciphers,
(chiffre chiffrant,) and the cipher for deciphering (chiffre
dechiffrant.) Besides these, it is usual to give him a common
cipher, (chiffre banal,) -which is known to all the ministers of
the same power, who occasionally use it in their correspondence
with each other.
3. When it is suspected that, a cipher becomes known to the
cabinet where the minister is residing, recourse is had to a
preconcerted sign in order to annul, entirely or in part, what
has been written in cipher, or rather to indicate that the
contents are to be understood in an inverted or contrary sense. A
cipher of reserve is also employed in extraordinary cases.
CIRCUIT COURT. The name of a court of the United States, which
has both civil and criminal jurisdiction. In several of the
states there are courts which bear this name. Vide Courts of the
United States.
CIRCUITY OFACTION, practice, remedies. It is where a party, by
bringing an action, gives an action to the defendant against
him.
2. As, supposing the obligee of a bond covenanted that he would
not sue on it; if he were to sue he would give an. action
against himself to the defendant for a breach of his covenant.
The courts prevent such circuitous actions, for it is a maxim of
law, so to judge of contracts as to prevent a multiplicity of
actions; and in the case just put, they would hold that the
covenant not to sue operated as a release. 1 T. R. 441. It is a
favorite object of courts of equity to prevent a multiplicity of
actions. 4 Cowen, 682.
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CIRCUITS. Certain divisions of the country, appointed for
particular judges to visit for the trial of causes, or for the
administration of justice. See 3 Bl. Com. 58; 3 Bouv. Inst. n.
2532.
CIRCULATING MEDIUM. By this term is understood whatever is used
in making payments, as money, bank notes, or paper which passes
from hand to hand in payment of goods, or debts.
CIRCUMDUCTION, Scotch law. A term applied to the time allowed
for bringing proof of allegiance, which being elapsed, if either
party sue for circumduction of the time of proving, it has the
effect that no proof can afterwards be brought; and the cause
must be determined as it stood when circumduction was obtained.
Tech. Dict.
CIRCUMSTANCES, evidence. The particulars which accompany a
fact.
2. The facts proved are either possible or impossible, ordinary
and probable, or extraordinary and improbable, recent or ancient;
they may have happened near us, or afar off; they are public or
private, permanent or transitory, clear and simple, or
complicated; they are always accompanied by circumstances which
more or less influence the mind in forming a judgment. And in
some instances these circumstances assume the character of
irresistible evidence; where, for example, a woman was found
dead in a room, with every mark of having met with a violent
death, the presence of another person at thescene of action was
made manifest by the bloody mark of a left hand visible on her
left arm. 14 How. St. Tr. 1324. These points ought to be
carefully examined, in order to form a correct opinion. The first
question ought to be, is the fact possible ? If so, are there any
circumstances which render it impossible ? If the facts are
impossible, the witness ought not to be credited. If, for
example, a man should swear that he saw the deceased shoot
himself with his own pistol, and upon an examination of the ball
which killed him, it should be found too large to enter into the
pistol, the witness ought not to be credited. 1 Stark. Ev. 505;
or if one should swear that another had been guilty of an
impossible crime.
3. Toullier mentions a case, which, were it not for the
ingenuity of the counsel, would require an apology for its
introducion here, on account of its length. The case was this: La
Veuve Veron brought an action against M. de Morangies on some
notes, which the defendant alleged were fraudulently obtained,
for the purpose of recovering 300,000 francs, and the question
was, whether the defendant had received the money. Dujonquai, the
grandson of the plaintiff, pretended he had himself, alone and on
foot, carried this sum in gold to the defendant, at his hotel at
the upper end of the rue Saint Jacques, in thirteen trips,
between half-past seven and about one o'clock, that is, in about
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five hours and a half, or, at most, six hours. The fact was
improbable; Linquet, the counsel of the defendant, proved it was
impossible; and this is his argument:
4. Dujonquai said that he had divided the sum in thirteen bags,
each containing six hundred louis d'ors, and in twenty-three
other bags, each containing two hundred. There remained
twenty-five louis to complete the whole sum, which, Dujonquai
said, he received from the defendant as a gratuity. At each of
'these trips, he says, he put a bag, containing two hundred
louis, that is, about three pounds four ounces, in each of his
coat pockets, which, being made in the fashion of those times,
hung about the thighs, and in walking must have incommoded him
and obstructed his speed; he took, besides, a bag containing six
hundred louis in his arms; by this means his movements were
impeded by a weight of near ten pounds.
5. The measured distance between the house where Dujonquai took
the bags to the foot of the stairs of the defendant, "as five
hundred and sixteen toises, which, multiplied by twenty-six, the
thirteen trips going and returning, make thirteen thousand four
hundred and sixteen toises, that is, more than five leagues and a
half (near seventeen miles), of two thousand four hundred toises,
which latter distance is considered sufficient for an hour's
walk, of a good walker. Thus, if Dujonquai had been unimpeded by
any obstacle, he would barely have had time to perform the task
in five or six hours, even without taking any rest orrefreshment.
However strikingly improbable this may have been, it was not
physically impossible. But
6.- 1. Dujonquai, in going to the defendant's, had to descend
sixty-three steps from his grandmother's, the plaintiff's
chamber, and to ascend twenty-seven to that of the defendant, in
the whole, ninety steps. In returning, the ascent and descent
were changed, but the steps were the same; so that by
multiplying, by twenty-six, the number of trips going and
returning, it would be seen tbere were two thousand three hundred
and forty steps. Experience had proved that in ascending to the
top of the tower of Notre Dame (a church in Paris), where there
are three hundred and eighty-nine steps, it occupied from eight
to nine minutes of time. It must then have taken an hour out of
the five or six which had been employed in making the thirteen
trips.
7.-2. Dujonquai had to go up the rue Saint Jacques, which is
very steep; its ascent would necessarily decrease the speed of a
man, burdened and encumberedwith the bags which he carried in his
pockets and in his arms.
8.-3. This street, which is very public, is usually,
particularly in the morning, encumbered by a multitude of persons
going in every direction, so that a person going along must make
an infinite number of deviations from a direct line; each by
itself, is almost imperceptible, but at the end of five or six
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hours, they make a considerable sum, which may be estimated at a
tenth part of the whole course in a straight line; this would
make about half a league, to be added to the five and a half
leagues, which is the distance in a direct line.
9. - 4. On the morning that Dujonquai made these trips, the
daily and usual incumbrances of this street were increased by
sixty or eighty workmen, who were employed in removing by hand
and with machine, an enormous stone, intended for the church of
Saint Genevieve, now the pantheon, and by the immense crowd which
this attracted; this was a remarkable eircumstance, which,
supposing that Dujonquai had not yielded to the temptation of
stopping a few moments to see what was doing, must necessarily
have impeded his way, and made him lose seven or eight minutes
each trip, which, multiplied by twenty-six would make about two
hours and a half.
10. - 5. The, witness was obliged to open and shut the doors at
the defendant's house; it required time to take up the bags and
place them in his pockets, to take them out and put them on the
defendant's table, who, by an improbable supposition, counted the
money in the intervals between the trips, and not in the presence
of the witness. Dujonquai, too, must have taken receipts or
acknowledgments at each trip, he must read them, and on arriving
at home, deposited them in some place of safety all these
distractions would necessarily occasion the loss of a few
minutes. By adding these with scrupulous nicety, and by further
adding the time employed in taking and depositing the bags, the
opening and shutting of the doors, the reception of the receipts,
the time occupied in reading and putting them away, the time
consumed in several conversations, which he admitted he had with
persons in the street; all these joined to the obstacles above
mentioned, made it evident that it was physically impossible that
Dujonquai should have carried the 300,000 francs to the house of
the defendant, as he affirmed he had done. Toull. tom. 9, n. 241,
p. 384. Vide, gencrally, 1 Stark. Ev. 502; 1 Phil. Ev. 116. See
some curious cases of circumstantial evidence in Alis. Pr. Cr.
Law, 313, 314; and 2 Theorie des Lois Criminelles, 147, n.; 3
Benth. Jud. Ev. 94, 223; Harvey's Meditations on the Night, note
35; 1 Taylor's Med. Jur. 372; 14 How. St. Tr. 1324; Theory of
Presumptive Proof, passim; Best on Pres. SSSS 187, 188, 197. See
Death; Presumption; Sonnambulism.
CIRCUMSTANDIBUS, persons, practice. Bystanders from whom jurors
are to be selected when the panel has been exhausted. Vide Tales
de circumstandibus.
CIRCUMVENTION, torts, Scotch law. Any act of fraud whereby a
person is reduced to a deed by decreet. Tech. Dict. It has the
same sense in the civil law. Dig. 50, 17, 49 et 155; Id. 12, 6,
6, 2; Id. 41, 2, 34. Vide Parphrasis.
CITATIO AD REASSUMENDAM CAUSAM, civil law. The name of a
citation, which issued when a party died pending a suit, against
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the heir of the defendant, or when the plaintiff died, for the
heir of the plaintiff. Our bill of revivor is probably borrowed
from this proceeding.
CITATION, practice. A writ issued out of a court of competent,
jurisdiction, commanding a person therein named to appear and do
something therein mentioned, or to show cause why he should not,
on a day named. Proct. Pr. h. t. In the ecclesiastical law, the
citation is the beginning and foundation of the whole cause; it
is said to have six requisites, namely.: the insertion of the
name of the judge; of the promovert; of the impugnant; of the
cause of suit; of the place; and of the time of appearance; to
which may be added the affixing the seal of the court, and the
name of the register or his deputy. 1 Bro. Civ. Law, 453-4; Ayl.
Parer. xliii. 175; Hall's Adm. Pr. 5; Merl. Rep. h. t. By,
citation is also understood the act by which a person is
summoned, or cited.
CITATION OF AUTHORITIES. The production or reference to the
text of acts of legislatures and of treatises, and decided cases,
in order to support what is advanced.
2. Works are sometimes surcharged with useless and misplaced
citations; when they are judiciously made, they assist the
reader in his researches. Citations ought not to be made to prove
what is not doubted; but when a controverted point is mooted, it
is highly proper to cite the laws and cases, or other authorities
in support of the controverted proposition.
3. The mode of citing statutes varies in the United States;
the laws of the United States are generally cited by their date,
as the act of Sept. 24, 1789, s. 35; or act of 1819, eh. 170, 3
Story's U. S. Laws, 1722. In Pennsylvania, acts of assembly are
cited as follows: act of 14th of April, 1834; in Massachusetts,
stat. of 1808, c. 92. Treatises and books of reports, are
generally cited by the volume and page, as, 2 Powell on Morts.
600; 3 Binn. R. 60. Judge
Story and some others, following the examples of the civilians,
have written their works and numbered the paragraphs; these are
cited as follows: Story's Bailm. §494; Gould on Pl. c. 5, §30.
For other citaions the reader is referred to the article
Abbreviations.
4. It is usual among the civilians on the continent of Europe,
in imitation of those in the darker ages, in their references to
the Institutes, the Code and the Pandects or Digest, to mention
the number, not of the book, but of the law, and the first word
of the title to which it belongs; and as there are more than a
thousand of these, it is no easy task for one not thoroughly
acquainted with those collections, to find the place to which
reference is made. The American writers generally follow the
natural mode of reference, by putting down the name of the
collection, and then the number of the book, title, law, and
section. For example, Inst. 4, 15, 2, signifies Institutes, book
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four, title fifteen, and section two; Dig. 41, 9, 1, 3, means
Digest, book 41, title 9, law 1, section 3; Dig. pro dote, or ff
pro dote, that is, section 3, law 1, of the book and title of the
Digest or Pandects, entitled pro dote. It is proper to remark,
that Dig. and ff are equivalent; the former signifies Digest,
and the latter, which is a careless mode of writing the Greek
letter it, the first letter of the word pavdectai, Pandects, and
the Digest and Pandects are different names for one and the same
thing. The Code is cited in the same way. The Novels are cited by
their number, with tbat of the chapter and paragraph; for
example, Nov. 185, 2, 4; for Novella Justiniani 185, capite 2,
paragrapho 4. Novels are also quoted by the Collation, the title,
chapter, and paragraph as follows: in Authentics, Collatione 1
titulo 1, cap. 281. The Authentics are quoted by their first
words, after which is set down the title of the Code under which
they are placed for example, Authentica cum testator, Codice ad
legem fascidiam Sele Mackel. Man. Intro. §66. Modus Legendi
Abbreviaturas passim in jure tam civili quam pontificii
occurrentes, 1577.
CITIZEN, persons. One who, under the constitution and laws of
the United States, has a right to vote for representatives in
congress, and other public officers, and who is qualified to fill
offices in the gift of the people. In a more extended sense,
under the word citizen, are included all white persons born in
the United States, and naturalized persons born out of the same,
who have not lost their right as such. This includes men, women,
and children.
2. Citizens are either native born or naturalized. Native
citizens may fill any office; naturalized citizens may be
elected or appointed to any office under the constitution of the
United States, except the office of president and vice-president.
The constitution provides, that " the citizens of each state
shall be entitled to all the privileges and immunities of
citizens in the several states." Art. 4, s. 2.
3. All natives are not citizens of the United States; the
descendants of the aborigines, and those of African origin, are
not entitled to the rights of citizens. Anterior to the adoption
of the constitution of the United States, each state had the
right to make citizens of such persons as it pleased. That
constitution does not authorize any but white persons to become
citizens of the United States; and it must therefore be presumed
that no one is a citizen who is not white. 1 Litt. R. 334; 10
Conn. R. 340; 1 Meigs, R. 331.
4. A citizen of the United States, residing in any state of the
Union, is a citizen of that state. 6 Pet. 761 Paine, 594;1 Brock.
391; 1 Paige, 183 Metc. & Perk. Dig. h. t.; vide 3 Story's
Const. §1687 Bouv. Inst. Index, b. t.; 2 Kent, Com. 258; 4
Johns. Ch. R. 430; Vatt. B. 1, c. Id, §212; Poth. Des
Personnes, tit. 2, s. 1. Vide Body Politic; Inhabitant.
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CITY, government. A town incorporated by that name. Originally,
this word did not signify a town, but a portion of mankind who
lived under the same government: what the Romans called civitas,
and, the Greeks polis; whence the word politeia, civitas seu
reipublicae status et administratio. Toull. Dr. Civ. Fr. 1. 1, t.
1, n. 202; Henrion de Pansey, Pouvoir Municipal, pp. 36, 37.
CIVIL. This word has various significations. 1. It is used in
contradistinction to barbarous or savage, to indicate a state of
society reduced to order and regular government; thus we speak
of civil life, civil society, civil government, and civil liberty
2. It is sometimes used in contradistinction to criminal, to
indicate the private rights and remedies of men, as members of
the community, in contrast to those which are public and relate
to the government; thus we speak of civil process and criminal
process, civil jurisdiction and criminal jurisdiction.
3. It is also used in contradistinction to military or
ecclesiastical, to natural or foreign; thus we speak of a civil
station, as opposed to a military or ecclesiastical stationa
civil death as opposed to a natural death; a civil warasopposed
to a foreign war. Story on the Const. §789; 1 Bl. Coin. 6, 125,
251; Montesq. Sp. of Laws, B 1, c. 3; Ruth. Inst. B. 2, c. 2;
Id. ch. 3Id. ch. 8, p. 359; Hein. Elem. Jurisp. Nat. B. 2, ch.
6.
CIVIL ACTION. In New York, actions are divided only into two
kinds, namely, criminal and civil. A criminal action is
prosecuted by the state, as a party, against a person charged
with a public offence, for the punishment thereof. Every other
action is a civil action. Code of Procedure, s. 4, 5, 6; 3 Bouv.
Inst. n. 2638. In common parlance, however, writs of mandamus,
certiorari, habeas corpus, &c., are not comprised by the
expression, civil actions. 6 Bin. Rep. 9.
CIVIL COMMOTION. Lord Mansfield defines a civil commotion to be
"an insurrection of the people for general purposes, though it
may not amount to rebellion where there is an usurped power." 2
Marsh. lnsur. 793. In the printed proposals which are considered
as making a part of the contract of insurance against fire, it is
declared that the insurance company will not make good any loss
happening by any civil commotion.
CIVIL DEATH, persons. The change of the state (q. v.) of a
person who is declared civilly dead by judgment of a competent
tribunal. In such case, the person against whom such sentence is
pronounced is considered dead. 2 John. R. 218. See Gilb. Uses,
150; 2 Bulst. 188; Co. tit. 132; Jenk. Cent. 250; 1 Keble,
398; Prest. on Convey. 140. Vide Death, civil.
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CIVIL LAW. The municipal code of the Romans is so called. It is
a rule of action, adopted by mankind in a state of society. It
denotes also the municipal law of the land. 1 Bouv. Inst. n. 11.
See Law, civil.
CIVIL LIST. The sum which is yearly paid by the state to its
monarch, and the domains of which he is suffered to have the
enjoyment.
CIVIL OBLIGATION, Civil law. One which binds in law, vinculum
juris, and which may be enforeed in a court of justice. Poth.
Obl. 173, and 191. See Obligation.
CIVIL OFFICER. The constitution of the United States, art. 2,
s. 4, provides, that the president, vice-president, and civil
officers of the United States, shall be removed from office on
impeachment for, and conviction of treason, bribery, or other
high crimes and misdemeanors. By this term areincluded all
officers of the United States who hold their appointments under
the national government, whether their duties are executive or
judicial, in the highest or the lowest departments; of the
government, with the exception of officers of the army and navy.
Rawle on the Const. 213; 2 Story, Const. §790; a senator of the
United States, it was decided, was not a civil officer, within
the meaning of this clause in the constitution. Senate Journals,
10th January, 1799; 4 Tuck. Bl. Com. Appx. 57, 58; Rawle,
Const. 213; Serg. on Const. Law, 376; Story, Const. §791.
CIVIL REMEDY, practice. This term is used in opposition to the
remedy given by indictment in a criminal case, and signifies the
remedy which the law gives to the party against the offender.
2. In cases of treason and felony, the law,, for wise purposes,
suspends this remedy in order to promote the public interest,
until the wrongdoer shall have been prosecuted for the public
wrong. 1 Miles, Rep. 316-17; 12 East, 409; R. T. H. 359; 1
Hale's P. C. 546; 2 T. R. 751, 756; 17 Ves. 329; 4 Bl. Com.
363; Bac. Ab. Trepass, E 2; and Trover, D. This principle has
been adopted in New Hampshire N. H. R. 239; but changed in New
York by statutory provision; 2 Rev. Stat. 292, §2 and by
decisions in Massachusetts, except perhaps in felonies punishable
with death; 15 Mass. R. 333; in Ohio; 4 Ohio R. 377; in North
Carolina; 1 Tayl. R. 58. By the common law, in cases of
homicide, the civil remedy is merged in the felony. 1 Chit. Pr.
10. Vide art. Injuries; Merger.
CIVIL STATE. The union of individual men in civil society under
a system of laws and a magistracy, or magistracies, charged with
the administration of the laws. It is a fundamental law of the
civil state, that no member of it shall undertake to redress or
avenge any violation of his rights, by another person, but appeal
to the constituted authorities for that purpose, in all cases in
which is is possible for him to do so. Hence the citizens are
justly considered as being under the safeguard of the law. 1
Toull. n. 201. Vide Self-defence.
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CIVILIAN. A doctor, professor, or student of the civil law.
CIVILITER. Civilly; opposed to criminaliter or criminally.
2. When a person does an unlawful act injurious to another,
whether with or without an intention to commit a tort, he is
responsible civiliter. In order to make him liable criminaliter,
he must have intended to do the wrong; for it is a maxim, actus
non facit reum nisi mens sit rea. 2 East, 104.
CIVILITER MORTUUS. Civilly dead; one who is considered as if
he were naturally dead, go far as his rights are concerned.
CLAIM. A claim is a challenge of the ownership of a thing which
a man has not in possession, and is wrongfully withheld by
another. Plowd. 359; Wee i Dall.444; 12 S. & R. 179.
2. In Pennsylvania, the entry on of the demand of a mechanic or
materialman for work done or material furnished in the erection
of a building, in those counties to which the lien laws extend,
is called a claim.
3. A continual c1aim is a claim made in a particular way, to
preserve the' rights of a feoffee. See Continual claim.
4. Claim of conusance is defined to be an intervention by a
third person, demanding jurisdiction of a cause against a
plaintiff, who has chosen to commence his action out of the
claimant's court. 2 Wils. 409; 1 Cit. Pb. 403; Vin. Ab.
Conusance; Com. Dig. Courts, P; Bac. Ab. Courts, D 3; 3 Bl.
Com. 298.
CLAIMANT. In the courts of admiralty, when the suit is in rem,
the cause is entitled in the Dame of the libellant against the
thing libelled, as A B v. Ten cases of calico and it preserves
that title through the whole progress of the suit.When a person
is authorized and admitted to defend the libel, he is called the
claimant. The United States v. 1960 bags of coffee; 8 Cranch, R.
398; United States v. The Mars; 8 Cranch, R. 417; 30 hhds. of
sugar, (Brentzon, claimant, v. Boyle. 9 Cranch, R. 191.
CLANDESTINE. That which is done in secret and contrary to law.
2.Generally a clandestine act in case of the limitation of
actions will prevent the act from running. A clandestine marriage
is one which has been contracted without the form which the law
has prescribed for this important contract. Alis. Princ. 543
CLARENDON. The constitutions of Clarendon were certain statutes
made in the reign of Henry H., of England, in a parliament holden
at Clarendon, by which the king cheeked the power of the pope and
his clergy. 4 Bl. Com. 415.
CLASS. The order according to which are arranged or distributed,
or are supposed to be arranged or distributed, divers persons or
things; thus we say, a class of legatees.
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2. When a legacy is given to a class of individuals, all who
answer the description at the time the will takes effect, are
entitled; and though the expression be in the plural, yet if
there be but one, he shall take the whole. 3 M'Cord, Ch. R. 440.
3. When a bond is given to a class of persons, it is good, and
all composing that class are entitled to sue upon it; but if the
obligor be a member of such class, the bond is void, because a
man cannot be obligor and obligee at the same-time; as, if a
bond be given to the justices of the county court, and at the
time the obligor is himself one of said justices. 3 Dev. 284,
287,289; 4 Dev. 882.
4. When a charge is made against a class of society, a
profession, an order or body of men, and cannot possibly import a
personal application to private injury, no action lies; but if
any one of the class have sustained special damages inconsequence
of such charge, he may maintain an action. 17 Wend. 52, 23, 186.
See 12 John. 475. When the charge is against one of a class,
without designating which, no action lies; as, where three
persons had been examined as witnesses, and the defendant said in
addressing himself to them, " one of you three is perjured." 1
Roll. Ab. 81; Cro. Jac. 107; 16 Pick. 132.
CLAUSE, contracts. A particular disposition which makes part of
a treaty; of an act of the legislature; of a deed, written
agreement, or other written contract or will. When a clause is
obscurely written, it ought to be construed in such a way as to
agree with what precedes and what follows, if possible. Vide Dig.
50, 17, 77; Construction; Interpretation.
CLAUSUM FREGIT, torts, remedies. He broke the close. These
words are used in a writ for an action of trespass to real
estate, the defendant being summonedto answer quare clausum
fregit, that is, why he broke the close of the plaintiff. 3 Bl.
Com. 209.
2. Trespass quare clausum fregit lies for every unlawful
intrusion into land, whether enclosed or not, though only grass
may be trodden. 1 Dev. & Bat. 371. And to maintain this action
there must be a possession in the plaintiff, and a right to that
possession.9 Cowen 39; 4 Yeates, 418; 11 Conn. 60, 10 Conn.
225; 1 John. 511; 12 John. 1834 Watts, 377; 4 Bibb, 218; 15
Pick. 32; 6 Rand. 556; 2 Yeates, 210; 1 Har. & John. 295; 8
Mass. 411.
CLEARANCE, com. law. The name of a certificate given by the
collector of a port, in which is stated the master or commander
(naming him) of a ship or vessel named and described, bound for a
port, named, and having on board goods described, has entered and
cleared his ship or vessel according to law.
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2. The Act of Congress of 2d March, 1790, section 93, directs,
that the master of any vessel bound to a foreign place, shall
deliver to the collector of the dis ot from which such vessel
shall be about to depart, a manifest of all the cargo on board,
and the value thereof, by him subscribed, and shall swear or
affirm to the truth thereof; whereupon the collector shall grant
a clearance for such vessel and her cargo; but without
specifying the particulars thereof in such clearance, unless
required by the master so to do. And if any vessel bound to any
foreign place shall depart on her voyage to such foreign place,
without delivering such a manifest and obtaining a clearance, the
master shall forfeit and pay the sum of five hundred dollars for
every such offence. Provided, anything to the contrary
notwithstanding, the collectors and other officers of the customs
shall pay due regard to the inspection laws of the states in
which they respectively act, in such manner, that no vessel
having on board goods liable to inspection, shall be cleared out,
until the master or other person shall have produced such
certificate, that all such goods have been duly inspected, as the
laws of the respective states do or may require, to be produced
to the collector or other officer of the customs. And provided,
that receipts for the payment of all legal fees which shall have
accrued on any vessel, shall, before any clearance is granted, be
produced to the collector or other officer aforesaid .
3. According to Boulay-Paty, Dr. Com. tome 2, p. 19, the
clearance is imperiously demanded for the safety of the vessel;
for if a vessel should be found without it at sea, it may be
legally taken and brought into some port for adjudication, on a
charge of priacy. Vide Ship's papers.
CLEARING HOUSE, com. law. Among the English bankers, the
clearing house is a place in Lombard street, in London, where
the bankers of that city daily settle with each other the
balances which they owe, or to which they are entitled. Desks are
placed around the room, one of which is appropriated to each
bankiug house, and they are: occupied in alphabetical order. Each
clerk has a box or drawer along side of him, and the name of the
house he represents is inscribed over his head. A clerk of each
house comes in about half-past three o'clock in the afternoon,
and brings the drafts or cheeks on the other bankers, which have
been paid by his house that day, and deposits thein in their
proper drawers. The clerk at the desk credits their accounts
separately which they have against him, as found in the drawer.
Balances are thus struck from all the accounts, and the claims
transferred from one to another, until they are so wound up and
cancelled, that each clerk has only to settle with two or three
others, and the balances are immediately paid. When drafts are
paid at so late an hour that they cannot be cleared that day,
they are sent to the houses on which they are drawn, to be
marked, that is, a memorandum is made on them, and they are to be
cleared the next day. See Gilbert's Practical Treatise on
Banking, pp. 16-20, Babbage on the Economy of Machines, n. 173,
174; Kelly's Cambist; Byles, on Bills, 106, 110; Pulling's
Laws and Customs of London, 437.
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CLEMENCY. The disposition to treat with leniency. See Mercy;
Pardon.
CLEMENTINES, eccl. law. The name usually given to the
collection of decretals or constitutious of Pope Clement V.,
which was made by order of John XXII. his successor, who
published it in 1317. The death of Clement V., which happened in
1314, prevented him from publishing this collection, which is
properly a compilation, as well of the epistles and constitutions
of this pope, as of the decrees of the council of Vienna, over
which he presided. The Clementines are divided in five books, in
which the matter is distributed nearly upon the same plan as the
Decretals of Gregory IX. VideLa Bibliotheque des auteurs
ecclesiastiques, par Dupin.
CLERGY. All who are attached to the ecclesiastical ministry are
called the clergy; a clergyman is therefore an ecclesiastical
minister.
2. Clergymen were exempted by the emperor Constantine from all
civil burdens. Baronius ad ann. 319, §30. Lord Coke says, 2 Inst.
3, ecclesiastical persons have more and greater liberties than
other of the king's subjects, wherein to set down all, would take
up a whole volume of itself.
3. In the United States the clergy is not established by law,
but each congregation or church may choose its own clergyman.
CLERICAL ERROR. An error made by a clerk in transcribing or
otherwise. This is always readily corrected by the court. 2. An
error, for example, in the teste of a fi. fa.; 4 Yeates, 185,
205; or in the teste and return of a vend. exp.; 1 Dall. 197 or
in writing Dowell forMcDowell. 1 Serg. & R. 120; 8 Rep. 162 a;
9 Serg. & R. 284, 5. An error is amendable where there is
something to amend by, and this even in a criminal case. 2 Bin.
5-16; 5 Burr. 2667; 1 Bin. 367-9; Dougl. 377; Cowp. 408. For
the party ought not to be harmed by the omission of the clerk; 3
Bin. 102; even of his signature, if he affixes the seal. 1 Serg.
& R. 97.
CLERK, commerce, contract. A person in the employ of a
merchant, who attends only to a part of his business, while the
merchant himself superintends the whole. He differs from a factor
in this, that the latter wholly supplies the place of his
principal in respect to the property consigned to him. Pard. Dr.
Com. n. 38, 1 Chit. Pract. 80; 2 Bouv. Inst. n. 1287.
CLERK, officer. A person employed in an office, public or
private, for keeping records or accounts. His business is to
write or register, in proper form, the transactions of the
tribunal or body to which he belongs. Some clerks, however, have
little or no writing to do in their offices, as, the clerk of the
market, whose duties are confined chiefly to superintending the
markets. In the English law, clerk also signifies a clergyman.
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CLERK, eccl. law. Every individual, who is attached to the
ecclesiastical state, and who has submitted to the ceremony of
the tonsure, is a clerk.
CLIENT, practice. One who employs and retains an attorney or
counsellor to manage or defend a suit or action in which he is a
party, or to advise him about some legal matters.
2. The duties of the client towards his counsel are, 1st. to
give him a written authority, 1 Ch. Pr. l9; 2. to disclose his
case with perfect candor3. to offer spontaneously, advances of
money to his attorney; 2 Ch. Pr. 27; 4. he should, at the end
of the suit, promptly pay his attorney his fees. Ib. His rights
are, 1. to be diligently served in the management of his business
2. to be informed of its progress and, 3. that his counsel shall
not disclose what has been professionally confided to him. See
Attorney at law; Confidential communication.
CLOSE. Signifies the interest in the soil, and not merely a
close or enclosure in the common acceptation of the term. Doct. &
Stud. 307 East, 207 2 Stra. 1004; 6 East, 1541 Burr. 133 1 Ch.
R. 160.
2. In every case where one man has a right to exclude another
from his land, the law encircles it, if not already enclosed,
with an imaginary fence; and entitles him to a compensation in
damages for the injury he sustains by the act of another passing
through his boundary, denominating the injurious act a breach of
the enclosure. Hamm. N. P. 151; Doct. & Stud. dial. 1, c. 8, p.
30; 2 Whart. 430.
3. An ejectment will not lie for a close. 11 Rep. 55; 1
Rolle's R. 55 Salk. 254 Cro. Eliz. 235; Adams on Eject. 24.
CLOSE ROLLS, or close writs, Eng. law. Writs containing, grants
from the crown, to particular persons, and for particular
purposes, and, not being intended for public inspection, are
closed up and sealed on the outside, and for that reason called
close writs ,in contradistinction. to grants relating to the
public in general, which are left open and not sealed up, and are
called letters patent. (q. v.) 2 Bl. Com. 346.
CLOSED DOORS. Signifies that something is done privately. The
senate sits with closed doors on executive business.
2. In general the legislative business of the country is
transacted openly. And the constitution and laws require that
courts of justice shall be open to the public.
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CLUB. An association of persons.It differs from a partnersbip
in this, that the members of a club have no authority to bind
each other further than they are authorized, either expressly or
by implication, as each other's agents in the particular
transaction; whereas in trading associations, or common
partnerships, one partner may bind his co-partners, as each has a
right of property in the whole. 2 Mees. & Welsb. 172; Colly,
Partn. 31; Story, Partn. 144; Wordsworth on Joint Stock
Companies, 154, et seq.; 6 W. & S. 67; 3, W. & S. 118.
CO. A prefix or particle in the nature of an inseparable
proposition, signifying with or in conjunction. Con and the Latin
cum are equivalent, as, co-executors, co-obligor. It is also used
as an abbreviation for company as, John Smith & Co.
COADJUTOR, eccl. law. A fellow helper or assistant;
particularly applied to the assistant of a bishop.
COAL NOTE, Eng. law. A species of promissory note authorized by
the st. 3 Geo. H., c. 26, SSSS 7 and 8, which, having these words
expressed therein, namely, " value received in coals," are to be
protected and noted as inland bills of exchange.
COALITION, French law. By this word is understood an unlawful
agreement among several persons, not to do a thing except on some
conditions agreed upon.
2. The most usual coalitions are, 1st. those which take place
among master workmen, to reduce, diminish or fix at a low rate
the wages of journeymen and other workmen; 2d. those among
workmen or journeymen, not to work except at a certain price.
These offences are punished by fine and imprisonment. Dict. de
Police, h. t. In our law this offence is known by the name of
conspiracy. (q. v.)
CO-ADMINISTRATOR. One of several administrators. In general,
they have, like executors, the power to act singly to the
personal estate of the intestate. Vide Administrator.
CO-ASSIGNEE. One who is assignee with another.
2. In general, the rights and duties of co-assignees are equal.
CO-EXECUTOR. One who is executor of a will in company with
another. In general each co-executor has the full power over the
personal estate of the testator, that all the executors have
jointly. Vide Joint Executors. But one cannot bring suit without
joining with the others.
COAST. The margin of a country bounded by the sea. This term
includes the natural appendages of the territory which rise out
of the water, although they are not of sufficient firmness to be
inhabited or fortified. Shoals perpetually covered with water are
not, however, comprehended under the name of coast. The small
islands, situate at the mouth of the Mississippi, composed of
earth and trees drifted down by the river, which are not of
consistency enough to support the purposes of life, and are
uninhabited, though resorted to for shooting birds, were held to
form a part of the coast. 5 Rob. Adm. R. 385. (c).
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COCKET, commerce. In England the office at the custom house,
where the goods to be exported are entered, is so called, also
the custom house seal, or the parchment sealed and delivered by
the officers of customs to merchants, as a warrant that their
goods are customed. Crabbe's Tech. Dict.
COCKETTUM, commerce. In the English law this word signifies, 1.
the custom- house seal; 2. the office at the custom where
cockers are to be procured. Crabbe's Tech. Dict.
CODE, legislation. Signifies in general a collection of laws.
It is a name given by way of eminence to a collection of such
laws made by the legislature. Among the most noted may be
mentioned the following:
CODES, Les Cing Codes; French law. The five codes.
2. These codes are, 1st. Code Civil, which is divided into
three books; book 1, treats of persons, and of the enjoyment and
privation of civil rights; book 2, of property and its different
modifications; book 3, of the different ways of acquiring
property. One of the most perspicuous and able, commentators on
this code is Toullier, frequently cited in this work.
3. - 2d. Code de procedure civille, which is divided into two
parts. Part 1, is divided into five books; 1. of justices of
the. peace; 2. of inferior tribunals; 3. of royal courts; 4.
of extraordinary means of proceeding; 5. of execution and
judgment. Part 2, is divided into three books; 1. of tender and
consignation; 2. of process in relation to the opening of a
succession; 3. of arbitration.
4. - 3d. Code de Commerce, in four books; 1. of commerce in
general; 2. of maritime comraerce; 3. of failures and
bankruptcy; 4. of commercial jurisdiction. Pardessus is one of
the ablest commentators on this code.
5. - 4th. Code d'Instructions Criminelle, in two books; 1. of
judiciary police, and its officers; 2. of the administration of
justice.
6.-5th. Code Penal, in four books; 1. of punishment in
criminal and correctional cases, and their effects; 2. of the
persons punishable, excusable or responsible, for their crimes or
misdemeanors; 3. of crimes, misdemeanors, (delits,) and their
punishment; 4. of contraventions of police, and their
punishment. For the history of these codes, vide Merl. Rep. h.
t.; Motifs, Rapports, Opinions et Discours sur les Codes;
Encyclop. Amer. h. t.
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7. Henrion de Pansey, late a president of the Court of
Cassation, remarks in reference to these codes: "In the midst of
the innovations of these later times, a system of uniformity has
suddenly engrossed all minds, and we have had imposed upon us the
same weights, the same measures, the same laws, civil, criminal,
rural and commercial. These new codes, like everything which
comes from the hand of man, have imperfections and obscurities.
The administration of them is committed to nearly thirty
sovereign courts and a multitude of petty tribunals, composed of
only three judges, and yet are invested with the right of
determining in the last resort, under many circumstances. Each
tribunal, the natural interpreter of these laws, applies them
according to its own view, and the new codes were scarcely in
operation before this beautiful system of uniformity became
nothing more than a vain theory. Authorite Judiciaire, c. 31, s.
10.
CODE HENRI. A digest of the laws of Hayti, enacted by Henri,
king of Hayti. It is based upon the Code Napoleon, but not
servilely copied. It is said to be judiciously adapted to the
situation of Hayti. A collection of laws made by order of Henry
III of France, is also known by the name of Code Henri.
CODE, JUSTINIAN, civil law. A collection of the constitutions
of the emperors, from Adrian to Justinian; the greater part of
those from Adrian to Constantine are mere rescripts; those from
Constantine to Justinian are edicts or laws, properly speaking.
2. The code is divided into twelve books, which are subdivided
into titles, in which the constitutions are collected under
proper heads. They are placed in chronological order, but often
disjointed. At the head of each constitution is placed the name
of the emperor who is the author, and that of the person to whom
it is addressed. The date is at the end. Several of these
constitutions, which were formerly in the code were lost, it is
supposed by the neglect of "copyists. Some of them have been
restored by modern authors, among whom may be mentioned
Charondas, Cugas, and Contius, who translated them from Greek,
versions.
CODE, OF LOUISIANA. In 1822, Peter Derbigny, Edward Livingston,
and Moreau Lislet, were selected by the legislature to revise and
amend the civil code, and to add to it sucb laws still in force
as were not included therein. They were authorized to add a
system of commercial law, and a code of practice. The code the
prepared having been adopted, was promulgated in 1824, under the
title of the " Civil Code of the State of Louisiana."
2. The code is based on the Code Napoleon, with proper and
judicious modifications, suitable for the state of Louisiana. It
is composed of three books: 1. the first treats of persons; 2.
the second of tbings, and of the different modifications of
property; 3. and the third of the different modes of acquiring
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the property of things. It contains 3522 articles, numbered from
the beginning, for the convenience of reference.
3. This code, it is said, contains many inaccurate definitions.
The legislature modified and changed many of the provisions
relating to the positive legislation, but adopted the definitions
and abstract doctrines of the code without material alterations.
From this circumstance, as well as from the inherent difficulty
of the subject, the positive provisions of the code are often at
variance with the theoretical part, which was intended to
elucidate them. 13 L. R. 237.
4. This code went into operation on the 20th day of May,. 1825.
11 L. R. 60. It is in both the French and English languages; and
in construing it, it is a rule that when the expressions used in
the French text of the code are more comprehensive than those
used in English, or vice versa, the more enlarged sense will be
taken, as thus full effect will be given to both clauses. 2 N. S.
582.
CODE, NAPOLEON. The Code Civil of France, enacted into law
during the reign of Napoleon, bore his name until the
restoration of the Bourbons when it was deprived of that name,
and it is now cited Code Civil.
CODE PAPIRIAN. The name of a collection of the Roman laws,
promulgated by Romulus, Numa, and other kings who governed. Rome
till the time of Tarquin, the Proud. It was so called in honor if
Sextus Parrius, the compiler. Dig. 1, 2, 2.
CODE PRUSSIAN. Allgemeines Landrecht. This code is also known
by the name of Codex Fredericianus, or Frederician code. It was
compiled by order of Frederic H., by the minister of justice,
Samuel V. Cocceji, who completed, a part of it before his death,
in 1755. In 1780, the work was renewed under the superintendence
of the minister Von Carmer, and prosecuted with unceasing
activity and was published from 1784 to 1788, in six parts. The
opinions of those who understood the subject were requested, and
prizes offered on the best commentaries on it; and the whole was
completed in June, 1791, under the title " General Prussian
Code."
CODE THEODOSIAN. This code, which originated in the eastern
empire, was adopted in the Western empire towards its decline. It
is a collection of the legislation of the Christian emperors,
from and including Constantine to Theodosius, the Younger; it is
composed of sixteen books, the edicts, acts, rescripts, and
ordinances of the two empires, that of the east and that of the
west.
CO-DEFENDANT. One who is made defendant in an action with
another person.
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CODEX. Literally, a volume or roll. It is particularly applied
to the volume of the civil law, collected by the emperor
Justinian, from all pleas and answers of the ancient lawyers,
which were in loose scrolls or sheets of parchment. These he
compiled into a book which goes by the name of Codex.
CODICIL, devises. An addition or supplement to a will; it must
be executed with the same solemnities. A codicil is a part of the
will, the two instruments making but one will. 4 Bro. C. C. 55;
2 Ves. sen. 242 4 Ves. 610; 2 Ridgw. Irish P. C. 11, 43.
2. There may be several codicils to one will, and the whole
will be taken as one: the codicil does not, consequently, revoke
the will further than it is in opposition to some of its
particular dispositions, unless there be express words of
revocation. 8 Cowen, Rep. 56.,
3. Formerly, the difference between a will and a codicil
consisted in this, that in the former an executor was named,
while in the latter none was appointed. Swinb. part 1, s. 5, pl.
2; Godolph. Leg. part 1, c. 6, s. 2. This is the distinction of
the civil law, and adopted by the canon law. Vide Williams on
Wills, ch. 2; Rob. on Wills, 154, n. 388, 476; Lovelass on
Wills, 185, 289 4 Kent, Com. 516; 1 Ves. jr. 407, 497; 3 Ves.
jr. 110; 4 Ves. jr. 610; 1 Supp. to Ves. jr. 116, 140.
4. Codicils were chiefly intended to mitigate the strictness of
the ancient Roman law, which required that a will should be
attested by seven Roman citizens, omni exceptione majores. A
legacy could be bequeathed, but the heir could not be appointed
by codicil, though he might be made heir indirectly by way of
fidei commissum.
5. Codicils owe their origin to the following circumstances.
Lucius Lentulus, dying in Africa, left. codicils, confirmed by
anticipation in a will of former date, and in those codicils
requested the emperor Augustus, by way of fidei commissum, or
trust, to do something therein expressed. The emperor carried
this will into effect, and the daughter of Lentulus paid legacies
which she would not otherwise have been legally bound to pay.
Other persons made similar fidei-commissa, and then the emperor,
by the advice of learned men whom he consulted, sanctioned the
making of codicils, and thus they became clothed with legal
authority. Just. 2, 25; Bowy. Com. 155, 156.
6. The form of devising by codicil is abolished in Louisiana;
Code, 1563; and whether the disposition of the property be made
by testament, under this title, or under that of institution of
heir, of legacy, codicil, donation mortis causa, or under any
other name indicating the last will, provided it be clothed with
the forms required for the validity of a testament, it is, as far
as form is concerned, to be considered a testament. Ib. Vide 1
Brown's Civil Law, 292; Domat, Lois Civ. liv. 4, t. 1, s. 1;
Lecons Element, du Dr. Civ. Rom. tit. 25.
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COERCION, criminal law, contracts. Constraint; compulsion;
force.
2. It is positive or presumed. 1. Positive or direct coercion
takes place when a man is by physical force compelled to do an
act contrary to his will; for example, when a man falls into the
hands of the enemies of his country, and they compel him, by a
just fear of death, to fight against it.
3. - 2. It is presumed where a person is legally under
subjection to another, and is induced, in consequence of such
subjection, to do an act contrary to his win. A married woman,
for example, is legally under the subjection of her husband, and
if in his company she commit a crime or offence, not malum in se,
(except the offence of keeping a bawdy-house, In which case she
is considered by the policy of the law as a principal, she is
presumed to act under this coercion.
4. As will (q. v.) is necessary to the commission of a crime,
or the making of a contract, a person coerced into either, has no
will on the, subject, and is not responsible. Vide Roscoe's Cr.
Ev. 7 85, and the cases there cited; 2 Stark. Ev. 705, as to
what will, amount to coercion in criminal cases.
CO-EXECUTOR. One who is executor with another.
2. In general, the rights and duties of co-executors are equal.
COGNATION, civil law. Signifies generally the kindred which
exists between two persons who are united by ties of blood or
family, or both.
2. Cognation is of -three kinds: natural, civil, or mixed.
Natural cognation is that which is alone formed by ties of blood;
such is the kindred of those who owe their origin to an illicit
connexion, either in relation to their ascendants or collaterals.
3. Civil cognation is that which proceeds alone from the ties
of families as the kindred between the adopted father and the
adopted child.
4. Mixed cognation is that which unites at the same time the
ties of blood and family, as that which exists between brothers,
the issue of the same lawful marriage. 6; Dig. 38, 10.
COGNATI, cognates. This term occurs frequently in the Roman
civil law, and denotes collateral heirs through females. It is
not used in the civil law as it now prevails in France. In the
common law it has no technical sense, but as a word of discourse
in English it signifies, generally, allied by blood, related in
origin, of the same family. See Vicat, ad verb.; also, Biret's
Vocabulaire.
COGNISANCE, pleading. Where the defendant in an action of
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replevin (not being entitled to the distress or goods which are
the subject of the replevin) acknowledges the taking of the
distress, and insists that such taking was legal, not because he
himself had a right to distrain on his own account, but because
he made the distress by the command of another, who had a right
to distrain on the goods which are the subject of the suit. Lawes
on Pl. 35, 36; 4 Bouv. Inst. n. 3571.
COGNISANCE, practice. Sometimes signifies jurisdiction and
judicial power, and sometimes the hearing of a matter judicially.
It is a term used in the acknowledgment of a fine. See Vaughan's
Rep. 207.
COGNISANCE OF PLEAS, Eng. law. A privilege granted by the king
to a city or town, to hold pleas within the same; and when any
one is impleaded in the courts at Westminster, the owner of the
franchise may demand cognisance of the plea. T. de la Ley.
COGNISEE. He to whom a fine of lands, &c. is acknowledged. See
Cognisor.
COGNISOR, English law. One who passes or acknowledges,a fine of
lands or tenements to another, in distinction from the cogzisee,
to whom the fine of the lands, &c. is acknowledged.
COGNITIONIBUS ADMITTENDIS, English law, practice. A writ to a
justice ,or other person, who has power to take a fine, and
having taken the acknowledgment of a fine, delays to certify it
in the court of common pleas, requiring him to do it. Crabbe's
Tech. Dict.
COGNOMEN. A Latin word, which signifies a family name. The
praenomen among the Romans distinguished the person, the nomen,
the gens, or all the kindred descended from a remote common stock
through males, while the cognomen denoted the particular family.
The agnomen was added on account of some particular event, as a
further distinction. Thus, in the designation Publius Cornelius
Scipio Africanus, Publius is the proenomen, Cornelius is the
nomen, Scipio the cognomen, and Africanus the agnomen. Vicat.
These several terms occur frequently in the Roman laws. See Cas.
temp. Hardw. 286; 1 Tayl. 148. See Name; Surname.
COGNOVIT, contr. leading. A written confession of an action by
a defendant, subscribed but not sealed, and authorizing the
plaintiff to sign judgment and issue execution, usually for a sum
named.
2. It is given after the action is brought to save expense.
3. It differs from a warrant of attorney, which is given before
the commencement of any action, and is under seal. A cognovit
actionem is an acknowledgment and confession of the plaintiff's
cause of action against the defendant to be just and true. Vide 3
Ch. Pr. 664; 3 Bouv. Inst. n. 8299.
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COHABITATION. Living together.
2. The law presumes that husband and wife cohabit, even after a
voluntary separation has taken place between them; but where
there has been a divorce a mensa et thoro, or a sentence of
separation, the presumption then arises that they have obeyed the
sentence or decree, and do not live together.
3. A criminal cohabitation will not be presumed by the proof of
a single act of criminal intercourse between a man and woman not
married. 10 Mass. R. 153.
4. When a woman is proved to cohabit with a man and to assume
his name with his consent, he will generally be responsible for
her debts as if she had been his wife; 2 Esp. R. 637; 1 Campb.
R. 245; this being presumptive evidence of marriage; B. N. P.
114; but this liability will continue only while they live
together, unless she is actually his were. 4 Campb. R. 215.
5. In civil actions for criminal conversation with the
plaintiff's wife, after the husband and wife have separated, the
plaintiff will not in general be entitled to recover. 1 Esp. R.
16; S. C. 5 T. R. 357; Peake's Cas. 7, 39; sed vide 6 East,
248; 4 Esp. 39.
CO-HEIR. One of several men among whom an inheritance is to be
divided.
CO-HEIRESS. A woman who inherits an estate in common with other
women. A joint heiress.
COIF. A head-dress. In England there are certain serjeants at
law, who are called serjeants of the coif, from the lawn coif
they wear on their heads under their thin caps when they are
admitted to that order.
COIN, commerce, contracts. A piece of gold, silver or other
metal stamped by authority of the government, in order to
determine its value, commonly called money. Co. Litt. 207;
Rutherf. Inst. 123. For the different kinds of coins of the
United States, see article Money. As to the value of foreign
coins, see article Foreign Coins.
COLLATERAL, collateralis. From latus, a side; that which is
sideways, and not direct.
COLLATERAL ASSURANCE, contracts. That which is made over and
above the deed itself.
COLLATERAL FACTS evidence. Facts unconnected with the issue or
matter in
dispute.
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2. As no fair and reasonable inference can be drawn from such
facts, they are inadmissible in evidence, for at best they are
useless, and may be mischievous, because they tend to distract
the attention of the jury, and to mislead them. Stark. Ev. h. t.;
2 Bl. Rep. 1169; 1 Stark Ev. 40; 3 Bouv. Inst. n. 3087.
3. It is frequently difficult to ascertain a priori, whether a
particular fact offered in evidence, will, or will not clearly
appear to be material in the progress of the cause, and in such
cases it is usual in practice for the court to give credit to the
assertion of the counsel who tenders such evidence, that the
facts will turn out to be material; but this is always within
the sound discretion of the court. It is the duty of the counsel,
however, to offer evidence, if possible, in such order that each
part of it will appear to be pertinent and proper at the time it
is offered; and it is expedient to do so, as this method tends
to the success of a good cause.
4. When a witness is cross-examined as to collateral facts, the
party cross-examining will be bound by the answer, and he cannot,
in general, contradict him by another witness. Rosc. Ev. l39.
COLLATERAL ISSUE, practice, pleading. Where a criminal convict
pleads any matter, allowed by law, in bar of execution; as
pregnancy, a pardon, and the like.
COLLATERAL KINSMEN, descent, distribution. Those who descend
from one and the same common ancestor, but not from one another;
thus brothers and sisters are collateral to each other; the
uncle and the nephew are collateral kinmen, and cousins are the
same. The term collateral is used in opposition to the phrase
lineal kinsmen. (q. v.)
COLLATERAL SECURITY, contracts. A separate obligation attached
to another contract, to guaranty its performance. By this term is
also meant the transfer of property or of other contracts to
insure the performance of a principal engagement. The property or
securities thus conveyed are also called collateral securities. 1
Pow. Mortg. 393; 2 Id. 666, n. 871; 3 Id. 944, 1001.
COLLATERAL WARRANTY, contracts, descent. Where the heir's title
to the land neither was, nor could have been, derived from the
warranting ancestor; and yet barred the heir from ever claiming
the land, and also imposed upon him the same obligation of giving
the warrantee other lands, in case of eviction, as if the
warranty were lineal, provided the heir had assets. 4 Cruise,
Real Prop. 436.
2. The doctrine of collateral warranty, is, according to
Justice Story, one of the most unjust, oppressive and
indefensible, in the whole range of the common law. 1 Sumn. R.
262.
3. By the statute of 4 & 5 Anne, c. 16, §21, all collateral
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warranties of any land to be made after a certain day, by any
ancestor who has no estate of inheritance in possession in the
same, were made void against the heir. This Statute has been
reenacted in New. York; 4 Kent, Com. 460, 3d ed.; and in New
Jersey. 3 Halst. R. 106. It has been adopted and is in force in
Rhode Island; 1 Sumn. R. 235; and in Delaware. Harring. R. 50.
In Kentucky and Virginia, it seems that collateral warranty binds
the heir to the extent of assets descended. 1 Dana, R. 59. In
Pennsylvania, collateral warranty of the ancestor, with
sufficient real assets descending to the heirs, bars them from
recovering the lands warranted. 4 Dall. R. 168; 2 Yeates, R.
509; 9 S. & R. 275. See 1 Sumn. 262; 3 Halst. 106; Harring.
50; 3 Rand. 549; 9 S. & R. 275; 4 Dall. 168; 2 Yeates, 509;
1 Dana, 50.
COLLATIO BONORUM, descent, distribution. Where a portion or
money advanced to a son or daughter, is brought into botchpot, in
order to have an equal distributive share of the ancestor's
personal estate. The same rule obtains in the civil law. Civil
Code of Louis. 1305; Diet. de Jur. mot Collation; Merlin Rep.
mot Collation.
COLLATION, descents. A term used in the laws of Louisiana.
Collation -of goods is the supposed or real return to the mass of
the succession, which an heir makes of the property he received
in advance of his share or otherwise, in order that such property
may be divided, together with the other effects of the
succession. Civil Code of Lo. art. 1305.
2. As the object of collation is to equalize the heirs, it
follows that those things are excluded from collation, which the
heir acquired by an onerous title from the ancestor, that is,
where he gave a valuable consideration for them. And upon the
same principle, if a co-heir claims no share of the estate, he is
not bound to collate. Qui non vult hereditatem, non cogitur ad
collationem. See Id. art. 1305 to 1367; And Hotchpot.
COLLATION, eccl. law. The act by which the bishop, who has the
bestowing of a benefice, gives it to an incumbent. T. L.
COLLATION, practice. The comparison of a copy with its
original, in order to ascertain its correctness and conformity;
the report of the officer who made the comparison, is also called
a collation.
COLLATION OF SEALS. Where, on the same label, one seal was set
on the back or reverse of the other, this was said to be a
collation of seals. Jacob. L. D. h. t.
COLLECTOR, officer. One appointed to receive taxes or other
impositions; as collector of taxes; collector of militia
fines, &c. A collector is also a person appointed by a private
person to collect the credits due him. Metc. & Perk. Dig. h. t.
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COLLECTORS OF THE CUSTUMS. Officers of the United States,
appointed for the term of four years, but removable at the
pleasure of the president. Act of May 15, 1820, sect. 1, 3
Story's U. S. Laws, 1790.
2. The duties of a collector of customs are described in
general terms, as follows: " He shall receive all reports,
manifests and documents, to be made or exhibited on the entry of
any ship or vessel, according to the regulations of this act
shall record in books, to be kept for the purpose, all manifests;
shall receive the entries of all ships or vessels, and of the
goods, wares and merchandise imported in them; shall, together
with the naval officer, where there is one, or alone, where there
is none, estimate the amount of duties payable thereupon,
endorsing the said amounts upon the respective entries; shall
receive all moneys paid for duties, and shall take bonds for
securing the payment thereof; shall grant all permits for the
unlading and delivery of goods; shall, with the approbation of
the principal officer of the treasury department, employ proper
persons as weighers, gaugers, measurers and inspectors, at the
several ports within his district; and also, with the like
approbation, provide, at the public expense, storehouses for the
safe keeping of goods, and such scales, weights and measures, as
may be necessary." Act of March 2,1799) s. 21, 1 Story, U. S.
Laws, 590. Vide, for other duties of collectors, 1 Story, U. S.
Laws, 592, 612, 620, 632, 659, and vol. 3, 1650, 1697, 1759,
1761, 1791, 1811, 1848, 1854; 10 Wheat. 246.
COLLEGE. A civil corporation, society or company, authorized by
law, having in general a literary object. In some countries by
college is understood the union of certain voters in *one body;
such bodies are called electoral colleges; as, the college of
electors or their deputies to the diet of Ratisbon; the college
of cardinals. The term is used in the United States; as, the
college of electors of president and vice-president, of the
United States. Act of Congress of January 23, 1845.
COLLISION, maritime law. It takes place when two ships or other
vessels run foul of each other, or when one runs foul of the
other. In such cases there is almost. always a damage incurred.
2. There are four possibilities under which an accident of this
sort may occur. 1. It may happen without blame being imputable to
either party, as when the loss is occasioned by a storm, or any
other vis major; in that case the loss must be borne by the
party on whom it happens to light, the other not being
responsible to him in, any degree.
3. - 2. Both parties may be to blame, as when there has been a
want of due diligence or of skill on both sides; in such cases,
the loss must be apportioned between them, as having been
occasioned by the fault of both of them. 6 Whart. R. 311..
4. - 3. The suffering party may have been the cause of the
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injury, then he must bear the loss.
5. - 4. It may have been the fault of the ship which ran down
the other; in this case the injured party would be entitled to
an entire corapensation from the other. 2 Dodson's Rep. 83, 85;
3 Hagg. Adm. R. 320; 1 .How. S. C. R. 89. The same rule is
applied to steamers.. Id. 414.
6. - 5. Another case has been put, namely, when there has been
some fault or neglect, but on which side the blame lies, is
uncertain. In this case, it does not appear to be settled whether
the loss shall be apportioned or borne by the suffering party
opinions on this subject are divided.
7. A collision between two ships on the high seas, whether it
be the result of accident or negligence, is, in all cases, to be
deemed a peril of the seas within the meaning of a policy of
insurance. 2 Story, R. 176; 3 Sumn. R. 889. Vide, generally,
Story, Bailm. §607 to 612; Marsh.. Ins. B. 1, c. 12, s. 2;
Wesk. Ins. art. Running Foul; Jacobsen's Sea Laws, B. 4, c. 1;
4 Taunt. 126; 2 Chit. Pr. 513, 535; Code de Com. art. 407;
Boulay-Paty, Cours de Dr. Commercial, tit. 12, s. 6; Pard. n.
652 to 654; Pothier, Avaries, n. 155; 1 Emerig. Assur. ch. 12,
§14.
COLLISTRIGIUM. The pillory.
COLLOCATION, French law. The act by which the creditors of an
estate are arranged in the order in which they are to be paid
according to law. The order in which the creditors-are placed, is
also called collocation. Merl. Rep. h. t. Vide Marshalling
Assets.
COLLOQUIM, pleading. A discourse a conversation or conference.
2. In actions of slander, it is generally true that an action
does not lie for words, on account of, their being merely
disgraceful to a person in his office, profession or trade;
unless it be averred, that at the time of publishing the words,
there was a colloquium concerning the office, profession or trade
of the plaintiff.
3. In its technical sense, the term colloquium signifies an
averment in a declaration that there was a conversation or
discourse on the part of the defendant, which connects the
slander with the office, profession or trade of the plaintiff;
and this colloquium must extend to the whole of the prefatory
matter to render the words actionable. 3 Bulst. 83. Vide Bac. Ab.
Slander, S, n. 3; Dane's Ab. Index, h. t.; Com. Dig. Action
upon the case for Defamation, G 7, 8, &c.; Stark. on Sland. 290,
et seq.
COLLUSION, fraud. An agreement between two or more persons, to
defraud a person of his rights by the forms of law, or to obtain
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an object forbidden by law; as, for example, where the husband
and wife collude to obtain a divorce for a cause not authorized
by law. It is nearly synonymous with covin. (q. v.)
2. Collusion and fraud of every kind vitiate all acts which are
infected with them, and render them void. Vide Shelf. on Mar. .&
Div. 416, 450; 3 Hagg. Eccl. R. 130, 133; 2 Greenl. Ev. §51;
Bousq. Dict. de Dr. mot Abordage.
COLONEL. An officer in the army, next below a brigadier
general, bears this
title.
COLONY. A union of citizens or subjects who have left their
country to people another, and remain subject to the mother
country. 3 W. C. C. R. 287. The country occupied by the colonists
is also called a colony. A colony differs from a possession, or a
dependency. (q. v.) For a history of the American colonies, the
reader is referred to Story on the Constitution, book I.; 1
Kent, Com. 77 to 80; 1 Dane's Ab. Index, b. t.
COLOR, pleading. It is of two kinds, namely, express color, and
implied color. 2. Express color. This is defined to be a feigned
matter, pleaded by the defendant, in an action of trespass, from
which the plaintiff seems to have a good cause of action, whereas
he has in truth only an appearance or color of cause. The
practice of giving express color in pleas, obtained in the mixed
actions of assize, the writ of entry in the nature of assize, as
well as in the personal action of trespass. Steph. on Plead. 230;
Bac. Ab. Trespass, 14.
3. It is a general rule in pleading that no man shall be
allowed to plead specially such plea as amounts to the general
issue, or a total denial of the charges contained in the
declaration, and must in such cases plead the general issue in
terms, by which the whole question is referred to the jury; yet,
if the defendant in an action of trespass, be desirous to refer
the validity of his title to the court, rather than to the jury;
he may in his plea stated his title specially, by expressly
giving color of title to the plaintiff, or supposing him to have
an appearance of title, had indeed in point of law, but of which
the jury are not competent judges. 3 Bl. Com. 309. Suppose, for
example, that the plaintiff wag in wrongful possession of the
close, without any further appearance of title than the
possession itself, at the time of the trespass alleged, and that
the defendants, entered upon him in assertion of their title: but
being unable to set forth this title in the pleading, in
consequence of the objection that would arise for want of color,
are driven to plead the general issue of not guilty. By this plea
an issue is produced whether the defendants are-guilty or not of
the trespass; but upon the trial of the issue, it will be found
that the question turns entirely upon a construction of law. The
defendants say they are not guilty of the trespasses, because
they are not guilty of breaking the close of the plaintiff, as
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alleged in the declaration; and that they are not guilty of
breaking the close of the plaintiff, because they themselves had
the property in that close; and their title is. this, that the
father of one of the defendants being seised of the close in fee,
gave it in tail to his eldest son, remainder in tail to one of
the defendants; the eldest son was disseised, but made continual
claim till the death of the disseisor; after whose death, the
descent being cast upon the heir, the disseisee entered upon the
heir, and afterwards died, when the remainder took effect in the
said defendant who demised to the other defendant . Now, this
title involves a legal question; namely, whether continual claim
will no preserve the right of entry in the disseisee,
notwithstanding a descent cast on the heir of the disseisor. (See
as to this point, Continual Claim.) The issue however is merely
not guilty, and this is triable by jury; and the effect,
therefore, would be, that a jury would have to decide this
question of law, subject to the direction upon it, which they
would receive from the court. But, let it be supposed that the
defendants, in a view to the more satisfactory decision of the
question, wish to bring it under the consideration of the court
in bank, rather than have it referred to a jury. If they have any
means of setting forth their title specially in the plea, the
object will be attained; for then the plaintiff, if disposed to
question the sufficiently of the title, may demur to the plea,
and thus refer the question to the decision of the judges. But
such plea if pleaded simply, according to the state of the fact,
would be informal for want of color; and hence arises a
difficulty.
4. The pleaders of former days, contrived to overcome this
difficulty in the following singular manner. In such case as that
supposed, the plea wanting implied color, they gave in lieu of it
an express one, by inserting a fictitious allegation of some
colorable title in the plaintiff, which they, at the same time
avoided by the preferable title of the defendant. S Step . Pl.
225 Brown's Entr. 343, for a form of the plea. Plowd. Rep. 22 b.
5. Formerly various suggestions of apparent right, might be
adopted according to the fancy of the pleader; and though the
same latitude is, perhaps, still available, yet, in practice, it
is unusual to resort to any except certain known fictions, which
long usage has applied to the particular case for example, in
trespass to land, the color universally given is that of a
defective charter of the demise. See, in general, 2 Saund. 410;
10 Co. 88; Cro. Eliz. 76; 1 East, 215; Doct. Pl. 17; Doct. &
Stud. lib. 2, c. 53; Bac. Abr. Pleas, I 8; Trespass, I 4; 1
Chit. Pl. 500 Steph. on Pl. 220.
6. Implied color. That in pleading which admits by implication,
an apparent right in the opposite party, and avoids it by
pleading some new matter by which that apparent right is
defeated. Steph. Pl. 225.
7. It is a rule that every pleading by way of confession and
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avoidance, must give color; that is, it must admit an apparent
right in the opposite party, and rely, therefore, on some new
matter by which that apparent right is defeated. For example,
where the defendant pleads a release to an action for breach of
covenant, the tendency of the plea is to admit an apparent right
in the plaintiff, namely, that the defendant did, as alleged in
the declaration, execute the deed and break the covenant therein
contained, and would therefore, prima facie, be liable on that
ground; but shows new matter not before disclosed, by which that
apparent right is done away, namely, that the plaintiff executed
to him a release. Again, if the plaintiff reply that Such release
was obtained by duress, in his, replication, he impliedly admits
that the defendant has, prima facie, a good defence, namely, that
such release was executed as alleged in the plea; and that the
defefadant therefore would be discharged; but relies on new
matter by which the plea is avoided, namely, that the release was
obtained by duress. The plea, in this case, therefore, gives
color to the declaration, and the replication, to the plea. But
let it be supposed that the plaintiff has replied, that the
release was executed by him, but to another person, and not to
the defendant; this would be an informal replication wanting
color; because, if the release were not to the defendant there
would not exist even an apparent defence, requiring the
allegation of new matter to avoid it, and the plea might be
sufficiently answered by a traverse, denying that the deed stated
in the plea is the deed of the plaintiff. See Steph. Pl. 220; 1
Chit. Pl. 498; Lawes, Civ. Pl. 126; Arch. Pl. 211; Doct. Pl.
17; 4 Vin. Abr. 552; Bac. Abr. Pleas, &e. I 8; Com. Dig.
Pleader, 3 M 40, 3-M 41. See an example of giving color in
pleading in the Roman law, Inst. lib. 4, tit 14, De
replicantionibus.
COLOR OR OFFICE, criminal law. A wrong committed by an officer
under the pretended authority of his office; in some cases the
act amounts to a misdemeanor, and the party may then be indicted.
In other cases, the remedy to redress the wrong is by an action.
COLT. An animal of the horse species, whether male or female,
not more than four years old. Russ. & Ry. 416.
COMBAT, Eng. law. The form of a forcible encounter between two
or more persons or bodies of men; an engagement or battle. A
duel.
COMBINATION. A union of different things. A patent may be taken
out for a new combination of existing machinery, or machines. See
2 Mason, 112; and Composition of matter.
2. By combination is understood, in a bad sense, a union of men
for the purpose of violating the law.
COMBUSTIO DOMORUM. Burning of houses; arson. Vide 4 Bl. Com.
372.
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COMES, pleading. In a plea, the defendant says, " And the said
C D, by E F, his attorney, comes, and defends, &c. The word
comes, venit, expresses the appearance of the defendant , in
court. It is taken from the style of the entry of the proceedings
on the record, and formed no part of the viva voce pleading. It
is, accordingly, not considered as, in strictness, constituting a
part of the Plea. 1 Chit. Pl. 411; Steph. Pl. 432.
COMES, offices. A Count. An officer during the middle ages, who
possessed civil and military authority. Sav. Dr. Rom. Moy. age,
n. 80.
2. Vice-comes, the Latin name for sheriff, was originally the
lieutenant of the comes.
COMITATUS. A county. Most of the states are divided into
counties; some, as Louisiana, are divided into parishes.
COMITES. Persons who are attached to a public minister, are so
called. As to their privileges, see 1 Dall. 117; Baldw. 240;
and Ambassador.
COMITY. Courtesy; a disposition to accomodate.
2. Courts of justice in one state will, out of comity, enforce
the laws of another state, when by such enforcement they will not
violate their laws or inflict. an injury on some one of their own
citizens; as, for example, the discharge of a debtor under the
insolvent laws of one state, will be respected in another state,
where there is a reciprocity in this respect.
3. It is a general rule that the municipal laws of a country do
not extend beyond its limits, and cannot be enforced in another,
except on the principle of comity. But when those laws clash and
interfere with the rights of citizens, or the laws of the
countries where the parties to the contract seek to enforce it,
as one or the other must give way, those prevailing where the
relief is sought must have the preference. 2 Mart. Lo. Rep. N. S.
93; S. C. 2 Harr. Cond. Lo. Rep. 606, 609; 2 B. & C. 448, 471;
6 Binn. 353; 5 Crancb, 299; 2 Mass. 84; 6 Mass. 358; 7 Mart.
Lo. R. 318. See Conflict of Laws; Lex loci contractus.
COMMAND. This word has several meanings. 1. It signifies an
order; an apprentice is bound to obey the lawful command of his
master; a constable may command rioters to keep the peace. 2. He
who commands another to do an unlawful act, is accessary to it. 3
Inst. 51, 57; 2 Inst. 182; 1 Hayw.
3. Command is also equivalent to deputation or voluntary
substitution; as, when a master employs one to do a thing, he is
said to have Commanded him to do it; and he is responsible
accordingly. Story Ag. §454, note.
COMMENCEMENT OF A SUIT OR ACTION. The suit is considered as
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commenced from the issuing of the writ; 3 Bl. Com. 273, 285; 7
T. R. 4; 1 Wils. 147; 18 John. 14; Dunl. Pr. 120; 2 Phil. Ev.
95; 7 Verm. R. 426; 6 Monr. R. 560; Peck's R. 276; 1 Pick. R.
202; Id. 227; 2 N. H. Rep. 36; 4 Cowen, R. 158; 8 Cowen, 203;
3 John. Cas. 133; 2 John. R. 342; 3 John. R. 42; 15 John. R.
42; 17 John. R. 65; 11 John. R. 473; and if the teste or date
of the writ be fictitious, the true time of its issuing may be a
and proved, whenever the purposes of justice require it; as in
cases of a plea of tender or of the statute of limitations. Bac.
Ab. Tender D; 1 Stra. 638; Peake's Ev. 259; 2 Saund. 1, n. 1.
In Connecticut, the service of, the writ is the commencement of
the action. 1 Root, R. 487; 4 Conn. 149; 6 Conn. R. 30; 9
Conn. R. 530; 7 Conn. R. 558; 21 Pick. R. 241; 2 C. & M. 408,
492 1 Sim. R. 393. Vide Lis Pendens.
COMENDAM, eccles. law. When a benefice or church living is void
or vacant, it is commended to the. care of some sufficient clerk
to be supplied, until it can be supplied with a pastor. He to
whom the church is thus commended is said to hold in commendam,
and he is entitled to the profits of the living. Rob. 144;
Latch, 236.
2. In Louisiana, there is a species of limited partnership
called a partnership in commendam. It is formed by a contract, by
which one person or partnership agrees to furnish another person
or partnership a certain amount, either in property or money, to
be employed by the person or partnership to whom it is furnished,
in his or their own name or firm, on condition of receiving a
share in the profits, in the proportion determined by the
contract, and of being liable to losses and expenses, to the
amount furnished, and no more. Civ. Code of Lo. 2810. A similar
partnership exists in France. Code de Comm. 26, 33; Sirey, tom.
12, part 2, p. 25. He who makes this contract is called in
respect to those to whom he makes the advance of capital, a
partner in commendam. Civ. Code of Lo. art. 2811.
COMMENDATARY. A person who holds a church living or presentment
in commendam.
COMMENDATION. The act of recommending, praising. A merchant who
merely commends goods he offers for sale, does not by that act
warrant them, unless there is some fraud: simplex commendatio non
obligat.
COMMENDATORS, eccl. law. Secular persons upon whom
ecclesiastical benefices are bestowed, because they were
commended and instructed to their oversight: they are merely
trustees.
COMMERCE, trade, contracts. The exchange of commodities for
commodities; considered in a legal point of view, it consists in
the various agreements which have for their object to facilitate
the exchange of the products of the earth or industry of man,
with an intent to realize a profit. Pard. Dr. Coin. n. 1. In a
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narrower sense, commerce signifies any reciprocal agreements
between two persons, by which one delivers to the other a thing,
which the latter accepts, and for which he pays a consideration;
if the consideration be money, it is called a sale; if any other
thing than money, it is called exchange or barter. Domat, Dr.
Pub. liv. 1, tit. 7, s. 1, n. 2. Congress have power by the
constitution to regulate commerce with foreign nations and among
the several states, and with the Indian tribes. 1 Kent. 431;
Story on Corst. §1052, et seq. The sense in which the word
commerce is used in the constitution seems not only to include
traffic, but intercourse and navigation. Story, §1057; 9 Wheat.
190, 191, 215, 229; 1 Tuck. Bl. App. 249 to 252. Vide 17 John.
R. 488; 4 John. Ch. R. 150; 6 John. Ch. R. 300; 1 Halst. R.
285; Id. 236; 3 Cowen R. 713; 12 Wheat. R. 419; 1 Brock. R.
423; 11 Pet. R. 102; 6 Cowen, R. 169; 3 Dana, R. 274; 6 Pet.
R. 515; 13 S. & R. 205.
COMMISSARIATE. The whole body of officers who act in the
department of the commissary, are called the, commissariate.
COMMISSARY. An officer whose principal duties are to supply the
army witli
provisions.
2. The Act of April 14, 1818, s. 6, requires that the
president, by and with the consent of the senate, shall appoint a
commissary general with the rank, pay, and emoluments of colonel
of ordnance, and as many assistants, to be taken from the
sub-alterns of the line, as the service may require. The
commissary general and his assistants shall perform such duties,
in the purchasing and issuing of rations to the armies of the
United States, as the president may direct. The duties of these
officers are further detailed in the subsequent sections of this
act,, and in the Act of March 2, 1821.
COMMISSION, contracts, civ. law. When one undertakes, without
reward, to do something for another in respect to a thing bailed.
This term is frequently used synonymously with mandate. (q. v.)
Ruth. Inst. 105; Halifax, Analysis of the Civil Law, 70. If the
service the party undertakes to perform for another is the
custody of his goods, this particular sort of, commission is
called a charge.
2. In a commission, the obligation on his part who undertakes
it, is to transact the business without wages, or any other
reward, and to use the same care and diligence in it, as if it
were his own.
3. By commission is also understood an act performed, opposed
to omission, which is the want of performance of such an act;
is, when a nuisance is created by an act of commission, it may be
abated without notice; but when it arises from omission, notice
to remove it must be given before it is abated. 1 Chit. Pr. 711.
Vide dbatement of Nuisances; Branches; Trees.
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COMMISSION, office. Persons authorized to act in a certain
matter; as, such a matter was submitted, to the commission;
there were several meetings before the commission. 4 B. & Cr.
850; 10 E. C. L. R. 459.
COMMISSION, crim. law. The act of perpetrating an offence.
There are crimes of commission and crimes of omission.
C0MMISSION, government. Letters-patent granted by the
government, under the public seal, to a person appointed to an
office, giving him authority to perform the duties of his office.
The commission is not the appointment, but only evidence of it;
and as soon as it is signed and sealed, vests the office in the
appointee. 1 Cranch, 137; 2 N. & M. 357; 1 M'Cord, 233, 238.
See Pet. C. C. R. 194; 2 Summ. 299; 8 Conn. 109; 1 Penn. 297;
2 Const. Rep. 696; 2 Tyler, 235.
COMMISSION, practice. An instrument issued by a court of,
justice, or other competent tribunal, to authorize a person to
take depositions, or do any other act by authority of such court,
or tribunal, is called a commission. For a form of a commission
to take. depositions, see Gresley, Eq. Ev. 72.
COMMISSION OF LUNACY, A writ issued out of chancery, or such
court as may have jurisdiction of the case directed to a proper
officer, to inquire whether a person named therein is a lunatic
or not. 1 Bouv. Inst. n. 382, et seq.
COMMISSION MERCHANT. One employed to sell goods for another on
commission; a factor. He is sometimes called. a consignee, (q.
v.) and the goods he receives are a consignment. 1 Bouv. Inst. n.
1013.
COMMISSION OF REB ELLION, chan. prac. The name of a writ
issuing out of chancery, generally directed to four special
commissioners, named by the plaintiff, commanding them to attach
the defendant wheresoever he may be found within the state, as a
rebel and contemner of the law, so as to have him in chancery on
a certain day therein named. This writ may be issued after an
attachment with proclamation, and a return of non est inventus.
Blake's Ch. Pr. 102; Newl. Ch. Pr. 14.
COMMISSIONER, officer. One who has a lawful commission to
execute a public office. In a more restricted sense it is one who
is authorized to execute. a particular duty, as, commissioner of
the revenue, canal commissioner. The term when used in this
latter sense is not applied, for example, to a judge. There are
commissioners, too, who have no regular commissions and derive
their author from the elections held by the people. County
commissioners, in Pennsylvania, are officers of the latter kind.
COMMISSIONER OF PATENTS. The name of an officer of the United
States whose duties are detailed in the act to promote the useful
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arts, &c., which will be found under the article Patent.
COMMISSIONERS OF BAIL, practice. Officers appointed by some
courts to take recognizances of bail in civil cases.
COMMISSIONERS OF SEWERS, Eng. law. Officers whose duty it is to
repair sea banks aud walls, survey rivers, public streams,
ditches, &c.
C0MMISSlONS, contracts, practice. An allowance of compensation
to an agent, factor, executor, trustee or other person who
manages the affairs of others, for his services in performing the
same.
2. The right of agents, factors or other contractors to
commissions, may either be the subjeot of a special contract, or
rest upon the quantum meruit. 9 C. & P. 559; 38 E. C. L. R. 227;
3 Smith's R. 440; 7 C. & P. 584; 32 E. C. L. R. 641; Sugd.
Vend. Index, tit. Auctioneer
3. This compensation is usually the allowance of a certain, per
centage upon the actual amount or value of the business done.
When there is a usage of trade at the particular place, or in the
particular business in which the agent is engaged, the amount of
commissions allowed to auctioneers, brokers and factors, is
regulated by such usage. 3 Chit. Com. Law, 221; Smith on Mere.
Law, 54; Story, Ag. §326; 3 Camp. R. 412; 4 Camp. R. 96; 2
Stark. 225, 294.
4. The commission of an agent is either ordinary or del
credere. (q. v.) The latter is an increase of the ordinary
commission, in consideration of the responsibility which the
agent undertakes, by making himself answerable for the solvency
of those with whom he contracts. Liverm. Agency, 3, et seq.;
Paley, Agency, 88, et seq.
5. In Pennsylvania, the amount missions allowed to executors
and trustees is generally fixed at five per centum on the sum
received and paid out, but this is varied according to
circumstances. 1 9 S. & R. 209, 223; 4 Whart. 98; 1 Serg. &
Rawle, 241. In England, no commissions are allowed to executors
or trustees. 1 Vern. R. 316, n. and the cases there: cited. 4
Ves. 72, n.
TO COMMIT. To send a person to prison by virtue of a warrant or
other lawful writ, for the commission of a crime, offence or
misdemeanor, or for a contempt, or non-payment of a debt.
COMMITMENT, criminal law, practice. The warrant. or order by
which a court or magistrate directs a ministerial officer to take
a person to prison. The commitment is either for further hearing,
(q. v.) or it is final.
2. The formal requisites of the commitment are, 1st. that it be
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in writing, under hand, and seal, and show the authority of the
magistrate, and the time and place of making it. 3 Har. & McHen.
113; Charl. 280; 3 Crancb, R. 448; see Harp. R. 313. In this
case it is said a seal is not indispensable.
3. - 2d. It must be made in the name of the United States, or
of the commonwealth, or people, as required by the constitution
of the United States or, of the several states.
4. - 3d. It should be directed to the keeper of the prison, and
not generally to carry the party to prison. 2 Str. 934; 1 Ld.
Raym. 424.
5. - 4th. The prisoner should be described by his name and
surname, or the name he gives as his.
6. - 5th. The commitment ought to state that the party has been
charged on oath. 3 Cranch, R.448. But see 2 Virg. Cas. 504; 2
Bail. R. 290.
7. - 6th. The particular crime charged against the prisoner
should be mentioned with convenient certainty. 3 Cranch, R. 449;
11 St. Tr. 304. 318; Hawk. B. 2, c. 16, s. 16 Chit. Cr. Law,
110.
8. - 7th. The commitment should point out the place of
imprisonment, and not merely direct that the party be taken to
prison. 2 Str. 934; 1 Ld. Ray. 424.
9. - 8th. In a final commitment, the command to the keeper of
the prison should be to keep the prisoner "until he shall be
discharged by due course of law," when the offence is not
bailable; when it is bailable the gaoler should be, directed to
keep the prisoner in his " said custody for want of sureties, or
until he shall be discharged by due course of law." When the
commitment is not final, it is usual to commit the prisoner " for
further hearing." The commitment is also called a mittimus. (q.
v.)
10. The act of sending a person to prison charged with the
commission of a crime by virtue of such a warrant is also called
a commitment. Vide, generally, 4 Vin. Ab. 576; Bac. Ab. h. t.;
4 Cranch, R. 129; 4 Dall. R. 412; 1 Ashm. R. 248; 1 Cowen, R.
144; 3 Conn. R. 502; Wright, R. 691; 2 Virg. Cas. 276;
Hardin, R. 249; 4 Mass. R. 497; 14 John. R. 371 2 Virg. Cas.
594; 1 Tyler, R. 444; U. S. Dig. h. t.
COMMITTEE, practice. When a person has been found non compos,
the law requires that a guardian should be appointed to take care
of his person and estate; this guardian is called the committee.
2. It is usual to select the committee from the next of kin;
Shelf. on Lun. 137; and in case of the lunacy of the husband or
wife, the one who is of sound mind is entitled, unless under very
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special circumstances, to be the committee of the other. Id. 140.
This is the committee of the person. For committee of the estate,
the heir at law is most favored. Relations are referred to
strangers, but the latter may be appointed. Id. 144.
3. It is the duty of the committee of the person, to take care
of the lunatic; and the committee of the estate is bound to
administer the estate faithfully, and to account for his
administration. He cannot in general, make contracts in relation
to the estate of the lunatic, or bind it, without a Special order
of the court or authority that appointed him. Id. 179; 1 Bouv.
Inst. n. 389-91.
COMMITTEE, legislation. One or more members of a legislative
body to whom is specially referred some matter before that body,
in order that they may investigate and examine into it and report
to those who delegated this authority to them.
COMMITTITUR PIECE, Eng. law. An instrument in writing, on paper
or parchment, which charges a person already in prison, in
execution at the suit of, the person who arrested him.
COMMlXTION, civil law. This term is used to signify the act by
which goods
are mixed together.
2. The matters which are mixed are dry or liquid. In the
commixtion of the former, the matter retains its substance and
individuality; in the latter, the substances no longer remain
distinct. The commixtion of liquids is called confusion, (q. v.)
and that of solids, a mixture. Lec. Elem. du Dr. Rom. §370, 371;
Story, Bailm. §40; 1 Bouv. Inst. n. 506.
COMMODATE, contracts. A term used in the Scotch law, which is
synonymous to the Latin commodatum, or loan for use. Ersk. Inst.
B. 3, t. 1, §20; 1 Bell's Com. 225; Ersk. Pr. Laws of Scotl. B.
3, t. 1, §9.
2. Judge Story regrets this term has not been adopted and
naturalized, as mandate has been from mandatum. Story, Com. §221.
Ayliffe, in his Pandects, has gone further, and terms the bailor
the commodant, and the bailee the commodatory, thus avoiding
those circumlocutions, which, in the common phraseology of our
law, have become almost indispensable. Ayl. Pand. B. 4, t. 16, p.
517. Browne, in his Civil Law, vol. 1, 352, calls the property
loaned "commodated property." See Borrower; Loan for use;
Lender.
COMMODATUM. A contract, by which one of the parties binds
himself to return to the other certain personal chattels which
the latter delivers to him, to be used by him, without reward;
loan -for use. Vide Loan for use.
COMMON. or right of common, English law. An encorporeal
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hereditament, which consists in a profit which a man has in the
lands of another. 12 S. & R. 32; 10 Wend. R. 647; 11 John. R.
498; 2 Bouv. Inst. 1640, et seq.
2. Common is of four sorts; of pasture, piscary, turbary and
estovers. Finch's Law, 157; Co. Litt. 122; 2 Inst. 86; 2 Bl.
Com. 32.
3. - 1. Common of pasture is a right of feeding one's beasts on
another's land, and is either appendant, appurtenant, or in
gross.
4. Common appendant is of common right, and it may be claimed
in pleading as appendant, without laying a prescription. Hargr.
note to 2 Inst. 122, a note.
5. Rights of common appurtenant to the claimant's land are
altogether independent of the tenure, and do not arise from any
absolute necessity; but may be annexed to lands in other
lordships, or extended to other beasts besides. such as are
generally commonable.
6. Common in gross, or at large, is such as is neither
appendant nor appurtenant to land, but is annexed to a man's
person. All these species of pasturable common, may be and
usually are limited to number and time; but there are also
commons without stint, which last all the year. 2 Bl. Com. 34.
7. - 2. Common of piscary is the liberty of fishing in another
man's water. lb. See Fishery.
8. - 3. Common of turbary is the liberty of digging turf in
another man's ground. Ib.
9.-4. Common of estovers is the liberty of taking necessary
wood-for the use or furniture of a house or farm from another
man's estate. Ib.; 10 Wend. R. 639. See Estovers.
10. The right of common is little known in the United States,
yet there are some regulations to be found in relation to this
subject. The constitution of Illinois provides for the
continuance of certain commons in that state. Const. art. 8, s.
8.
11. All unappropriated lands on the Chesapeake Bay, on the
Shore of the sea, or of any river or creek, and the bed of any
river or creek, in the eastern parts of the commonwealth,
ungranted and used as common, it is declared by statute in
Virginia, shall remain so, and not be subject to grant. 1 Virg.
Rev. C. 142.
12. In most of the cities and towns in the United States, there
are considerable tracts of land appropriated to public use. These
commons were generally laid out with the cities or towns where
they are found, either by the original proprietors or by the
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early inhabitants. Vide 2 Pick. Rep. 475; 12 S. & R. 32; 2
Dane's. Ab. 610; 14 Mass. R. 440; 6 Verm. 355. See, in general,
Vin. Abr. Common; Bac. Abr. Common; Com. Dig. Common; Stark.
Ev. part 4, p. 383; Cruise on Real Property, h. t.; Metc. &
Perk. Dig. Common, and Common lands and General fields.
C0MMON APPENDANT, Eng. law. A right attached to arable land,
and is an incident of tenure, and supposed to have originated by
grant of the lord or owner of a manor or waste, in consideration
of certain rents or services, or other value, to a freeholder or
copyholder of plough land, and at the same time either expressly
or by implication, and as of common right and necessity common
appendant over his other wastes and commons. Co. Litt. 122 a;
Willis, 222.
C0MMON APPURTENANT, Eng. law. A right granted by deed, by the
owner of waste or other land, to another person, owner of other
land, to have his cattle, or a particular description of cattle;
levant and couchant upon the land, at certain seasons of the
year, or at all times of the year. An uninterrupted usage for
twenty years, is evidence of a grant. 15 East, 116.
COMMON ASSURANCES. Title by deeds are so called, because, it is
said, every man ' s estate is assured to him; these deed's or
instruments operate either as conveyances or as charges.
2.- 1. Deeds of conveyance are, first, at common law, and
include feoffments, gifts, grants, leases, exchanges,
partition's, releases, confirmations, surrenders, assignments,
and defeasances; secondly, deeds of conveyance under the statute
of uses, as covenants to stand seised to uses, bargains and sale,
lease and release, deeds to lead or declare uses, and deeds of
appointment
and revocation.
3. - 2. Deeds which do not convoy, but only charge or discharge
lands, are obligations, recognizances, and defeasances. Vide
Assurance; Deed.
COMMON BAIL. The formal entry of fictitious sureties in the
proper office of the court, which is called filing common bail to
the action. See Bail.
COMMON BAR, pleading. A plea to compel the plaintiff to assign
the particular place where the trespass has been Committed.
Steph. Pl. 256. It i's sometime's called a blank bar. (q. v.)
COMMON BENCH, bancus communis. The court of common pleas was
anciently called common bench, because the pleas and
controversies there determined were between common persons. See
Bench.
COMMON CARRIER, contracts. One who undertakes for hire or
reward to transport the goods of any who may choose to employ
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him, from place to place. 1 Pick. 50, 53; 1 Salk. 249, 250;
Story, Bailm. §495 1 Bouv. Inst. n. 1020.
2. Common carriers are generally of two descriptions, namely,
carriers by land and carriers by water. Of the former description
are the proprietors of stage coaches, stage wagons or expresses,
which ply between different places, and' carry goods for hire;
and truckmen, teamsters, cartmen, and porters, who undertake to
carry goods for hire, as a common employment, from one part of a
town or city to another, are also considered as common carriers.
Carriers by water are the masters and owners of ships and
steamboats engaged in the transportation of goods for persons
generally, for hire and lightermen, hoymen, barge-owners,
ferrymen, canal boatmen, and others employed in like manner, are
so considered.
3. By the common law, a common carrier is generally liable for
all losses which may occur to property entrusted to his charge in
the course of business, unless he can prove the loss happened in
consequence of the act of God, or of the enemies of the United
States, or by the act of the owner of the property. 8 S. & R.
533; 6 John. R. 160; 11 John. R. 107; 4 N. H. Rep. 304; Harp.
R. 469; Peck. R. 270; 7 Yerg. R. 340; 3 Munf. R. 239; 1 Conn.
R. 487; 1 Dev. & Bat. 273; 2 Bail. Rep. 157.
4. It was attempted to relax the rigor of the common law in
relation to carriers by water, in 6 Cowen, 266; but that case
seems to be at variance with other decisions. 2 Kent,. Com. 471,
472; 10 Johns. 1; 11 Johns. 107.
5. In respect to carriers by land, the rule of the common law
seems every where admitted in its full rigor in the states
governed by the jurisprudence of the common law. Louisiana
follows the doctrine of the civil law in her code. Proprietors of
stage coaches or wagons, whose employment is solely% to carry
passengers, as hackney coachmen, are not deemed common carriers;
but if the proprietors of such vehicles for passengers, also
carry goods for hire, they are, in respect of such goods, to be
deemed common carriers. Bac. Ab. Carriers, A; 2 Show. Rep. 128 1
Salk. 282 Com. Rep. 25; 1 Pick. 50 5 Rawle, 1 79. The like
reasoning applies to packet ships and steam-boats, which ply
between different ports, and are accustomed to carry merchandise
as well as passengers. 2 Watts. R. 443; 5 Day's Rep. 415; 1
Conn. R. 54; 4 Greenl. R. 411; 5 Yerg. R. 427; 4 Har. & J.
291; 2 Verm. R. 92; 2 Binn. Rep. 74; 1 Bay, Rep. 99; 10 John.
R. 1; 11 Pick. R. 41; 8 Stew. and Port. 135; 4 Stew. & Port.
382; 3 Misso. R. 264; 2 Nott. & M. 88. But see 6 Cowen, R. 266.
The rule which makes a common carrier responsible for the loss of
goods, does not extend to the carriage of persons; a carrier of
slaves is, therefore, answerable only for want of care and skill.
2 Pet. S. C. R. 150. 4 M'Cord, R. 223; 4 Port. R. 238.
6. A common carrier of goods is in all cases entitled to demand
the price of carriage before he receives the goods, and, if not
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paid, he may refuse to take charge of them; if, however, he take
charge of them without the hire being paid, he may afterwards
recover it. The compensation which becomes due for the carriage
of goods by sea, is commonly called freight (q.v.); and see
also, Abb. on Sh. part 3, c. 7. The carrier is also entitled to a
lien on the goods for his hire, which, however, he may waive;
but if once waived, the right cannot be resumed. 2 Kent, Com.
497. The consignor or shipper is commonly bound to the carrier
for the hire or freight of goods. 1 T. R. 659. But whenever the
consignee engages to pay it, he also becomes responsible. It is
usual in bills of lading to state, that the goods are to be
delivered to the consignee or to his assigns, he or they paying
freight, in which case the consignee and his assigns, by
accepting the goods, impliedly become bound to pay the freight,
and the fact that the consignor is also liable to pay it, will
not, in such case, make any difference. Abbott on Sh. part 3, o.
7, §4.
7. What is said above, relates to common carriers of goods. The
duties, liabilities, and rights of carriers of passengers, are
now to be considered. These are divided into carriers of
passengers on land, and carriers of passengers on water.
8. First, of carriers of passengers on land. The duties of such
carriers are, 1st. those which arise on the commencement of the
journey. 1. To carry passengers whenever they offer themselves
and are ready to pay for their transportation. They have no more
right to refuse a passenger, if they have sufficient room and
accommodation, than an innkeeper has to refuse a guest. 3 Brod. &
Bing. 54; 9 Price's R. 408; 6 Moore, R. 141; 2 Chit. R. 1; 4
Esp. R. 460; 1 Bell's Com. 462; Story, Bailm. §591.
9. - 2. To provide coaches reasonably strong and sufficient for
the journey, with suitable horses, trappings and equipments.
10. - 3. To provide careful drivers of reasonable skill and.
good habits for the journey; and to employ horses which are
steady and not vicious, or likely to endanger the safety of the
passengers.
11. - 4. Not to overload the coach either with passengers or
luggage.
12. - 5. To receive and take care of the usual luggage allowed
to every passenger on the journey. 6 Hill, N. Y. Rep. 586.
13. - 2d. Their duties on the progress of the journey. 1. To
stop at the usual places, and allow the..Usual intervals for the
refreshment of the passengers. 5 Petersd. Ab. Carriers, p. 48,
note.
14. - 2. To use all the ordinary precautions for the safety of
passengers on the road.
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15. - 3d. Their duties on the termination of the journey. 1. To
carry the passengers to the end of the journey.
16. - 2. To put them down at the usual place of stopping,
unless there has been a special contract to the contrary, and
then to put them down at the place agreed upon. 1 Esp. R. 27. ,
17. The liabilities of such carriers. They are bound to use
extraordinary care and diligence to carry safely those whom they
take in their coaches. 2 Esp. R. 533; 2 Camp. R. 79; Peake's R.
80. But, not being insurers, they are not responsible for
accidents, when all reasonable skill and diligence have been
used.
18. The rights of such carriers. 1. To demand and receive their
fare at the time the passenger takes his seat. 2. They have a
lien on the baggage of the passenger for his fare or passage
money, but not on the person of the passenger nor the clothes he
has on. Abb. on Sh. part 3, c. 3, §11; 2 Campb. R. 631.
19. Second, carriers of passengers by water. By the act of
Congress of 2d March, 1819, 3 Story's Laws U. S. 1722, it is
enacted, 1. that no master of a vessel bound to or from the
United States shall take more than two passengers for every five
tons of the ship's custom-house measurement. 2. That the quantity
of water and provisions, which shall be taken on board and
secured under deck, by every Ship bound from the United States to
any port on the continent of Europe, shall be sixty gallons of
water, one hundred pounds of salted provisions, one gallon of
vinegar, and one hundred pounds of wholesome ship bread for each
passenger, besides the stores of the crew. The tonnage here
mentioned, is the measurement of the custom-house; and in
estimating the number of passengers in a vessel, no deduction is
to be made for children or persons not paying, but the crew is
not to be included. Gilp. R. 334.
20. The act of Congress of February 22, 1847, section 1,
provides: " That if the master of any vessel, owned in whole or
in part by a citizen of the United States of America, or by a
citizen of any foreign country, shall take on board such vessel,
at any foreign port or place, a greater number of passengers than
in the following proportion to the space occupied by them and
appropriated for their use, and unoccupied by stores or other
goods, not being the personal luggage of such passengers, that is
to say, on the lower deck or platform one passenger for every
fourteen clear superficial feet of deck, if such vessel is not to
pass within the tropics during such voyage; but if such vessel
is to pass within the tropics during such voyage, then one
passenger for every twenty such clear superficial feet of deck,
and on the orlop deck (if any) one passenger for every thirty
such superficial feet in all cases, with intent to bring such
passengers to the United States of America, and shall leave such
port or, place with the same, and bring the same, or any number
thereof, within the jurisdiction of the United States aforesaid,
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or if any such master of a vessel shall take on board of his
vessel at any port or place within the jurisdiction of the United
States aforesaid, any greater number of passengers than the
proportions aforesaid admit, with intent to carry the same to any
foreign port or place, every such master shall be deemed guilty
of a misdemeanor, and, upon conviction thereof before any circuit
or district court of the United States aforesaid, shall, for each
passenger taken on board beyond the above proportions, be fined
in the sum of fifty dollars, and may also be imprisoned for any
term not exceeding one year: Provided, That this act shall not be
construed to permit any ship or vessel to carry more than two
passengers to five tons of such ship or vessel."
21. Children under one year of age not to be computed in
counting the passengers, and those over one year and under eight,
are to be counted as two cbildren for one passenger, Sect. 4. But
this section is repealed so far as authorizes shippers to
estimate two children of eight years of age and under as one
passenger by the act of March 2, 1847, s. 2.
22. In New York, statutory regulations have been made in
relation to their canal navigation. Vide 6 Cowen's R. 698. As to
the conduct of carrier vessels on the ocean, Vide Story, Bailm.
§607 et seq; Marsh. Ins. B. 1, c. 12, s. 2. And see, generally,
1 Vin. Ab. 219; Bac. Ab. h. t.; 1 Com. Dig. 423; Petersd. Ab.
h. t.; Dane's Ab. Index, h. t.; 2 Kent, Com. 464; 16 East,
247, note; Bouv. Inst. Index, h. t.
23. In Louisiana carriers and watermen are subject, with
respect to the safe-keeping and preservation of the tbings
entrusted to them, to the same obligations and duties, as are
imposed on tavern keepers; Civ. Code, art. 2722; that is, they
are responsible for the effects which are brought, though they
were not delivered into their personal care; provided, however,
they were delivered to a servant or person in their employment;
art. 2937. They are responsible if any of the effects be stolen
or damaged, either by their servants or agents, or even by
strangers; art. 2938; but they are not responsible for what is
stolen b force of arms or with exterior breaking open of doors,
or by any other extraordinary violence; art. 2939. For the
authorities on the subject of Common carriers in the civil law,
the reader is referred to Dig. 4, 9, 1 to 7; Poth. Pand. lib. 4,
t. 9; Domat liv. 1, t. 16, S. 1 and 2; Pard. art. 537 to 555;
Code Civil, art. 1782, 1786, 1952; Moreau & Carlton, Partidas 5,
t. 8, 1. 26; Ersk. Inst. B. 2, t. 1, §28; 1 Bell's Com. 465;
Abb. on Sh. part 3, c. 3, §3, note (1); 1 Voet, ad Pand. lib. 4,
t. 9; Merl. Rep. mots Voiture, Voiturier; Dict. de Police,
Voiture.
COMMON COUNCIL. In many cities the charter provides for their
government, in imitation of the national and state governments.
There are two branches of the legislative assembly; the less
numerous, called the select, the other, the common council.
2. In English law, the common council of the whole realm means
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the parliament. Fleta, lib. 2, cap. 13.
COMMON COUNTS. Certain general counts, not founded on any
special contract, which are introduced in a declaration, for the
purpose of preventing a defeat of a just right by the accidental
variance of the evidence. These are in an action of assumpsit;
counts founded on express or implied promises to pay money in
consideration of a precedent debt, and are of four descriptions:
1. The indebitatus assumpsit; 2. The quantum meruit; 3 . The
quantum valebant; and, 4. The account stated.
COMMON FISHERY. A fishery to which all persons have a right,
such as the cod fisheries off Newfoundland. A common fishery is
different from a common of fishery, which is the right to fish in
another's pond, pool, or river. See Fishery.
COMMON HIGHWAY. By this term is meant a road to be used by the
community at large for any purpose of transit or traffic. Hamm.
N. P. 239. See Highway.
C0MMON INFORMER. One who, without being specially required by
law, or by virtue of his office, gives information of crimes,
offences or misdemeanors, which have been committed, in order to
prosecute the offenders; a prosecutor. Vide Informer;
Prosecutor.
COMMON INTENT, construction. The natural sense given to words.
2. It is a rule that when words are used which will bear a
natural sense and an artificial one, or one to be made out by
argument and inference, the natural sense shall prevail; it. is
simply a rule of construction and not of addition common intent
cannot add to a sentence words which have been omitted. 2 H.
Black. 530. In pleading, certainty is required, but certainty to
a common intent is sufficient; that is, what upon a reasonable
construction may be called certain, without recurring to possible
facts. Co. Litt. 203, a; Dougl. 163. See Certainty.
COMMON LAW. That which derives its force and authority from the
universal consent and immemorial practice of the people. See Law,
common.
COMMON NUISANCE. One which affects the public in general, and
not merely some particular person. 1 Hawk. P. C. 197. See
Nuisance.
COMMON PLEAS. The name of a court having jurisdiction generally
of civil actions. For a historical account of the origin of this
court in England, see Boote's Suit at Law, 1 to 10. Vide Common
Bench and Bench.
2. By common pleas, is also understood, such pleas or actions
as are brought by private persons against private persons; or by
the government, when the cause of action is of a civil nature. In
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England, whence we derived this phrase, common pleas are so
called to distinguish them from pleas of the crown. (q. v.)
COMMON RECOVERY. A judgment recovered in a fictitious suit,
brought against the tenant of the freehold, in consequence of a
default made by the person who is last vouched to warranty in the
suit., A common recovery is a kind of conveyance. 2 Bouv. Inst.
n. 2088, 2092-3. Vide Recovery.
C0MMON SCOLD, Crim. law, communes rixatrix. A woman, who, in
consequence of her boisterous, disorderly and quarrelsome tongue,
is a public nuisance to the neighborhood.
2. Such a woman may be indicted, and on conviction, punished.
At common law, the punishment was by being placed in a certain
engine of correction called the trebucket or cocking stool.
3. This punisbment has been abolished in Pennsylvania, where
the offence may be punished by fine and imprisonment. 12 Serg. &
Rawle, 220; vide 1 Russ. on Cr. 802 Hawk. B. 2, c. 25, s. 59 1
T. R. 756 4 Rogers' Rec. 90; Roscoe on Cr. Ev. 665.
COMMON SEAL, A seal used by a corporation. See Corporation.
C0MMON SENSE , med. jur. When a person possesses those
perceptions, associations and judgments, in relation to persons
and things, which agree with those of the generality of mankind,
he is said to possess common sense. On the contrary, when a
particular individual differs from the generality of persons in
these respects, he is said not to have common sense, or not to be
in his senses. 1 Chit. Med. Jur. 334.
COMMON, TENANTS IN. Tenants in common are such as hold an
estate, real or personal, by several distinct titles, but by a
unity of possession. Vide Tenant in common; Estate in common.
COMMON TRAVERSE. This kind of traverse differs from those
called technical traverses principally in this, that it is
preceded by no inducement general or special; it is taken
without an absque hoc, or any similar words, and is simply a
direct denial of the adverse allegations, in common language, and
always concludes to the country. It can be used properly only
when an inducement is not requisite; that is, when the party
traversing has no need to allege any new matter. 1 Saund. 103 b.
ii. 1.
2. This traverse derives its name, it is presumed, from the
fact that common language is used, and that it is more informal
than other traverses.
COMMON VOUCHEE. In common recoveries, the person who vouched to
warranty. In this fictitious proceeding, the crier of the court
usually performs the office of a common vouchee. 2 Bl. Com. 358;
2 Bouv. Inst. n. 2093.
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COMMONALTY, Eng. law. This word signifies, 1st. the common
people of England, as contradistinguished from the king and the
nobles; 2d. the body of a society as the masters, wardens, and
commonalty of such a society.
COMMONER. One who is entitled with others to the use of a
common.
COMMONS, Eng. law. Those subjects of the English nation who are
not noblemen. They are represented in parliament in the house of
commons.
COMMONWEALTH, government. A commonwealth is properly a free
state, or republic, having a popular or representative
government. The term has been, applied to the government of Great
Britain. It is not applicable to absolute governments. The states
composing the United States are, properly, so many commonwealths.
2. It is a settled principle, that no sovereign power is
amenable to answer suits, either in its own courts or in those of
a foreign country, unless by its own consent. 4 Yeates, 494.
COMMORANCY, persons. An abiding dwelling, or continuing as an
inhabitant in any place. It consists, properly, in sleeping
usually in one place.,
COMMORANT. One residing or inhabiting a particular place.
Barnes, 162.
COMMORIENTES. This Latin word signifies those wbo die at the
same time, as, for example, by shipwreck.
2. When several persons die by the same accident, and there is
no evidence as to who survived, the presumption of law is, they
all died at the same time. 2 Phillim. R. 261 Fearne on Rem. iv.;
5 B. & Adol. 91; Cro. Eliz. 503; Bac. Ab. Execution, D; 1 Mer.
R. 308. See Death; Survivor.
COMMUNICATION, contracts. Information; consultation;
conference.
2. In order to make a contract, it is essential there should be
an agreement; a bare communication or conference will not,
therefore, amount to a contract; nor can evidence of such
communication be received in order to take from, contradict, or
alter a written agreement. 1 Dall. 426; 4 Dall. 340; 3 Serg. &
Rawle, 609. Vide Pour-parler; Wbarton's Dig. Evid. R.
COMMUNINGS, Scotch law. This term is used to express the
negotiations which have taken place before making a contract, in
relation thereto. See Pourparler.
2. It is a general rule, that such communings or conversations,
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and the propositions then made, are no part of the contract for
no parol evidence will be allowed to be given to contradict,
alter, or vary a written instrument. 1 Serg. & R. 464 Id. 27;
Add. R. 361; 2 Dall. R. 172 1 Binn. 616; 1 Yeates, R. 140; 12
John. R. 77; 20 John. R. 49; 3 Conn. R. 9; 11 Mass. R. 30; 13
Mass. R. 443; 1 Bibb's R. 271; 4 Bibb's R. 473; 3 Marsh.
(Kty.) R. 333; Bunb. 175; 1 M. & S. 21; 1 Esp. C. 58; 3
Campb. R. 57.
COMMUNIO BONORUM, civil law. Common goods.
2. When a person has the management of common property, owned
by himself and others, not as partners, he is bound to account
for the profits, and is entitled to be reimbursed for the
expenses which he has sustained by virtue of the quasi-contract
which is created by his act, called communio bonorum. Vicat; 1
Bouv. Inst. n. 907, note.
COMMUNITY. This word has several meanings; when used in common
parlance it signifies the body of the people.
2. In the civil law, by community is understood corporations,
or bodies politic. Dig. 3, 4.
3. In the French law, which has been adopted in this respect in
Louisiana, Civ. Code, art. 2371, community is a species of
partnership, which a man and woman contract when they are
lawfully married to each other. It consists of the profits of
all, the effects of which the husband has the administration and
enjoyment, either of right or in fact; of the produce of the
reciprocal industry and labor of both husband and wife, and of
the estates which they may acquire during the marriage, either by
donations made jointly to them, or by purchase, or in any other
similar way, even although the purchase he made in the name of
one of the two, and not of both; because in that case the period
of time when the purchase is made is alone attended to, and not
the person who made the purchase. 10 L. R. 146; Id. 172, 181; 1
N. S. 325; 4 N. S. 212. The debts contracted during the marriage
enter into the community, and must be acquitted out of the common
fund; but not the debts contracted before the marriage.
4. The community is either, first, conventional, or that which
is formed by an express agreement in the contract of marriage
itself; by this contract the legal community may be modified, as
to the proportions which each shall take, or as to the things
which shall compose it; Civ. Code of L. art. 2393; second,
legal, which takes place when the parties make no agreement on
this subject in the contract of marriage; when it is regulated
by the law of the domicil they had at the time of marriage.
5. The effects which compose the community of gains, are
divided *into two equal portions between the heirs, at the
dissolution of the marriage. Civ. Code of L. art. 2375. See Poth.
h. t.; Toull. h. t.; Civ. Code of Lo. tit. 6, c. 2, s. 4.
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6. In another sense, community is the right which all men have,
according to the laws of nature, to use all things. Wolff, Inst.
§186.
COMMUTATION, punishments. The change of a punishment to which a
person has been condemned into a less severe one. This can be
granted only by the executive authority in which the pardoning
power resides.
COMMUTATIVE CONTRACT, civil law. One in which each of the
contracting parties gives and, receives an equivalent. The
contract of sale is of this kind. The seller gives the thing
sold, and receives the price, which is the equivalent. The buyer
gives the price and receives the thing sold, which is the
equivalent.
2. These contracts are usually distributed into four classes,
namely; Do ut des; Facio ut facias; Facio ut des; Do ut
facias. Poth. Obl. n. 13. See' Civ. Code of Lo. art. 1761.
COMMUTATIVE JUSTICE. That virtue whose object is, to render to
every one what belongs to him, as nearly as may be, or that which
governs contracts.
2. The word commutative is derived from commutare, which
signifies to exchange. Lepage, El. du Dr. ch. 1, art. 3, §3. See
Justice.
TO COMMUTE. To substitute one punishment in the place of
another. For example, if a man be sentenced to be hung, the
executive may, in some states, commute his punishment to that of
imprisonment.
COMPACT, contracts. In its more general sense, it signifies an
agreement. In its strict sense, it imports a contract between
parties, which creates obligations and rights capable of being
enforeed, and contemplated as such between the parties, in their
distinct and independent characters. Story, Const. B. 3, c. 3;
Rutherf. Inst. B. 2, c. 6, §1. 2. The constitution of the United
States declares that " no state shall, without the consent of
congress, enter into agreement or compact with another state, or
with a foreign power." See 11 Pet: 1; 8 Wheat. 1 Bald. R. 60;
11 Pet. 185.
COMPANION, dom. rel. By 5 Edw. III., st. 5, c. 2, §1, it is
declared to be high treason in any one who " doth compass or
imagine the death of our lord the king, or our lady his
companion," &c. See 2 Inst. 8, 9; 1 H. H. P. C. 124.
COMPANIONS, French law. This is a general term, comprehending
all persons who compose the crew of a ship or vessel. Poth. Mar.
Contr. n. 163.
COMPANY. An association of a number of individuals for the
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purpose of carrying on some legitimate business.
2. This term is not synonymous with partnership, though every
such unincorporated compass is a partnership.
3. Usage has reserved this term to associations whose members
are in greater number, their capital more considerable, and their
enterprizes greater, either on account of their risk or
importance.
4. When these companies are authorized by the government, they
are known by the name of corporations. (q. v.)
5. Sometimes the word is used to represent those members of a
partnership whose names do not appear in the name of the firm;
as, A.B & Company. Vide, 12 Toull. n, 97; Mortimer on Commerce,
128. Vide Club; Corporation; Firm; Parties to actions;
Partnership.
COMPARISON OF HANDWRITING, evidence. It is a general rule that
comparison of hands is not admissible; but to this there are
some exceptions. In some instances, when the antiquity of the
writing makes it impossible for any living witness to swear that
he ever saw the party write, comparison of handwriting, with
documents known to be in his handwriting, has been admitted. For
the general principle, see Skin. 579, 639; 6 Mod. 167; 1 Lord
Ray. 39, 40; Holt. 291; 4 T. R. 497; 1 Esp. N. P. C. 14, 351;
Peake's Evid. 69; 7 East, R. 282; B. N. P. 236; Anthon's N. P.
98, n.; 8 Price, 653; 11 Mass. R. 309 2 Greenl. R. 33 2 Johns.
Cas. 211 1 Esp. 351; 1 Root, 307; Swift's Ev. 29; 1 Whart. Dig
245; 5 Binn. R. 349; Addison's R. 33; 2 M'Cord, 518; 1 Tyler,
R. 4 6 Whart. R. 284; 3 Bouv. Inst. n. 3129-30. Vide Diploma.
TO COMPASS. To imagine; to contrive.
2. In England, to compass the death of the king is high
treason. Bract. 1. 3, c. 2 Britt. c. 8; Mirror, c. 1, s. 4.
COMPATIBILITY. In speaking of public offices it is meant by
this term to convey the idea that two of them may be held by the
same person at the same time. It is the opposite of
incompatibility. (q. v.)
COMPENSATIO CRIMINIS. The compensation or set-off of one crime
against another; for example, in questions of divorce, where one
party claims the divorce on the ground of adultery of his or her
companion, the latter may show that the complainant has been
guilty of the same offence, and having himself violated the
contract, he cannot complain of its violation on the other side.
This principle is incorporated in the codes of most civilized
nations. 1 Ought. Ord. per tit. 214; 1 Hagg. Consist. R. 144; 1
Hagg. Eccl. R. 714; 2 Paige, 108; 2 Dev. & Batt. 64. See
Condonation.
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COMPENSATION, chancery practice. The performance of tbat which
a court of chancery orders to be done on relieving a party who
has broken a condition, which is to place the opposite party in
no worse situation than if the condition had not been broken.
2. Courts of equity will not relieve from the consequences of a
broken condition, unless compensation can be made to the opposite
party. Fonb. c. 6; s. 51 n. (k) Newl. Contr: 251, et. seq.
3. When a simple mistake, not a fraud, affects a contract, but
does not change its essence, a court of equity will enforce it,
upon making compensation for the error, The principle upon wbich
courts of equity act," says Lord Chancellor Eldon, "is by all the
authorities brought to the true standard, that though the party
had not a title at law, because he had not strictly complied with
the terms so as to entitle him to an action, (as to time for
instance,) yet if the time, though introduced, as some time must
be fixed, where something is to be done on one side, as a
consideration for something to be done on the other, is not the
essence of the contract; a material object, to which they looked
in the first conception of it, even though the lapse of time has
not arisen from accident, a court of equity will compel the
execution of the contract upon this ground, that one party is
ready to perform, and that the other ma, have performance in
substance if he will permit it." 13 Ves. 287. See 10 Ves. 505;
13 Ves. 73, 81, 426; 6 Ves. 675; 1 Cox, 59.
C0MPENSATION, contracts. A reward for services rendered.
COMPENSATION, contracts, civil law. When two persons are
equally indebted to each other, there takes place a compensation
between them, which extinguishes both debts. Compensation is,
therefore, a reciprocal liberation between two persons who are
creditors and debtors to each other, which liberation takes place
instead of payment, and prevents a circuity. Or it may be more
briefly defined as follows; compensatio est debiti et crediti
intter se contributio.
2. Compeasation takes places, of course, by the more operation
of law, even unknown to the debtors the two debts are
reciprocally extinguished, as soon as they exist simultaneously,
to the, amount of their respective sums. Compensation takes place
only between two debts, having equally for their object a sum of
money, or a certain quantity of consumable things of one and the
same kind, and which are equally liquidated and demandable.
Compensation takes place, whatever be the cause of either of the
debts, except in case, 1st. of a demand of restitution of a tbing
of which the owner has been unjustly deprived; 2d. of a demand
of restitution of a deposit and a loan for use; 3d. of a debt
which has for its cause, aliments declared not liable to seizure.
Civil Code of. Louis. 2203 to 2208. Compensation is of three
kinds: 1. legal or by operation of law; 2. compensation by way
of exception; and, 3. by reconvention. 8 L. R. 158; Dig. lib.
16, t. 2; Code, lib. 4, t. 31; Inst. lib. 4, t' 6, s. 30;
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Poth. Obl. partie. 3eme, ch. 4eme, n. 623; Burge on Sur., Book
2, c. 6, p. 181.
3. Compensation very nearly resembles the set-off (q. v.) of
the common law. The principal difference is this, that a set-off,
to have any effect, must be pleaded; whereas compensation is
effectual without any such plea, only the balance is a debt. .2
Bouv. Inst. n. 1407.
COMPENSATION, crim. law; Compeusatio crimiuura, or
recrimination (q. v.)
2. In cases of suits for divorce on the ground of adultery, a
compensation of the crime hinders its being granted; that is, if
the defendant proves that the party has also committed adultery,
the defendant is absolved as to the matters charged in the libel
of the plaintiff. Ought. tit. 214, Pl. 1; Clarke's Prax. tit.
115; Shelf. on Mar. & Div. 439; 1 Hagg. Cons. R. 148. See
Condonation; Divorce.
C0MPENSATION, remedies. The damages recovered for an injury, or
the violation of a contract.. See Damages.
COMPERUIT AD DIEM, pleading. He appeared at the day. This is
the name of a plea in bar to an action of debt on a bail-bond.
The usual replication to this plea is nul tiel record: that there
is not any such record of appearance of the said. For forms of
this plea, vide 5 Wentw. 470; Lil. Entr. 114; 2 Chit. Pl. 527.
2. When the issue is joined on this plea, the trial is by the
record. Vide 1 Taunt. 23; Tidd, 239. And see, generally, Com.
Dig. Pleader, 2 W. 31; 7 B. & C. 478.
COMPETENCY, evidence. The legal fitness or ability of a witness
to be heard on the trial of a cause. This term is also applied to
written or other evidence which may be legally given on such
trial, as, depositions, letters, account-books, and the like.
2. Prima facie every person offered is a competent witness, and
must be received, unless Lis incompetency (q. v.) appears. 9
State Tr. 652.
3. There is a difference between competency and credibility. A
witness may be competent, and, on examination, his story may be
so contradictory and improbable that he may not be believed; on
the contrary he may be incompetent, and yet be perfectly credible
if he were examined.
4. The court are the sole judges of the competency of a
witness, and may, for the purpose of deciding whether the witness
is or is not competent, ascertain all the facts necessary to form
a judgment. Vide 8 Watts, R. 227; and articles Credibility;
Incompetency; Interest; Witness.
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5. In the French law, by competency is understood the right in
a court to exercise jurisdiction in a particular case; as, where
the, law gives jurisdiction to the court when a thousand francs
shall be in dispute, the court is competent if, the sum demanded
is a thousand francs or upwards, although the plaintiff may
ultimately recover less.
COMPETENT WITNESS. One who is legally qualified to be heard to
testify in a cause. In Kentucky, Michigan, and Missouri, a will
must be attested, for the purpose of passing lands, by competent
witnesses; but if wbolly written by the testator, in Kentucky,
it need not be so attested. See Attesting witness; Credible
witness; Disinterested witness; Respectable witness; and
Witness.
COMPETITORS, French law. Persons who compete or aspire to the
same office, rank or employment. As an English word in common
use, it has a much wider application. Ferriere, Dict. de Dr. h.
t.
COMPILATION. A literary production, composed of the works of
others, and arranged in some methodical manner.
2. When a compilation requires in its execution taste,
learning, discrimination and intellectual labor, it 'is an object
of copyright; as, for example, Bacon's Abridgment. Curt. on
Copyr. 186.
COMPLAINANT. One who makes a complaint. A plaintiff in a suit
in chancery is so called.
COMPLAINT, crim. law. The allegation made to a proper officer,
that some person, whether known or unknown, has been guilty of a
designated offence, with an offer to prove the fact, and a
request that the offender may be punished.
2. To have a legal effect, the complaint must be supported by
such evidence as shows that an offence has been committed, and
renders it certain or probable that it was committed by the
person named or described in the complaint.
COMPOS MENTIS. Of sound mind. See non compos mentis.
COMPOSITION, contracts. An agreement, made upon a sufficient
consideration, between a debtor and creditor, by which the
creditor accepts part of the debt due to him in satisfaction of
the whole. Montagu on Compos. 1; 3 Co. 118; Co. Litt. 212, b;
4 Mod. 88; 1 Str. 426; 2 T. R. 24, 26; 2 Chit. R. 541, 564; 5
D. & R. 56 3 B. & C. 242; 1 R. & M. 188; 1 B. & A. 103, 440; 3
Moore's R. 11; 6 T. R. 263; 1 D. & R. 493; 2 Campb. R. 283; 2
M. & S. 120; 1 N. R. 124; Harr. Dig. Deed VIII.
2. In England, compositions were formerly allowed for crimes
and misdemeanors, even for murder. But these compositions are no
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longer allowed, and even a qui tam action cannot be lawfully
compounded. Bac. Ab. Actions qui tam, See 2 John. 405; 9 John.
251; 10 John. 118; 11 John. 474; 6 N. H.-Rep. 200.
COMPOSITION OF MATTER. In describing the subjects of patents,
the Act of Congress of July 4, 1836, sect. 6, uses the words
"composition of matter;" these words are usually applied to
mixtures and chemical compositions, and in these cases it is
enough that the compound is new. Both the composition and the
mode of compounding may be considered as included in the
invention, when the compound is new.
COMPOUND INTEREST. Interest allowed upon interest; for
example, when a sum of money due for interest, is added to the
principal, and then bears interest. This is not, in general,
allowed. See Interest for money.
COMPOUNDER, in Louisiana. He who makes a composition. An
amicable compounder is one who has undertaken by the agreement of
the parties to compound or settle differences. between them. Code
of Pract. of Lo. art. 444.
COMPOUNDING A FELONY, The act of a party immediately aggrieved,
who agrees with a thief or other felon that he will not prosecute
him, on condition that he return to him the goods stolen, or who
takes a reward not to prosecute. This is an offence punishable by
fine and imprisonment. The mere retaking by the owner of stolen
goods is no offence, unless the offender is not to be prosecuted.
Hale, P. C. 546 1 Chit. Cr. Law, 4.
COMPROMISE, contracts. An agreement between two or more
persons, who, to avoid a lawsuit, amicably settle their
differences, on such terms as they can agree upon. Vide Com. Dig.
App. tit. Compromise.
2. It will be proper to consider, 1. by whom the compromise
must be made; 2. its form; 3. the subject of the compromise;
4. its effects.
3. It must be made by a person having a right and capacity to
enter into the contract, and carry out his part of it, or by one
having lawful authority from such person.
4. The compromise may be by parol or in writing, and the
writing may be under seal or not: though as a general rule a
partner cannot bind his copartner by deed, unless expressly
authorized, yet it would seem that a compromise with the
principal is an act which a partner may do in behalf of his
copartners, and that, though under seal, it would conclude the
firm. 2 Swanst. 539.
5. The compromise may relate to a civil claim, either as a
matter of contract, or for a tort, but it must be of something
uncertain; for if the debt be certain and undisputed, a payment
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of a part will not, of itself, discharge the whole. A claim
connected with a criminal charge cannot be compromised. 1 Chit.
Pr. 17. See Nev. & Man. 275.
6. The compromise puts an end to the suit, if it be proceeding,
and bars any Suit which may afterwards be instituted. It has the
effect of res judicata. 1 Bouv. Inst. n. 798-9.
7. In the civil law, a compromise is an agreement between two
or more persons, who, wishing to settle their disputes, refer the
matter, in controversy to arbitrators, who are so called because
those who choose them give them full powers to arbitrate and
decide what shall appear just and reasonable, to put an end -to
the differences of which they are made the judges. 1 Domat, Lois
Civ. lib. h. t. 14. Vide Submission; Ch. Pr. Index, h. t.
COMPROMISSARIUS, civil law. A name sometimes given to an
arbitrator; because the parties to the submission usually agree
to fulfil his award as a compromise.
COMPTROLLERS. There are officers who bear this name, in the
treasury depart ment of the United States.
2. There are two comptrollers. It is the duty of the first to
examine all accounts settled by the first and fifth auditors, and
certify the balances arising thereon to the register; to
countersign all warrants drawn by the secretary.of the treasury,
other than those drawn on the requisitions of the sec retaries of
the war and navy departments, which shall be warranted by law;
to report to the secretary the official forms to be issued in the
different offices for collecting the public revenues, and the
manner and form of stating the accounts of the several persons
employed therein; and to superintend the preservation of the
public accounts, subject to his revision; and to provide for the
payment of all moneys which may be collected. Act of March 3,
1817, sect. 8; Act of Sept. 2, 1789, s. 2 Act of March 7, 1822 .
3. To superintend the recovery of all debts due to the United
States; to direct suits and legal proceedings, and to take such
measures as may be authorized by the laws, to enforce prompt
payment of all such debt; Act of March 3, 1817, sect. 10; Act
of Sept. 2, 1789, s. 2; to lay before congress annually, during
the first week of their session, a list of such officers as shall
have failed in that year to make the settlement required by law;
and a statement of the accounts in the treasury, war, and navy
departments, which may have remained more than three years
unsettled, or on which balauces appear to have been due more than
three years prior to the thirteenth day of September, then last
past; together with a statement of the causes which have
prevented a settlement of the accounts, or the recovery of the
balances due to the United States. Act of March 3, 1809, sect. 2.
4. Besides these, this officer is required to perform minor
duties, which the plan of this work forbids to be enumerated
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here.
5. His salary is three thousand five hundred dollars per annum.
Act of Feb. 20, 1804, s. 1.
6. The duties of the second comptroller are to examine all
accounts settled by the second, third and fourth auditors, and
certify the balances arising -thereon to the secretary of the
department in which the expenditure has been incurred; to
counter-sign all the warrants drawn by the secretary of the
treasury upon the requisition of the secretaries of the war and
navy departments, which shall be warranted by law; to report to
the said secretaries the official forms to be issued in the
different offices for disbursing public money in those
departments, and the manner and form of keeping and stating the
accounts of the persons employed therein, and to superintend the
preservation of public accounts subject to his revision. His
salary is three thousand dollars per annum. Act of March 3, 1817,
s. 9 and 15; Act of May 7, 1822.
7. A similar officer exists in several of the states, whose
official title is comptroller of the public accounts, auditor
general, or other title descriptive of the duties of the office.
COMPULSION. The forcible inducement to au act.
2. Compulsion may be lawful or unlawful. 1. When a man is
compelled by lawful authority to do that which be ought to do,
that compulsion does not affect the validity of theact; as for
example, when a court of competent jurisdiction compels a party
to execute a deed, under the pain of attachment for contempt, the
grantor cannot object to it on the ground of compulsion. 2. But
if the court compelled a party to do an act forbidden by law, or
not having jurisdiction over the parties or the subject-matter,
the act done by such compulsion would be void. Bowy. Mod. C. L.
305.
3. Compulsion is never presumed. Coercion. (q. v.)
COMPURGATOR. Formerly, when a person was accused of a crime, or
sued in a civil action, he might purge himself upon oath of the
accusation made against him, whenever the proof was not the most
clear and positive; and if upon his oath he declared himself
innocent, he was absolved.
2. This usage, so eminently calculated to encourage perjury by
impunity, was soon found to be dangerous to the public safety. To
remove this evil the laws were changed, by requiring that the
oath should be administered with the greatest solemnity; but the
form was soon disregarded, for the mind became. easily
familiarized to those ceremonies which at first imposed on the
imagination, and those who cared not to violate the truth did not
hesitate to treat the form with contempt. In order to give a
greater weight to the oath of the accused, the law was again
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altered so as to require that the accused should appear before
the judge with a certain number of his neighbors, relations or
friends, who should swear that they believed the accused had
sworn truly. This new species of witnesses were called
compurgators.
3. The number of compurgators varied according to the nature of
the charge and other circumstances. Encyclopedie, h. t.. Vide Du
Cange, Gloss. voc. Juramentum; Spelman's Gloss. voc. Assarth;
Merl. Rep. mot Conjurateurs.
4. By the English law, when a party was sued in debt or simple
contract, detinue, and perhaps some other forms of action, the
defendant might wage his law, by producing eleven compurgators
who would swear they believed him on his oath, by which he
discharged himself from the action in certain cases. Vide 3 Bl.
Com. 341-848; Barr. on the Stat. 344; 2 Inst. 25; Terms de la
Ley; Mansel on Demurrer, 130, 131 Wager of Law.
COMPUTATION counting, calculation. It is a reckoning or
ascertaining the number of any thing.
2. It is sometimes used in the common law for the true
reckoning or account of time. Time is computed in two ways;
first, naturally, counting years, days and hours; and secondly,
civilly, that is, that when the last part of the time has once
commenced, it is considered as accomplished. Savig. Dr. Rom.
§182. See Infant; Fraction. For the computation of a year, see
Com. Dig. Ann; of a mouth, Com. Dig. Temps. A; 1 John. Cas. 100
15 John. R. 120; 2 Mass. 170, n.; 4 Mass. 460; 4 Dall. 144; 3
S. & R. 169; of a day, vide Day.; and 3, Burr 1434; 11 Mass.
204; 2 Browne, 18; Dig. 3, 4, 5; Salk. 625; 3 Wils. 274.
3. It is a general rule that when an act is to be done within a
certain time, one day is to be taken inclusively, and one
exclusively. Vide Lofft, 276; Dougl. 463; 2 Chit. Pr. 69; 3
Id. 108, 9; 3 T. R. 623; 2 Campb. R. 294; 4 Man. and Ryl. 300,
n. (b) 5 Bingh. R. 339; S. C. 15, E. C. L. R. 462; 3 East, R.
407; Hob. 139; 4 Moore, R. 465; Har. Dig. Time, computation
of; 3 T. R. 623; 5 T. R. 283; 2 Marsh. R. 41; 22 E. C. L. R.
270; 13 , E, C. L. R. 238; 24 E. C. L. R. 53; 4 Wasb. C. C. R.
232; 1 Ma-son, 176; 1 Pet. 60; 4 Pet. 349; 9 Cranch, 104; 9
Wheat. 581. Vide Day; Hour; Month; Year.
CONCEALMENT, contracts. The unlawful suppression of any fact or
circumstance, by one of the partis to a contract, from the other,
which in justice ought to be made known. 1 Bro. Ch. R. 420; 1
Fonbl. Eq. B. 1, c. 3, §4, note (n); 1 Story, Eq. Jur. §207.
2. Fraud occurs when one person substantially misrepresents or
conceals a material fact peculiarly within his own knowledge, in
consequence of which a delusion exists; or uses a device
naturally calculated to lull the suspicions of a careful man, and
induce him to forego inquiry into a matter upon which the other
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party has information, although such information be not
exclusively within his reach. 2 Bl. Com. 451; 3 Id. 166; Sugd.
Vend. 1 to 10; 1 Com. Contr. 38; 3 B. & C. 623; 5 D. & R. 490;
2 Wheat. 183; 11 Id. 59; 1 Pet. Sup. C. R. 15, 16. The party is
not bound, however, to disclose patent defects. Sugd. Vend. 2.
3. A distinction has been made between the concealment of
latent defects in real and personal property. For example, the
concealment by an agent that a nuisance existed in connexion with
a house the owner had to hire, did not render the lease void. 6
IV. & M. 358. 1 Smith, 400. The rule with regard to personalty is
different. 3 Camp. 508; 3 T. R. 759.
4. In insurances, where fairness is so essential to, the
contract, a concealment which is only the effect of accident,
negligence, inadvertence, or mistake, if material, is equally
fatal to the contract as if it were intentional and fraudulent. 1
Bl. R. 594; 3 Burr. 1909. The insured is required to disclose
all the circumstances within his own knowledge only, which
increase the risk. He is not, however, bound to disclose general
circumstances which apply to all policies of a particular
description, notwithstanding they may greatly increase the risk.
Under this rule, it has been decided that a policy is void, which
was obtaineed by the concealment by the assured of the fact that
he had heard that a vessel like his was taken. 2 P. Wms. 170. And
in a case where the assured had information of "a violent storm"
about eleven hours after his vessel had sailed, and had stated
only that "there had been blowing weather and severe storms on
the coast after the vessel had sailed" but without any reference
to the particular storm it was decided that this was a
concealment, which vitiated the policy. 2 Caines R. 57. Vide 1
Marsh. Ins: 468; Park, Ins. 276; 14 East, R. 494; 1 John. R.
522; 2 Cowen, 56; 1 Caines, 276; 3 Wash. C. C. Rep. 138; 2
Gallis. 353; 12 John. 128.
5. Fraudulent concealment avoids the contract. See, generally,
Verpl. on Contr. passim; Bouv. Inst. Index, h. t.; Marsh. Ins.
B. 1, c. 9; 1 Bell's Com. B. 2, pt. 3, c. 15 s. 3, §1; 1 M. &
S. 517; 2 Marsh. R. 336.
CONCESSI, conveyancing. This is a Latin word, signifying, I
have granted. It was frequently used when deeds and other
conveyances were written in Latin.. It is a word of general
extent, and is said to amount to a grant, feoffment, lease,
release, and the like. 2 Saund. 96; Co. Lift. 301, 302; Dane's
Ab. Index, h. t.; 5 Whart. R. 278.
2 It has been held that this word in a feoffment or fine
implies no -warranty. Co. Lit. 384 Noke's Case, 4 Rep. 80;
Vaughan's Argument in Hayes v. Bickoxsteth, Vaughan, 126;
Butler"s Note, Co. Lit. 3 84. But see 1 Freem. 339, 414.
CONCESSION. A grant. This word is frequently used in this sense
when applied to grants made by the French and Spanish governments
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in Louisiana.
CONCESSIMUS. A Latin word, which signifies, we have granted.
This word creates a covenant in law, for the breach of which the
grantors may be jointly sued. It imports no warranty of a
freehold, but as in case of a lease for years. Spencer's Case, 5
Co. Rep. 16 Brown v. Heywood, 3 Keble, Rep. 617 Bac. Ab.
Covenant, B. See Bac. Ab. officers, &c. E.
CONCESSOR. A grantor; one who makes a concession to another.
CONCILIUM. A day allowed to a defendant to make his defence;
an imparlance, 4 Bl. Com. 356, n.; 3 T. R. 530.
CONCILIUM REGIS. The name of a tribunal which existed in
England during the times of Edward I. and Edward H., composed of
the judges and sages of the law. To them were referred cases of
great difficulty. Co. Litt. 804.
CONCLAVE. An assembly of cardinals for the purpose of electing
a pope; the place where the assembly is held is also called a
conclave. It derives this name from the fact that all the windows
and doors are looked, with the exception of a single panel, which
admits a gloomy light.
CONCLUSION, practice. Making the last argument or address to
the court or jury. The party on whom the onus probandi is cast,
in general has the conclusion.
CONCLUSION, remedies. An estoppel; a bar; the act of a man by
which he has confessed a matter or thing which he can no longer
deny; as, for example, the sheriff is concluded by his return to
a writ, and therefore, if upon a capias he return cepi corpus, he
cannot afterwards show that he did not arrest the defendant, but
is concluded by his return. Vide Plowd. 276, b; 3 Tho. Co. Litt.
600.
CONCLUSION TO THE COUNTRY, pleading. The tender of. an issue to
be tried by a jury is called the conclusion to the country.
2. This conclusion is in the following words, when the issue is
tendered by the defendant: " And of this the said C D puts
himself upon the country." When it is tendered by the plaintiff,
the formula is as follows: " And this the said A B prays may be
inquired of by the country." It held, however, that there is no
material difference between these two modes of expression, and
that, if ponit se, be substituted for petit quod inquiratur, or
vice versa, the mistake is unimportant. 10 Mod. 166.
3. When there is an affirmative on one side, and a negative on
the other, or vice versa, the conclusion should be to the
country. T. Raym. 98; Carth. 87; 2 Saund. 189; 2 Burr. 1022.
So it is, though the affirmative and negative be not in express
words, but only tantamount thereto. Co. Litt. 126, a; Yelv. 137;
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1 Saund. 103; 1 Chit. Pl. 592; Com. Dig. Pleader, E 32.
CONCLUSIVE. What puts an end to a thing. A conclusive
presumption of law, is one which cannot be contradicted even by
direct and positive proof. Take, for example, the presumption
that an infant is incapable of judging whether it is or is not
against his interest; When infancy is pleaded and proved, the
plaintiff cannot show that the defendant was within one day of
being of age when the contract was made, and perfectly competent
to make a contract. 3 Bouv. Inst. n. 3061.
CONCLUSIVE EVIDENCE. That which cannot be contradicted by any
other evidence,; for example, a record, unless impeached for
fraud, is conclusive evidence between the parties. 3 Bouv. Inst.
n. 3061-62.
CONCLUSUM, intern. law. The form of an acceptance or conclusion
of a treaty; as, the treaty was ratified purely and simply by a
conclusum. It is the name of a decree of the Germanic diet, or of
the aulic council.
CONCORD, estates, conveyances, practice. An agreement or
supposed agreement between the parties in levying a fine of
lands, in which the deforciant (or he who keeps the other out of
possession,) acknowledges that the lands in question, are the
right of the complainant;. and from the acknowledgment or
recognition of right thus made, the party who levies the fine is
called the cognisor, and the person to whom it is levied, the
cognisee. 2 Bl. Com. 350; Cruise, Dig. tit. 35, c. 2, s. 33;
Com. Dig. Fine, E 9.
CONCORDATE. A convention; a pact; an agreement. The term is
generally confined to the agreements made between independent
government's; and, most usually applied to those between the
pope and some prince.
CONCUBINAGE. This term has two different significations;
sometimes it means a species of marriage which took place among
the ancients, and which is yet in use in some countries. In this
country it means the act or practice of cobabiting as man and
woman, in sexual commerce, without the authority of law, or a
legal marriage. Vide 1 Bro. Civ. Law, 80; Merl. Rep. b. t.;
Dig. 32, 49, 4; Id. 7, 1, 1; Code, 5, 27, 12.
CONCUBINE. A woman who cohabits with a man as his wife, without
being married.
TO CONCUR. In Louisiana, to concur, signifies, to claim a part,
of the estate of an insolvent along with other claimants; 6 N.
S. 460; as " the wife concurs with her husband's creditors, and
claims a privilege over them."
CONCURRENCE, French law. The equality of rights, or privilege
which several persons-have over the same thing; as, for example,
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the right which two judgment creditors, Whose judgments were
rendered at the same time, have to be paid out of the proceeds of
real estate bound by them. Dict. de Jur. h. t.
CONCURRENT. Running together; having the same authority; thus
we say a concurrent consideration occurs in the case of mutual
promises; such and such a court have concurrent jurisdiction;
that is, each has the same jurisdiction.
CONCUSSION, civ. law. The unlawful forcing of another by
threats of violence to give something of value. It differs from
robbery in this, that in robbery the thing is taken by force,
while in concussion it is obtained by threatened violence. Hein.
Lec. El, §1071
CONDEDIT, eccl. law. The name of a plea, entered by a party to
a libel filed in the ecclesiastical court, in which it is pleaded
that the deceased made the will which is the subject of the suit,
and that he was of sound mind. 2 Eng. Eccl. Rep. 438; 6 Eng.
Eccl. Rep. 431.
CONDELEGATES. Advocates who have been appointed judges of the
bigh court of delegates are so called. Shelf. on Lun. 310.
CONDEMNATION, mar. law. The sentence or judgment of a court of
competent jurisdiction that a ship or vessel taken as a prize on
the high seas, was liable to capture, and was properly and
legally captured.
2. By the general practice of the law of nations, a sentence of
condemnation is, at present, generally deemed necessary in order
to divest the title of a vessel taken as a prize. Until this has
been done the original owner may regain his property, although
the ship may have been in possession of the enemy twenty-four
hours, or carried infra praesidia. 1 Rob. Rep. 134; 3 Rob. Rep.
97, n.; Carth. 423; Chit. Law of Nat. 99, 100; 10 Mod. 79;
Abb. on Sh. 14; Wesk. on Ins. h. t.; Marsh. on Ins. 402. A
sentence of condemnation is generally binding everywhere. Marsh.
on Ins. 402.
3. The term condemnation is also applied to the sentence which
declares a ship to be unfit for service; this sentence and the
grounds of it may, however, be re-examined and litigated by
parties interested in disputing it. 5 Esp. N. P. C. 65; Abb. on
Shipp. 4.
CONDEMNATION, civil law. A sentence of judgment which condemns
some one to do, to give, or to pay something; or which declares
that his claim or pretensions are unfounded. This word is also
used by common lawyers, though it is more usual to say
conviction, both in civil and criminal cases. It is a maxim that
no man ought to be condemned unheard, and without the opportunity
of being heard.
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CONDICTIO INDEBITI, civil law. When the plaintiff has paid to
the defendant by mistake what he was not bound to pay either in
fact or in law, he may recover it back by an action called
condictio indebiti. This action does not lie, 1. if the sum was
due ex cequitate, or by a natural obligation; 2. if he who made
the payment knew that nothing was due, for qui consulto dat quod
non debetat, prcesumitur donare. Vide Quasi contract.
CONDICTION, Lat. condictio. This term is used in the civil law
in the same sense as action. Condictio certi, is an action for
the recovery of a certain thing, as our action of replevin,
condictio incerti, is an action given for the recovery of an
uncertain thing. Dig. 12 , 1.
CONDITION, contracts, wills. In its most extended
signification, a condition is a clause in a contract or agreement
which has for its object to suspend, to rescind, or to modify the
principal obligation; or in case of a will, to suspend, revoke,
or modify the devise or bequest. 1 Bouv. Inst. n. 730. It ii in
fact by itself, in many cases, an agreement; and a sufficient
foundation as an agreement in writing, for a bill in equity,
praying for a specific performance. 2 Burr. 826. In pleading,
according to the course of the common Iaw, the bond and its
condition are to some intents and purposes, regarded as distinct
things. 1 Saund. Rep. by Wms. 9 b. Domat has given a definition
of a condition, quoted by Hargrave, in these words: "A condition
is any portion or agreement which regulates what the parties have
a mind should be done, if a case they foresee should come to
pass." Co. Litt. 201 a.
2. Conditions sometimes suspend the obligation; as, when it is
to have no effect until they are fulfilled; as, if I bind myself
to pay you one thousand dollars ou condition that the ship Thomas
Jefferson shall arrive in the United States from Havre; the
contract is suspended until the arrival of the ship.
3. The condition sometimes rescinds the contract; as, when I
sell you my horse, on condition that he shall be alive on the
first day of January, and he dies before that time.
4. A condition may modify the contract; as, if I sell you two
thousand bushels of corn, upon condition that my crop shall
produce that much, and it produces only fifteen hundred bushels.
5. In a less extended acceptation, but in a true sense, a
condition is a future and uncertain event, on the existence or
non-existence of which is made to depend, eitther the
accomplishment, the modification, or the rescission of an
obligation or testamentary disposition.
6. There is a marked difference between a condition and a
limitation. When a in is given generally, but the gift may
defeated upon the happening of an uncertain event, the latter is
called a condition but when it is given to be enjoyed until the
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event arrives, it is a limitation. See Limitation; Estates. It
is not easy to say when a condition will be considered a covenant
and when not, or when it will be holden to be both. Platt on Cov.
71.
7. Events foreseen by conditions are of three kinds. Some
depend on the acts of the persons who deal together, as, if the
agreement should provide that a partner should not join another
partnership. Others are independent of the will of the parties,
as, if I sell you one thousand bushels of corn,. on condition
that my crop shall not be destroyed by a fortuitous event, or act
of God. Some depend in part on the contracting parties and partly
on the act of God, as, if it be provided that such merchandise
shall arrive by a certain day.
8. A condition may be created by inserting the very word
condition, or on condition, in the deed or agreement; there are,
however, other words that will do so as effectually, as proviso,
if, &c. Bac. Ab. Conditions, A.
9. Conditions are of various kinds; 1. as to their form, they
are express or implied. This division is of feudal origin. 2
Woodes. Lect. 138. 2. As to their object, they are lawful or
unlawful; 3. as to the time when they are to take effect, they
are precedent or subsequent; 4. as to their nature, they are
possible or impossible 5. as to their operation, they are
positive or negative; 6. is to their divisibility, they are
copulative or disjunctive; 7. as to their agreement with the
contract, they are consistent or repugnant; 8. as to their
effect, they are resolutory or suspensive. These will be
severally considered.
10. An express condition is one created by express words; as
for instance, a condition in a lease that if the tenant shall not
pay the rent at the day, the lessor may reenter. Litt. 328. Vide
Reentry.
11. An implied condition is one created by law, and not by
express words; for example, at common law, the tenant for life
holds upon the implied condition not to commit waste. Co. Litt.
233, b.
12 . A lawful or legal condition is one made in consonance with
the law. This must be understood of the law as existing at the
time of making the condition, for no change of the law can change
the force of the condition. For example, a conveyance was made to
the grantee, on condition that he should not aliens until be
reached the age of twenty-five years. Before he acquired this age
be aliened, and made a second conveyance after he obtained it;
the first deed was declared void, and the last valid. When the
condition was imposed, twenty-five was the age of majority in the
state; it was afterwards changed to twenty-one. Under these
circumstances the condition was held to be binding. 3 Miss., R.
40.
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13. An unlawful or illegal condition is one forbidden by law.
Unlawful conditions have for their object, lst. to do something
malum in se, or malum prohibitum; 2d. to omit the performance of
some duty required by law 3d. to encourage such act or omission.
1 P. Wms. 189. When the law prohibits, in express terms, the
transaction in respect to which the condition is made, and
declares it void, such condition is then void; 3 Binn. R. 533;
but when it is prohibited, without being declared void, although
unlawful, it is not void. 12 S. @ R. 237. Conditions in restraint
of marriage are odious, and are therefore held to the utmost
rigor and strictness. They are contrary to sound policy, and by
the Roman law were all void. 4 Burr. Rep. 2055; 10 Barr. 75,
350; 3 Whart. 575.
14. A condition precedent is one which must be performed before
the estate will vest, or before the obligation is to be
performed. 2 Dall. R. 317. Whether a condition shall be
considered as precedent or subsequent, depends not on the form or
arrangement of the words, but on the manifest intention of the
parties, on the fair construction of the contract. 2 Fairf. R.
318; 5 Wend. R. 496; 3 Pet, R. 374; 2 John. R. 148; 2 Cain
es, R. 352; 12 Mod. 464; 6 Cowen, R. 627 9 Wheat. R. 350; 2
Virg. Cas. 138 14 Mass. R. 453; 1 J. J. Marsh. R. 591 6 J. J.
Marsh. R. 161; 2 Bibb, R. 547 6 Litt. R. 151; 4 Rand. R. 352;
2 Burr. 900
15. A subsequent condition is one which enlarges or defeats an
estate or right, already created. A conveyance in fee, reserving
a life estate in a part of the land, and made upon condition that
the grantee shall pay certain sums of money at divers times to
several persons, passes the fee upon condition subsequent. 6
Greenl. R. 106. See 1 Burr. 39, 43; 4 Burr. 1940. Sometimes it
becomes of great importance to ascertain whether the condition is
precedent or subsequent. When a precedent condition becomes
impossible by the act of God, no estate or right vests; but if
the condition is subsequent, the estate or right becomes
absolute. Co. Litt. 206, 208; 1 Salk. 170.
16. A possible condition is one which may be performed, and
there is nothing in the laws of nature to prevent its
performance.
17. An impossible condition is one which cannot be accomplished
according to the laws of nature; as, to go from the United
States to Europe in one day.; such a condition is void. 1
Swift's Dig. 93; 5 Toull. n. 242-247. When a condition becomes
impossible by the act of God, it either vests the estate, or does
not, as it is precedent or subsequent: when it is the former, no
estate vests when the latter, it becomes absolute. Co. Litt. 206,
a, 218, a; 3 Pet. R. 374; 1 Hill. Ab. 249. When the performance
of the condition becomes impossible by the act of the party who
imposed it, the estate is rendered absolute. 5 Rep. 22; 3 Bro.
Parl. Cas. 359. Vide 1 Paine's R. 652; Bac. Ab. Conditions, M;
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Roll. Ab. 420; Co. Litt. 206; 1 Rop. Leg. 505; Swinb. pt. 4,
s. 6; Inst. 2, 4, 10; Dig. 28, 7, 1; Id. 44, 7, 31; Code 6,
25, 1; 6 Toull. n. 486, 686 and the article Impossibility.
18. A positive condition requires that the event contemplated
shall happen; as, If I marry. Poth. Ob. part 2, c. 3, art. 1,
§1. 19. A negative condition requires that the event contemplated
shall not happen as If I do not marry. Potb. Ob. n. 200.
20. A copulative condition, is one of several distinct-matters,
the whole of which are made precedent to the vesting of an estate
or right. In this case the entire condition must be performed, or
the estate or right can never arise or take place. 2 Freem. 186.
Such a condition differs from a disjunctive condition, which
gives to the party the right to perform the one or the other;
for, in this case, if one becomes impossible by the act of God,
the whole will, in general, be excused. This rule, however, is
not without exception. 1 B. & P. 242; Cro. Eliz. 780; 5 Co. 21;
1 Lord Raym. 279. Vide Conjunctive; Disjunctive.
21. A disjunctive condition is one which gives the party to be
affected by it, the right to perform one or the other of two
alternatives.
22. A consistent condition is one which agrees with other parts
of the contract.
23. A repugnant condition is one which is contrary to the
contract; as, if I grant to you a house and lot in fee, upon
condition that you shall not aliene, the condition is repugnant
and void, as being inconsistent with the estate granted. Bac. Ab.
Conditions L; 9 Wheat. 325; 2 Ves. jr. 824.
24. A resolutory condition in the civil law is one which has
for its object, when accomplished the revocation of the principal
obligation. This condition does not suspend either the existence
or the execution of the obligation, it merely obliges the
creditor to return what he has received.
25. A suspensive condition is one which susends the fulfilment
of the obligation until it has been performed; as, if a man bind
himself to pay one -hundred dollars, upon condition that the ship
Thomas Jefferson shall arrive from Europe. The obligation, in
this case, is suspended until the arrival of the ship, when the
condition having been performed, the obligation becomes absolute
, and it is no longer conditional. A suspensive condition is in
fact a condition precedent.
26. Pothier further divides conditions into potestative, casual
and mixed.
27. A potestative condition is that which is in the power of
the person in whose favor it is contracted; as, if I engage to
give my neighbor a sum of money, in case he outs down a tree
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which obstructs my. prospect. Poth. Obl. Pt. 2, c. 3, art. 1, §1.
28. A casual condition is one which depends altogether upon
chance, and not in the power of the creditor, as the following:
if I have children; if I have no children; if such a vessel
arrives in the United States, &c. Poth. Ob. n. 201.
29. A mixed condition is one which depends on the will of the
creditor and of a third person; as, if you marry my cousin.
Poth. Ob. n. 201. Vide, generally, Bouv. Inst. Index, h. t.
CONDITION, persons. The situation in civil society which
creates certain relations between the individual, to whom it is
applied, and one or more others, from which mutual rights and
obligations arise. Thus the situation arising from marriage gives
rise to the conditions of husband and wife that of paternity to
the conditions of father and child. Domat, tom. 2, liv. 1, tit.
9, s. 1, n. 8.
2. In contracts every one is presume to know the condition of
the person with whom he deals. A man making a contract with an
infant cannot recover against him for a breach of the contract,
on the ground that he was not aware of his condition.
CONDITIONAL OBLIGATION. One which is superseded by a condition
under which it was created and which is not yet accomplished.
Poth. Obl. n. 176, 198.
CONDITIONS OF SALE, contracts. The terms upon which the vendor
of property by auction pro poses to sell it; the instrument
containing these terms, when reduced to writing or printing, is
also called the conditions of sale.
2. It is always prudent and advisable that the conditions of
sale should be printed and exposed in the auction room; when so
done, they are binding ou both parties, and nothing that is said
at the time of sale, to add to or vary such printed conditions,
will be of any avail. 1 H. Bl. 289 12 East, 66 Ves. 330; 15 Ves.
521; 2 Munf. Rep. 119; 1 Desauss. Ch. Rep. 573; 2 Desauss. Ch.
R. 320; 11 John. Rep. 555; 3 Camp. 285. Vide forms of
conditions of sale in Babington on Auctions, 233 to 243; Sugd.
Vend. Appx. No. 4. Vide duction; ductioneer; Puffer.
CONDONATION. A term used in the canon law. It is a forgiveness
by the husband of his wife, or by a wife of her husband, of
adultery committed, with an implied condition that the injury
shall not be repeated, and that the other party shall be treated
with conjugal kindness. 1 Hagg. R. 773; 3 Eccl. Rep. 310. See 5
Mass. 320 5 Mass. 69; 1 Johns. Ch. R. 488.
2. It may be express or implied, as, if a husband, knowing of
his wife's infidelity, cohabit with her. 1 Hagg. Rep. 789; 3
Eccl. R. 338.
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3. Condonation is not, for many rea sons, held so strictly
against a wife as against a husband. 3 Eccl. R. 830 Id. 341, n.;
2 Edw. R. 207. As all condonations, by operation of law, are
expressly or impliedly conditional, it follows that the effect is
taken off by the repetition of misconduct; 3 Eccl. R. 329 3
Phillim. Rep. 6; 1 Eccl. R. 35; and cruelty revives condoned
adultery. Worsley v. Worsley, cited in Durant v. Durant, 1 Hagg.
Rep. 733; 3 Eccl. Rep. 311.
4. In New York, an act of cruelty alone, on the part of the
husband, does not revive condoned adultery, to entitle the wife
to a divorce. 4 Paige's R. 460. See 3 Edw. R. 207.
5. Where the parties have separate beds, there must, in order
to found condonation, be something of matrimonial intercourse
presumed; it does not rest merely on the wife's not. withdrawing
herself. 3 Eccl. R. 341, n.; 2 Paige, R. 108.
6. Condonation is a bar to a sentence of divorce. 1 Eccl. Rep.
284; 2 Paige, R. 108. In Pennsylvania, by the Act of the 13th of
March, 1815, §7, 6 Reed's Laws of Penna. 288, it is enacted that
" in any suit or action for divorce for cause of adultery, if the
defendant shall allege and prove that the plaintiff has admitted
the defendant into conjugal society or embraces, after he or she
knew of the criminal fact, or that the plaintiff (if the husband)
allowed of his wife's prostitutions, or received hire, for them,
or exposed his wife to lewd company, whereby she became ensnared
to the crime aforesaid, it shall be a good defence, and perpetual
bar against the same." The same rule may be found, perhaps, in
the codes of most civilized countries. Villanova Y Manes, Materia
Criminal Forense, Obs. 11, c. 20, n. 4. Vide, generally, 2 Edw.
207; Dev. Eq. R. 352 4 Paige, 432; 1 Edw. R. 14; Shelf. on M.
& D. 445; 1 John. Ch. R. 488 4 N. Hamp. R. 462; 5 Mass. 320.
CONDUCT, law of nations. This term is used in the phrase safe
conduct, to signify the security given, by authority of the
government, under the great seal, to a stranger, for his quietly
coming into and passing out of the territories over which it has
jurisdiction. A safe conduct differs from a passport; the former
is given to enemies, the latter to friends or citizens.
CONDUCT MONEY. The money advanced to a witness who has been
subpoenaed to enable him to attend a trial, i's so called.
CONDUCTOR OPERARUM, civil law. One who undertakes, for a
reward, to perform a job or piece of work for another. See
Locator Operis.
CONFEDERACY, intern. law. An agreement between two or more
states or nations, by which they unite for their mutual
protection and good. This term is applied to such agreement
between two independent nations, but it is used to signify the
union of different states of the same nation, as the confederacy
of the states.
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2. The original thirteen states, in 1781, adopted for their
federal government the " Articles of confederation and perpetual
union between the States," which continued in force until the
present constitution of the United States went into full
operation, on the 30th day of April, 1789, when president
Washington was sworn into office. Vide 1 Story on the Const. B.
2, c. 3 and 4.
CONFEDERACY, crim. law. An agreement between two or more
persons to do an unlawful act, or an act, which though not
unlawful in itself, becomes so by the confederacy. The technical
term usually employed to signify this offence, is conspiracy. (q.
v.)
CONFEDERACY, equity pleading. The fourth part of a bill in
chancery usually charges a confederacy; this is either general
or special.
2. The first is by alleging a general charge of confederacy
between the defendants and other persons to injure or defraud the
plaintiff. The common form of the charge is, that the defendants,
combining and confederating together, to and with divers other
persons as yet to the plaintiff unknown, but whose names, when
discovered, he prays may be inserted in the bill, and they be
made parties thereto, with proper and apt words to charge them
with the premises, in order to injure and oppress the plaintiff
in ti e premises, do absolutely refuse, &c. Mitf. Eq. Pl. by
Jeremy, 40; Coop. Eq. Pl. 9 Story, Eq. Pl. §29; 1 Mont. Eq. Pl.
77; Barton, Suit in Eq. 33; Van Heyth. Eq. Drafts, 4.
3. When it is intended to rely on a confederacy or combination
as a ground of equitable jurisdiction, the confederacy must be
specially charged to justify an assumption of jurisdiction. Mitf.
Eq. Pl. by Jeremy, 41; Story, Eq. Pl. §30.
4. A general allegation of confederacy is now considered as
mere form. Story, Eq. Pl. §29; 4 Bouv. Inst. n. 4169.
CONFEDERATION, government. The name given to that form of
government which the American colonies, on shaking off the
British yoke, devised for their mutual safety and government.
2. The articles of confederation, (q. v.) were finally adopted
on the 15th of November, 1777, and with the exception of
Maryland, which, however, afterwards also agreed to them, were
speedily adopted by the United States, and by which they were
formed into a federal bod y, and went into force on the first day
of March, 1781; 1 Story Const. §225; and so remained until the
adoption of the present constitution, which acquired the force of
the supreme law of the land on the first Wednesday of March,
1789. 5 Wheat. R. 420. Vide Articles of Confederation.
CONFERENCE, practice, legislation. In practice, it is the
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meeting of the parties or their attorneys in a cause, for the
purpose of endeavoring to settle the same.
2. In legislation, when the senate and house of representatives
cannot agree on a bill or resolution which it is desirable should
be passed, committees are appointed by the two bodies
respectively, who are called committees of confrence, and whose
duty it is, if possible, to -reconcile the differences between
them.
3. In the French law, this term is used to signify the
similarity and comparison between two laws, or two systems of
law; as the Roman and the common law. Encyclopedie, h. t.
4. In diplomacy, conferences are verbal explanations between
ministers of two nations at least, for the purpose of
accelerating various difficulties and delays, necessarily
attending written communications.
CONFESSION, crim. law, evidence. The voluntary declaration made
by a person who has committed a crime or misdemeanor, to another,
of the agency or participation which he had in the same.
2. When made without bias or improper influence, confessions
are admissible in evidence, as the highest and most satisfactory
proof: because it is fairly presumed that no man would make such
a confession against himself, if the facts confessed were not
true but they are excluded, if liable to the of having been
unfairly obtained.
3. Confessions should be received with great caution, as they
are liable to many objections. There is danger of error from the
misapprehension of witnesses, the misuse of words, the failure of
a party to express his own meaning, the prisoner being oppressed
by his unfortunate situation, and influenced by hope, fear, and
sometimes a worse motive, to male an untrue confession. See the
case of the two Boorns in Greenl. Ev . §214, note 1; North
American Review, vol. 10, p. 418; 6 Carr. & P. 451; Joy on
Confess. s. 14, p. 100; and see 1 Chit. Cr. Law, 85.
4. A confession must be made voluntarily, by the party himself,
to another person. 1. It must be voluntary. A confession, forced
from the mind by the flattery of hope, or the torture of fear,
comes in so questionable a shape, when it is to be considered as
evidence of guilt, that Lo credit ought to be given to it. 1
Leach, 263. This is the principle, but what amounts to a promise
or a threat, is not so easily defined. Vide 2 East, P. C. 659; 2
Russ. on Cr. 644 4 Carr. & Payne, 387; S. C. 19 Eng. Com. L.
Rep. 434; 1 Southard, R. 231 1 Wend. R. 625; 6 Wend. R. 268 5
Halst. R. 163 Mina's Trial, 10; 5 Rogers' Rec. 177 2 Overton, R.
86 1 Hayw. (N. C.) R, 482; 1 Carr. & Marsh. 584. But it must be
observed that a confession will be considered as voluntarily
made, although it was made after a promise of favor or threat of
punishment, by a person not in authority, over the prisoner. If,
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however, a person having such authority over him be present at
the time, and he express no dissent, evidence of such confession
cannot be given. 8 Car. & Payne, 733.
5. - 2. The confession must be made by the party to be affected
by it. It is evidence only against him. In case of a conspiracy,
the acts of one conspirator are the acts of all, while active in
the progress of the conspiracy, but after it is over, the
confession of one as to the part he and others took in the crime,
is not evidence against any but himself. Phil. Ev. 76, 77; 2
Russ. on Cr. 653.
6. - 3. The confession must be to another person. It may be
made to a private individual, or under examination before a
magistrate. The whole of the confession must be taken, together
with whatever conversation took place at the time of the
confession. Roscoe's Ev. N. P. 36; 1 Dall. R. 240 Id. 392; 3
Halst. 27 5 .2 Penna. R. 27; 1 Rogers' Rec. 66; 3 Wheeler's C.
C. 533; 2 Bailey's R. 569; 5 Rand. R. 701.
7. Confession, in another sense, is where a prisoner being
arraigned for an offence, confesses or admits the crmie with
which he is charged, whereupon the plea of guilty is entered. Com
Dig. Indictment, K; Id. Justices, W 3; Arch. Cr. Pl. 1 2 1;
Harr. Dig. b. t.; 20 Am. Jur. 68; Joy on Confession.
8. Confessions are classed into judicial and extra judicial.
Judicial confessions are those made before a magistrate, or in
court, in the due course of legal proceedings; when made freely
by the party, and with a full and perfect knowledge of their
nature and consequences, they are sufficient to found a
conviction. These confessions are such as are authorized by a
statute, as to take a preliminary examination in writing; or
they are by putting in the plea of guilty to an indictment. Extra
judicial confessions are those wbich are made by the part
elsewhere than before a magistrate or in open court. 1 Greenl.
Ev. §216. See, generally, 3 Bouv. Inst. n. 3081-2.
CONFESSIONS AND AVOIDANCE, pleadings. Pleas in confession and
avoidance are those which admit the averments in the plaintiff Is
declaration to be true, and allege new facts which obviate and
repel their legal effects.
2. These pleas are to be considered, first, with respect to
their division. Of pleas in confession and avoidance, some are
distinguished (in reference to their subjectmatter) as pleas in
justification or excuse, others as pleas in discharge. Com. Dig.
Pleader, 3 M 12. The pleas of the former class, show some
justification or excuse of the matter charged in the declaration;
of the latter, some discharge or release of that matter. The
effect of the former, therefore, is to show that the plaintiff
never had any right of action, because the act charged was
lawful; the effect of the latter, to show that though he had
once a right of action, it is discharged or released by some
Bouvier's Law Dictionary : C1 : Page 118 of 124
matter subsequent. Of those in justification or excuse, the plea
of son assault demesne is an example; of those in discharge, a
release. This division applies to pleas only; for replications
and other subsequent pleadings in confession and avoidance, are
not subject to such Classification;
3. Secondly, they are to be considered in respect to their
form. As to their form, the reader is referred to Stephens on
Pleading, 72, 79, where forms are given. In common with all
pleadings whatever, which do not tender issue, they always
conclude with a verification and prayer of judgment.
4. Thirdly, with respect to the quality of these pleadings, it
is a rule that every pleading by way of confession and avoidance
must give color. (q. v.) And see, generally, 1 Chit. Pl. 599; 2
Chit. Pl, 644; Co. Litt. 282, b; Arch. Civ. Pl. 215; Dane's
Ab. Index, ii. t.; 3 Bouv. Inst. n. 2921, 293 1.
CONFESSOR, evid. A priest of some Christian sect, who receives
an account of the sins of his people, and undertakes to give them
absolution of their sins.
2. The general rule on the subject of giving evidence of
confidential communications is, that the privilege is confined to
counsel, solicitors, and attorneys, and the interpreter between
the counsel and the client. Vide Confidential Communications.
Contrary to this general rule, it has been decided in New York,
that a priest of the Roman Catholic denomination could not be
compelled to divulge secrets which he had received in auricular
confession. 2 City Hall Rec. 80, n.; Joy on Conf. §4, p. 49. See
Bouv. Inst. n. 3174 and note.
CONFIDENTIAL COMMUNICATIONS, evidence. Whatever is communicated
professedly by a client to his counsel, solicitor, or attorney,
is considered as a confidential communication.
2. This the latter is not permitted to divulge, for this is the
privilege of the client and not of the attorney.
3. The. rule is, in general, strictly confined to counsel,
solicitors or attorneys, except, indeed, the case of an
interpreter between the counsel and client, when the privilege
rests upon the same grounds of necessity. 3 Wend. R. 339. In New
York, contrary to this general rule, tinder the statute of that
state, it has been decided that information disclosed to a
physician while attending upon the defendant in his professional
character, which information was necessary to enable the witness
to prescribe for his patient, was a confidential communication
which the witness need not have testified. about; and in a case
where such evidence had been received by the master, it was
rejected. 4 Paige, R. 460.
4. As to the matter communicated, it extends to all cases where
the party applies for professional assistance. 6 Mad. R. 47; 14
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Pick., R. 416. But the privilege does not extend to extraneous or
impertinent communications; 3 John. Cas. 198; nor to
information imparted to a counsellor in the character of a
friend, and not as counsel. 1 Caines' R. 157.
5. The cases in which communications to counsel have been
holden not to be privileged may be classed under the following
heads: 1. When the communication was made before the attorney was
employed as such; 1 Vent. 197; 2 Atk. 524; 2. after the
attorney's employment has ceased 4 T. R. 431; 3. when the
attorney was consulted because he was an attorney, yet he refused
to act as such, and was therefore only applied to as a friend; 4
T. R. 753; 4. where a fact merely took place in the presence of
the attorney, Cowp. 846; 2 Ves. 189; 2 Curt. Eccl. R. 866; but
see Str. 1122; 5. when the matter communicated was not in its
nature private, and could in no sense be termed the subject of a
confidential communication; 7 East,, R. 357; 2 B. & B. 176; 3
John' Cas. 198; 6. when the things disclosed had no reference to
professional employment, though disclosed while the relation of
attorney and client subsisted; Peake's R. 77; 7. when the
attorney made himself a subscribing witness; 10 Mod. 40 2 Curt.
Eccl. R. 866; 3 Burr. 1687
8. when he was directed to plead the facts to wbich he is
called to testify. 7 N. S. 179. See a well written article! on
this subject in the American Jurist, vol. xvii. p. 304. Vide,
generally, Stark. Ev. h. t.; 1 Greenl. Ev. §§236-247; 1 Peters'
R. 356; 1 Root, 383; Whart. Dig. 275; Caryls' R. 88, 126, 143;
Toth. R. 177; Peake's Cas. 77 2 Stark. Cas. 274; 4 Wash. C. C.
R. 718; 11 Wheat. 280; 3 Yeates, R. 4; 4 Munf. R. 273 1
Porter, R. 433; Wright, R. 136; 13 John. R. 492. As to a
confession made to a catholic priest, see 2 N. Y. City Hall Rec.
77. Vide 2 Ch. Pr. 18-21; Confessor.
CONFIRMATIO CHARTORUM. The name given to a statute passed
during reign of the English king Edward I. 25 Ed. I., c. 6. See
Bac. Ab. Smuggling, B.
CONFIRMATION, contracts, conveyancing. 1 . A contract by which
that which was voidable, is made firm and unavoidable.
2. A species of conveyance.
2. - 1. When a contract has been entered into by a stranger
without authority, he in whose name it has been made may, by his
own act, confirm it; or if the contract be made by the party
himself in an informal and voidable manner, he may in a more
formal manner confirm and render it valid; and in that event it
will take effect, as between the parties, from the original
making. To make a valid confirmation, the party must be apprised
of, his rights, and where there has been a fraud in the
transaction, he must be award of it, and intend to confirm his
contract. Vide 1 Ball & Beatty, 353; 2 Scho. & Lef. 486; 12
Ves. 373; 1 Ves. Jr. 215; Newl. Contr. 496; 1 Atk. 301; 8
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Watts. R. 280.
3. - 2. Lord Coke defines a confirmation of an estate, to be "a
conveyance of an estate or right in esse, whereby a voidable
estate is made sure and unavoidable; or where a particular
estate is increased."
4. The first part of this definition may be illustrated by the
following case, put by Littleton, §516; where a person lets land
to another for the term of his life, who lets the same to another
for forty years, by force of which he is in possession; if the
Iessor for life confirms the estate of the tenant for years by
deed, and afterwards the tenant for life dies, during the term;
this deed will operate as a confirmation of the term for years..
As to the latter branch of the definition; whenever a
confirmation operates by way of increasing the estate, it is
similar in every respect to a release that operates by way of
enlargement, for there must be privity of estate, and proper
words of limitation. The proper technical words of a confirmation
are, ratify and confirm; although it is usual and prudent to
insert also the words given and granted. Watk. Prin. Convey.
cbap. vii.
5. A confirmation does not strengthen a void estate.
Confirmatio est nulla, ubi donum precedens est invalidum, et ubi
donatio nulla est nec valebit confirmatio. For confirmation may
make a voidable or defeasible estate good, but cannot operate on
an estate void in law. Co. Litt. 295. The canon law agrees with
this rule, and hence the maxim , qui confirmat nihil dat. Toull.
Dr. Civ. Fr. liv. 3, t. 3, c. 6, n. 476. Vide Vin. Ab. h. t.;
Com. Dig. 11. t.; Ayliffe's Pand. *386; 1 Chit. Pr. 315; 3
Gill & John. 290; 3 Yerg. R. 405; Co. Litt. 295; Gilbert on
Ten. 75; 1 Breese's R. 236; 9 Co. 142, a; 2 Bouv. Inst. n.
2067-9.
6. An infant is said to confirm his acts performed during
infancy, when, after coming to full age, be expressly approves of
them, or does acts from which such confirmation way be implied.
Sec Ratification.
CONFIRMEE. He to whom a confirmation is made.
CONFIRMOR. He who makes a confirmation to another.
CONIFISCATION. The act by which the estate, goods or chattels
of a person who has been guilty of some crime, or who is a public
enemy, is declared to be forfeited for the benefit of the public
treasury. Domat, Droit Public, liv. 1, tit. 6, s. 2, n. 1. When
property is forfeited as a punishment for the commission of
crime, it is usually called a forfeiture. 1 Bl. Com. 299.
2. It is a general rule that the property of the subjects of an
enemy found in the country may be appropriated by the government,
without notice, unless there be a treaty to the contrary. 1
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Gallis. R. 563; 8 Dall. R. 199; N. Car. Cas. 79. It has been
frequently provided by treaty that foreign subjects should be
permitted to remain and continue their business, notwithstanding
a rupture between the governments, so long as they conducted
themselves innocently and when there was no such treaty, such a
liberal permission has been announced in the very declaration of
war. Vattel, liv. 3, c. 4, §63. Sir Michael Poster, (Discourses
on High Treason, p. 185, 6, mentions several instances of such
declarations by the king of Great Britain; and he says that
aliens were thereby enabled to acquire personal chattels and to
maintain actions for the recovery of their personal rights, in as
full a manner as alien friends. 1 Kent, Coin. 57.
3. In the United States, the broad principle has been assumed
"that war gives to the sovereign full right to take the persons
and confiscate the property of the enemy, wherever found. The
mitigations of this rigid rule, which the policy of modern times
has introduced into practice, will more or less affect the
exercise of this right, but cannot impair the right itself." 8
Cranch, 122-3. Commercial nations have always considerable
property in the possession of their neighbors: and when war
breaks out the question, what shall be done with enemies property
found in the country, is one rather of policy than of law, and is
properly addressed to the consideration of the legislature, and
not to courts of law. The strict right of confiscation exists in
congress; and without a legislative act authorizing the
confiscation of enemies' property, it cannot be condemned. 8
Cranch, 128, 129. See Chit. Law of Nations, c. 3; Marten's Law
of Nat. lib. 8, c. 3, s. 9; Burlamaqui, Princ. of Pol. Law, part
4, c. 7; Vattel, liv. 3, c. 4, §63.
4. The claim of a right to confiscate debts, contracted by
individuals in time of peace, and which remain due to subjects of
the enemy in time of war, rests very much upon the same
principles as that concerning the enemy's tangible property,
found in the country at the commencement of the war. But it is
the universal practice to forbear to seize and confiscate debts
and credits. 1 Kent, Com. 64, 5; vide 4 Cranch, R. 415 Charlt.
140; 2 Harr. & John. 101, 112, 471 6 Cranch, R. 286; 7 Conn. R.
428: 2 Tayl. R. 115; 1 Day, R. 4; Kirby, R. 228, 291 C. & N.
77, 492.
CONFLICT. The opposition or difference between two judicial
jurisdictions, when they both claim the right to decide a cause,
or where they both declare their incompetency. The first is
called a positive conflict, and the, latter a negative conflict.
CONFLICT OF JURISDICTION. The contest between two officers, who
each claim to have cognizance of a particular case.
CONFLICT OF LAWS. This phrase is used to signify that the laws
of different countries, on the subject-matter to be decided, are
in opposition to each other; or that certain laws of the same
country are contradictory.
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2. When this happens to be the case, it becomes necessary to
decide which law is to be obeyed. This subject has occupied the
attention and talents of some of the most learned jurists, and
their labors are comprised in many volumes. A few general rules
have been adopted on this subject, which will here be noticed.
3. - 1. Every nation possesses an exclusive sovereignty and
jurisdiction within its own territory. The laws of every state,
therefore, affect and bind directly all property, whether real or
personal, within its territory; and all persons who are resident
within it, whether citizens or aliens, natives or foreigners;
and also all contracts made, and acts done within it. Vide Lex
Loci contractus; Henry, For. Law, part 1, c. 1, 1; Cowp. It.
208; 2 Hag. C. R. 383. It is proper, however, to observe, that
ambassadors and other public ministers, while in the territory of
the state to, which they are delegates, are exempt from the local
jurisdiction. Vide Ambassador. And the persons composing a
foreign army, or fleet, marching through, or stationed in the
territory of another state, with whom the foreign nation is in
amity, are also exempt from the civil and criminal jurisdiction
of the place. Wheat. Intern. Law, part 2, c. 2, §10; Casaregis,
Disc. 136-174 vide 7 Cranch, R. 116.
4. Possessing exclusive authority, with the above
qualification, a state may regulate the manner and circumstances,
under which property, whether real or personal, in possession or
in action, within it shall be held, transmitted or transferred,
by sale, barter, or bequest, or recovered or enforced; the
condition, capacity, and state of all persons within it the
validity of contracts and other acts done there; the resulting
rights and duties growing out of these contracts and acts; and
the remedies and modes of administering justice in all cases.
Story, Confl. of Laws, §18; Vattel, B. 2, c. 7, §84, 85; Wheat.
Intern. Law, part 1, c. 2, §5.
5. - 2. A state or nation cannot, by its laws, directly affect
or bind property out of its own territory, or persons not
resident therein, whether they are natural born or naturalized
citizens or subjects, or others. This result flows from the
principle that each sovereignty is perfectly independent. 13
Mass. R. 4. To this general rule there appears to be an
exception, which is this, that a nation has a right to bind its
own citizens or subjects by its own laws in every place; but
this exception is not to be adopted without some qualification.
Story, Confl. of Laws, §21; Wheat. Intern. Law, part 2, c. 2,
§7.
6. - 3. Whatever force and obligation the laws of one, country
have in another, depends upon the laws and municipal regulations
of the latter; that is to say, upon its own proper jurisprudence
and polity, and upon its own express or tacit consent. Huberus,
lib. 1, t. 3, §2. When a statute, or the unwritten or common law
of the country forbids the recognition of the foreign law, the
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latter is of no force whatever. When both are silent, then the
question arises, which of the conflicting laws is to have effect.
Whether the one or the other shall be the rule of decision must
necessarily depend on a variety of circumstances, which cannot be
reduced to any certain rule. No nation will suffer the laws of
another to interfere with her own, to the injury of her own
citizens; and whether they do or not, must depend on the
condition of the country in which the law is sought to be
enforced, the particular state of her legislation, her policy,
and the character of her institutions. 2 Mart. Lo. Rep. N. S.
606. In the conflict of laws, it must often be a matter of doubt
which should prevail; and, whenever a doubt does exist, the
court which decides, will prefer the law of its own country to
that of the stranger. 17 Mart. Lo. R. 569, 595, 596. Vide,
generally, Story, Confl. of Laws; Burge, Confl. of Laws;
Liverm. on Contr. of Laws; Foelix, Droit Intern.; Huberus, De
Conflictu Leguin; Hertius, de Collisions Legum; Boullenois,
Traits de Ia personnalite' et de la realite de lois, coutumes et
statuts, par forme d'observations; Boullenois, Dissertations sur
des questions qui naissent de la contrariete des lois, et des
coutumes.
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