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

   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.

          Bouvier's Law Dictionary : C1 : Page 1 of 124

   §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

   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.

          Bouvier's Law Dictionary : C1 : Page 2 of 124

   CAMERA STELLATA,  Eng. law. The court of the Star Chamber, now

    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

  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.

          Bouvier's Law Dictionary : C1 : Page 3 of 124

   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

          Bouvier's Law Dictionary : C1 : Page 4 of 124

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,

   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.

          Bouvier's Law Dictionary : C1 : Page 5 of 124

   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.

   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

          Bouvier's Law Dictionary : C1 : Page 6 of 124

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.

          Bouvier's Law Dictionary : C1 : Page 7 of 124

   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.

          Bouvier's Law Dictionary : C1 : Page 8 of 124

   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

  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,

   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

          Bouvier's Law Dictionary : C1 : Page 9 of 124

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,

          Bouvier's Law Dictionary : C1 : Page 10 of 124

   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

          Bouvier's Law Dictionary : C1 : Page 11 of 124

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

          Bouvier's Law Dictionary : C1 : Page 12 of 124

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

   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

   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

          Bouvier's Law Dictionary : C1 : Page 13 of 124

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,

   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

          Bouvier's Law Dictionary : C1 : Page 14 of 124

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

  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.

          Bouvier's Law Dictionary : C1 : Page 15 of 124

   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.

   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;

          Bouvier's Law Dictionary : C1 : Page 16 of 124

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.

          Bouvier's Law Dictionary : C1 : Page 17 of 124

   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

   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

          Bouvier's Law Dictionary : C1 : Page 18 of 124

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

   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.

          Bouvier's Law Dictionary : C1 : Page 19 of 124

   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,

  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,

          Bouvier's Law Dictionary : C1 : Page 20 of 124

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.

          Bouvier's Law Dictionary : C1 : Page 21 of 124

  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.

          Bouvier's Law Dictionary : C1 : Page 22 of 124

   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

          Bouvier's Law Dictionary : C1 : Page 23 of 124

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

          Bouvier's Law Dictionary : C1 : Page 24 of 124

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

          Bouvier's Law Dictionary : C1 : Page 25 of 124

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

   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.

          Bouvier's Law Dictionary : C1 : Page 26 of 124

   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

   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.

  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

          Bouvier's Law Dictionary : C1 : Page 27 of 124

equity, can  effect be  given to it. 1 Russ. & M. 116;  1 Ch. Pr.

   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.

  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

   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.

          Bouvier's Law Dictionary : C1 : Page 28 of 124

   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

   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.

  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.

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.

          Bouvier's Law Dictionary : C1 : Page 29 of 124

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,

   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.

          Bouvier's Law Dictionary : C1 : Page 30 of 124

  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;

          Bouvier's Law Dictionary : C1 : Page 31 of 124

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

   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

  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

          Bouvier's Law Dictionary : C1 : Page 32 of 124

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

   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

          Bouvier's Law Dictionary : C1 : Page 33 of 124

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.

          Bouvier's Law Dictionary : C1 : Page 34 of 124

  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

   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

          Bouvier's Law Dictionary : C1 : Page 35 of 124

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.

   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.

  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

          Bouvier's Law Dictionary : C1 : Page 36 of 124

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

          Bouvier's Law Dictionary : C1 : Page 37 of 124

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

          Bouvier's Law Dictionary : C1 : Page 38 of 124

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

          Bouvier's Law Dictionary : C1 : Page 39 of 124

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.

   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

   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.

   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.

   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

          Bouvier's Law Dictionary : C1 : Page 40 of 124

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

          Bouvier's Law Dictionary : C1 : Page 41 of 124

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.

   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.

          Bouvier's Law Dictionary : C1 : Page 42 of 124

   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.

   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

   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.

          Bouvier's Law Dictionary : C1 : Page 43 of 124

  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.

  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

  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.

          Bouvier's Law Dictionary : C1 : Page 44 of 124

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

   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.

          Bouvier's Law Dictionary : C1 : Page 45 of 124

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

          Bouvier's Law Dictionary : C1 : Page 46 of 124

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.

   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

          Bouvier's Law Dictionary : C1 : Page 47 of 124

   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.

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

          Bouvier's Law Dictionary : C1 : Page 48 of 124

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

   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

  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,

  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

          Bouvier's Law Dictionary : C1 : Page 49 of 124

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

  3. Bonds are assignable in Pennsylvania, and perhaps some other

          Bouvier's Law Dictionary : C1 : Page 50 of 124

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

          Bouvier's Law Dictionary : C1 : Page 51 of 124

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

  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.

          Bouvier's Law Dictionary : C1 : Page 52 of 124

   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.

  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

  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

          Bouvier's Law Dictionary : C1 : Page 53 of 124

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

   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

          Bouvier's Law Dictionary : C1 : Page 54 of 124

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

          Bouvier's Law Dictionary : C1 : Page 55 of 124

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

   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

          Bouvier's Law Dictionary : C1 : Page 56 of 124

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.

          Bouvier's Law Dictionary : C1 : Page 57 of 124

  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.

   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.

          Bouvier's Law Dictionary : C1 : Page 58 of 124

  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

   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.

          Bouvier's Law Dictionary : C1 : Page 59 of 124

  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.

          Bouvier's Law Dictionary : C1 : Page 60 of 124

   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.

          Bouvier's Law Dictionary : C1 : Page 61 of 124

   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.

          Bouvier's Law Dictionary : C1 : Page 62 of 124

   CLEMENCY. The  disposition to  treat with leniency. See Mercy;

    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

   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.

          Bouvier's Law Dictionary : C1 : Page 63 of 124

   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.

          Bouvier's Law Dictionary : C1 : Page 64 of 124

   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).

          Bouvier's Law Dictionary : C1 : Page 65 of 124

   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

   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.

          Bouvier's Law Dictionary : C1 : Page 66 of 124

   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.

   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,

  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

          Bouvier's Law Dictionary : C1 : Page 67 of 124

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.

    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 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

   CO-DEFENDANT. One  who is  made defendant  in an  action  with
another person.

          Bouvier's Law Dictionary : C1 : Page 68 of 124

   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.

          Bouvier's Law Dictionary : C1 : Page 69 of 124

   COERCION, criminal  law, contracts.  Constraint;   compulsion;

   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

   COGNISANCE, pleading.  Where the  defendant in  an  action  of

          Bouvier's Law Dictionary : C1 : Page 70 of 124

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, 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

  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.

          Bouvier's Law Dictionary : C1 : Page 71 of 124

  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

  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

          Bouvier's Law Dictionary : C1 : Page 72 of 124

   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.

   3. By  the statute  of 4  & 5 Anne, c. 16, §21, all collateral

          Bouvier's Law Dictionary : C1 : Page 73 of 124

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.

          Bouvier's Law Dictionary : C1 : Page 74 of 124

   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

          Bouvier's Law Dictionary : C1 : Page 75 of 124

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,

  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

  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

          Bouvier's Law Dictionary : C1 : Page 76 of 124

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

   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

          Bouvier's Law Dictionary : C1 : Page 77 of 124

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

   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

          Bouvier's Law Dictionary : C1 : Page 78 of 124

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

   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

  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.

          Bouvier's Law Dictionary : C1 : Page 79 of 124

   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

          Bouvier's Law Dictionary : C1 : Page 80 of 124

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

     COMMENDATORS,  eccl.   law.  Secular   persons   upon   whom
ecclesiastical  benefices   are  bestowed,   because  they   were
commended and  instructed to  their oversight:  they  are  merely

   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

          Bouvier's Law Dictionary : C1 : Page 81 of 124

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

   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.

          Bouvier's Law Dictionary : C1 : Page 82 of 124

   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.

   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

          Bouvier's Law Dictionary : C1 : Page 83 of 124

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

   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

          Bouvier's Law Dictionary : C1 : Page 84 of 124

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,

   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.

   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

          Bouvier's Law Dictionary : C1 : Page 85 of 124

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;

   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

          Bouvier's Law Dictionary : C1 : Page 86 of 124

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

   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.

   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

          Bouvier's Law Dictionary : C1 : Page 87 of 124

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
 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

   COMMON CARRIER,  contracts. One  who undertakes  for  hire  or
reward to  transport the  goods of  any who  may choose to employ

          Bouvier's Law Dictionary : C1 : Page 88 of 124

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

          Bouvier's Law Dictionary : C1 : Page 89 of 124

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

   11. -  4. Not  to overload the coach either with passengers or

   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,

   14. - 2. To use all the ordinary precautions for the safety of
passengers on the road.

          Bouvier's Law Dictionary : C1 : Page 90 of 124

  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

  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,

          Bouvier's Law Dictionary : C1 : Page 91 of 124

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,

   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

          Bouvier's Law Dictionary : C1 : Page 92 of 124

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;

  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 NUISANCE.  One which affects the public in general, and
not merely  some particular  person.  1  Hawk.  P.  C.  197.  See

  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

          Bouvier's Law Dictionary : C1 : Page 93 of 124

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.

          Bouvier's Law Dictionary : C1 : Page 94 of 124

   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

  COMMONS, Eng. law. Those subjects of the English nation who are
not noblemen.  They are represented in parliament in the house of

   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;

  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,

          Bouvier's Law Dictionary : C1 : Page 95 of 124

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.

          Bouvier's Law Dictionary : C1 : Page 96 of 124

  6. In another sense, community is the right which all men have,
according to  the laws of nature, to use all things. Wolff, Inst.

  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

   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

   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

   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

          Bouvier's Law Dictionary : C1 : Page 97 of 124

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

   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;

   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

          Bouvier's Law Dictionary : C1 : Page 98 of 124

   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;

          Bouvier's Law Dictionary : C1 : Page 99 of 124

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.

          Bouvier's Law Dictionary : C1 : Page 100 of 124

   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

   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.

   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

          Bouvier's Law Dictionary : C1 : Page 101 of 124

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

          Bouvier's Law Dictionary : C1 : Page 102 of 124

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

          Bouvier's Law Dictionary : C1 : Page 103 of 124


  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.

  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

          Bouvier's Law Dictionary : C1 : Page 104 of 124

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

  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

          Bouvier's Law Dictionary : C1 : Page 105 of 124

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

          Bouvier's Law Dictionary : C1 : Page 106 of 124

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.

  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;

          Bouvier's Law Dictionary : C1 : Page 107 of 124

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,

          Bouvier's Law Dictionary : C1 : Page 108 of 124

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.

          Bouvier's Law Dictionary : C1 : Page 109 of 124

   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

          Bouvier's Law Dictionary : C1 : Page 110 of 124

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.

   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

   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.

          Bouvier's Law Dictionary : C1 : Page 111 of 124

   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

  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;

          Bouvier's Law Dictionary : C1 : Page 112 of 124

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

  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

          Bouvier's Law Dictionary : C1 : Page 113 of 124

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.

          Bouvier's Law Dictionary : C1 : Page 114 of 124

   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.

          Bouvier's Law Dictionary : C1 : Page 115 of 124

   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.

   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

          Bouvier's Law Dictionary : C1 : Page 116 of 124

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

   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,

          Bouvier's Law Dictionary : C1 : Page 117 of 124

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

          Bouvier's Law Dictionary : C1 : Page 119 of 124

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

          Bouvier's Law Dictionary : C1 : Page 120 of 124

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.

   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

          Bouvier's Law Dictionary : C1 : Page 121 of 124

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.

          Bouvier's Law Dictionary : C1 : Page 122 of 124

   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,

   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

          Bouvier's Law Dictionary : C1 : Page 123 of 124

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

          Bouvier's Law Dictionary : C1 : Page 124 of 124

                             #  #  #

Return to Table of Contents for

Bouvier's Law Dictionary