C3:


   COURT, practice.  A court  is an  incorporeal political being,
which requires  for its existence, the presence of the judges, or
a competent  number of  them, and a clerk or prothonotary, at the
time during which, and at the place where it is by law authorized
to be  held;   and the performance of some public act, indicative
of a design to perform the functions of a court.

   2. In  another sense,  the  judges,  clerk,  or  prothonotary,
counsellors and  ministerial officers, are said to constitute the
court.

  3. According to Lord, Coke, a court is a place where justice is
judicially administered. Co. Litt. 58, a.

   4. The  judges, when duly convened, are also called the court.
Vide 6  Vin. Ab.  484;   Wheat .  Dig. 127;  Merl. Rep. h. t.;  3
Com. Dig. 300;  8 Id. 386;  Dane's Ab. Index, h. t.;  Bouv. Inst.
Index, h. t.

   5. It  sometimes happens that the judges composing a court are
equally divided  on questions  discussed before them. It has been
decided, that  when such  is the  case on  an appeal  or writ  of
error, the  judgment or decree is affirmed. 10 Wheat. 66;  11 Id.
59. If it occurs on a motion in arrest of judgment, a judgment is
to be  entered on  the verdict.  2 Dall. Rep. 388. If on a motion
for a  new trial,  the motion  is rejected. 6 Wheat. 542. If on a
motion to enter judgment on a verdict, the judgment is entered. 6
Binn. 100.  In England,  if the house of lords be equally divided
on a  writ of error, the judgment of the court below is affirmed.
1 Arch.  Pr. 235. So in Cam. Scacc. 1 Arch. Pr. 240. But in error
coram nobis,  no judgment  can be given if the judges are equally
divided, except  by consent. 1 Arch. Pr. 246. When the judges are
equally divided  on the  admission of  testimony,  it  cannot  be
received. But  see 3 Yeates, 171. Also, 2 Bin. 173;  3 Bin. 113 4
Bin. 157;   1  Johns. Rep.  118 4  Wash. C.  C. Rep.  332, 3. See
Division of Opinion.

   6. Courts  are of  various kinds.  When considered as to their
powers, they  are of  record and not of record;  Bac. Ab. Courts,
D;  when compared. to each other, they are supreme, superior, and
inferior, Id.;   when examined as to their original jurisdiction,
they are  civil or criminal;  when viewed as to their territorial
jurisdiction, they  are central  or local;   when  divided as  to
their object,  they are  courts of  law, courts of equity, courts
martial, admiralty  courts, and  ecclesiastical courts.  They are
also courts of original jurisdiction, courts of error, and courts
of appeal. Vide Open Court.

   7. Courts  of record  cannot be deprived of their jurisdiction
except by  express negative  words. 9  Serg. & R. 298;  3 Yeates,
479 2  Burr. 1042  1 Wm.  Bl. Rep.  285. And  such a court is the
court of common pleas in Pennsylvania. 6 Serg. & R. 246.



          Bouvier's Law Dictionary : C3 : Page 1 of 56


   8. Courts  of equity  are not,  in general,  courts of record.
Their decrees  touch the  person, not  lands. or goods. 3 Caines,
36. Yet, as to personalty, their decrees are equal to a judgment;
2. Madd.  Chan. 355;   2  Salk., 507;  1 Ver. 214;  3 Caines, 35;
and have  preference according  to priority.  3 P.  Wms. 401  n.;
Cas. Temp.  Talb. 217;   4  Bro. P.  C. 287;  4 Johns. Chan. Cas.
638. They  are also conclusive between the parties. 6 Wheat. 109.
Assumpsit will lie on a decree of a foreign court of chancery for
a sum  certain;  1 Campb. Rep. 253, per Lord Kenyon;  but not for
a sum  not ascertained.  3 Caines,  37, (n.)  In Pennsylvania, an
action at  law will  lie on  a decree of a court of chancery, but
the pleas  nil debet and nultiel record cannot be pleaded in such
an action. 9 Serg. & R. 258.

    COURT  CHRISTIAN.  An  ecclesiastical  judicature,  known  in
England, so called from its handling matters of an ecclesiastical
or religious  nature. 2  Inst. 488.  Formerly the jurisdiction of
these  courts  was  not  thus  Iimited.  The  emperor  Theodosius
promulgated  a   law  that   all  suits   (lites)  and   forensic
controversies should  be remitted  to the judgment of the church,
if either of the litigating parties should require it. Fr. Duaren
De Sac.  Minist. Eccl.  lib. 1,  c. 2.  This law  was renewed and
confirmed by Charlemagne.

   COURT OF ARCHES , eccl. law. The most ancient consistory court
belonging to  the archbishop  of  Canterbury  for  the  trial  of
spiritual causes.  It is so called, because it was anciently held
in the  church of  Saint Mary  le bow;   which  church  had  that
appellation from  its steeple,  which was  raised at the top with
stone pillars, in the manner of an arch or bow. Termes de la Ley.

  COURT OF ADMIRALTY. A court having jurisdiction of all maritime
causes. Vide  Admiralty;   Courts of the United States;  Instance
Courts;  Prize Court;  2 Chit. Pr. 508 to 538.

   COURT OF AUDIENCE, Eng. eccl. law. The name of a court kept by
the archbishop  in his palace, in which are transacted matters of
form only;  as confirmation of bishops, elections, consecrations,
and the like.

   COURT OF  COMMON PLEAS. The name of an English court which was
established on  the breaking  up  of  the  aula  regis,  for  the
determination of  pleas merely civil. It was at first ambulatory,
but was  afterwards located.  This  jurisdiction  is  founded  on
original write  issuing out  of chancery,  in the cases of common
persons. But  when an  attorney or person belonging to the court,
is plaintiff,  he sues  by writs,  of privilege,  and is  sued by
bill, which is in the nature of a petition;  both which originate
in the common pleas. See Bench;  Banc.

   2. There are courts in most of the states of the United States
which bear  the name  of common  pleas;  they have various powers
and jurisdictions.

   COURT OF  CONSCIENCE, Eng. law. The name of a court in London.
It has  equity jurisdiction  in  certain  cases.  The  reader  is
referred to Bac. Ab. Courts in London, 2.


          Bouvier's Law Dictionary : C3 : Page 2 of 56


   COURT OF  CONVOCATION, eccles.  law. The  name of  an  English
ecclesiastical court.  It is  composed of every bishop, dean, and
archdeacon, a  proctor for  the chapter, and two proctors for the
clergy of  each diocese  in the  province of  Canterbury, for the
province of York, there are two proctors for each archdeaconry.

   2. This  assembly meets  at the  time appointed  in the king's
writ, and constitute an ecclesiastical parliament. The archbishop
and his  suffragans, as  his peers,  are  sitting  together,  and
composing one  house, called  the upper  house of convocation the
deans, archdeacons,  and a  proctor  for  the  chapter,  and  two
proctors for  the clergy,  the  lower  house.  In  this  house  a
prolocutor, performing the duty of a president, is elected.

   8. The  jurisdiction of  this tribunal  extends to  matters of
heresy, schisms,  and  other  mere  spiritual  or  ecclesiastical
causes. Bac. Ab. Ecclesiastical Courts, A 1.

   COURT OF  EXCHEQUER, Eng.  law. A  court of  record  anciently
established for  the trial of all matters relating to the revenue
of the crown. Bac. Ab. h. t.

   COURT OF  FACULTIES, Eng. eccl. law. The name of a court which
belongs to  the archbishop, in which his officer, called magister
ad facultates,  grants dispensations  to marry,  to eat  flesh on
days prohibited, or to ordain a deacon under age, and the like. 4
Inst. 337.

   COURT, INSTANCE.  One of the branches of the English admiralty
is called an instance court. Vide Instance Court.

   COURT OF  INQUIRY. A  court constituted  by authority  of  the
articles of  war, invested  with the  power to  examine into  the
nature of  any transaction, accusation, or imputation against any
officer or soldier;  the said court shall consist. of one or more
officers, not exceeding three, and a judge advocate,
  or  other  suitable  person,  as  a  recorder,  to  reduce  the
proceedings and  evidencee to writing, all of whom shall be sworn
to the performance of their duty. Art. 91. Gord. Dig. Laws U. S.,
art. 3558 to 3560.

   COURT OF KING'S BENCH. The name of the supreme court of law in
England. Vide King's Bench.

   COURT MARTIAL.  A court authorized by the articles of war, for
the trial  of all  offenders in  the army  or navy,  for military
offences. Article  64, directs  that general  courts martial  may
consist of  any number  of commissioned  officers, from  five  to
thirteen, inclusively;   but  they shall not consist of less than
thirteen, where  the number  can be  convened,  without  manifest
injury to the service.

   2. The  decision of  the commanding  officer who  appoints the
court, as  to the  number that  can be convened without injury to
the service, is conclusive. 12 Wheat. R. 19. Such a court has not
jurisdiction over  a citizen of the United States not employed in


          Bouvier's Law Dictionary : C3 : Page 3 of 56


military service  12 John.  R.  257.  It  has  merely  a  limited
jurisdiction, and  to render  its  jurisdiction  valid,  it  must
appear to  have acted  within such jurisdiction. 3 S. & R. 590 11
Pick. R. 442;  19 John. R. 7;  1 Rawle, R. 143.

   3. A  court martial  must have  jurisdiction over  the subject
matter of  inquiry, and  over the person for a want of these will
render its  judgment null,  and the  members of the court and the
officers who  execute its  sentence, trespassers.  3 Cranch, 331.
See 5  Wheat. 1;   12  Wheat. 19;   1 Brock. 324. Vide Gord. Dig.
Laws U.  S., art.  3331 to  3357;   2 Story,. L. U. S. 1000;  and
also the  Treatises of  Adye, Delafon,  Hough, J.  Kennedy, M. V.
Kennedy,  McArthur,   McNaghten,  Simmons  and  Tyler  on  Courts
Martial;   and 19 John. R, 7;  12 John. R. 257;  20 John. R. 343;
5 Wheat. R. 1;  1 U. S. Dig. tit. Courts, V.

   COURT OF PECULIARS, Eng. eccl. law. The name of a court, which
is a branch of, and annexed to, the. court of arches.

   2. It  has jurisdiction  over  all  those  parishes  dispersed
through the  province  of  Canterbury,  in  the  midst  of  other
dioceses. In  the other  peculiars, the jurisdiction is exercised
by commissaries. 1 Phill. R. 202, n.

   3. There  are three  sorts of  peculiars 1. Royal peculiars. 3
Phill. R.  245. 2.  The second sort are those in which the bishop
has  no   concurrent  jurisdiction,   and  are  exempt  from  his
visitation. 3.  The third are subject to the bishop's visitation,
and liable  to his  superintendence and jurisdiction. 3 Phill. R.
245;  Skinn. R. 589.

  COURT PREROGATIVE. Vide Prerogative Court.

   COURT, PRIZE. One of the branches of the English admiralty, is
called a prize court. Vide Prize Court.

   COURT OF RECORD. At common law, any jurisdiction which has the
power to  fine and  imprison, is  a court  of record.  Salk. 200;
Bac. Ab.  Fines and  Amercements, A.  And  courts  which  do  not
possess this power are not courts of record. See Court.

   2. The  act of  congress, to  establish  an  uniform  rule  of
naturalization, &c.,  approved April  14, 1802,  enacts, that for
the purpose  of admitting  aliens to  become citizens, that every
court of  record in  any  individual  state,  having  common  law
jurisdiction and  a seal,  and a  clerk or prothonotary, shall be
considered as a district court within. the meaning of this act.

   COURT, SUPREME.  Supreme court  is the  name of a court having
jurisdiction over  all other  courts Vide  Courts of  the  United
States.

  COURTS OF THE UNITED STATES. The judiciary of the United States
is established  by virtue  of the following provisions, contained
in the third article of the constitution, namely:

   2. -  "§1. The  judicial power  of the  United States shall be


          Bouvier's Law Dictionary : C3 : Page 4 of 56


vested in  one supreme  court, and  in such  inferior  courts  as
congress may,  from time  to  time,  ordain  and  establish.  The
judges, both of the supreme and inferior courts, shall hold their
offices during  good  behaviour,  and  shall,  at  stated  times,
receive for  their services  a compensation,  which shall  not be
diminished during their continuance in office.

   3.- "§2.  (I.) The judicial power shall extend to all cases in
law and  equity arising  under this constitution, the laws of the
United States,  and treaties  made, or which shall be made, under
their authority;   to  all  cases  affecting  ambassadors,  other
public ministers  and consuls;   to  all cases  of admiralty  and
maritime jurisdiction;   to  controversies to  which  the  United
States shall  be a  party to  controversies between  two or  more
states, between  a state  and a citizen of another state, between
citizens of  different states, between citizens of the same state
claiming lands  under grants  of different  states, and between a
state, or  the citizens  thereof, and foreign states, citizens or
subjects.

   4. -  " (2.)  In all cases affecting ambassadors, other public
ministers and consuls, and those in which a state shall be party,
the supreme  court shall  have original  jurisdiction. In all the
other cases  before  mentioned,  the  supreme  court  shall  have
appellate jurisdiction,  both as  to  law  and  fact,  with  such
exceptions, and under such regulations, as congress shall make.

   5. -  " (3.)  The trial  of all  crimes, except  in  cases  of
impeachment, shall  be by  jury;  and such trial shall be held in
the state  where the  said crime  shall have been committed;  but
when not  committed within  any state, the trial shall be at such
place or places as congress may by law have directed."

   6. By  the  amendments  to  the  constitution,  the  following
alteration has  been made:  "Art. 11.  The judicial  power of the
United States shall not be construed to extend to any suit in law
or equity,  commence or  prosecuted against  one  of  the  United
States by  citizens of  another state, or citizens or subjects of
any foreign state."

   7. This subject will be considered by taking a view of, 1. The
central courts;  an 2. The local courts.

  Art. 1 The Central Courts of the United States.

  8. The central courts of the United States are, the senate, for
the trial of impeachments, and the supreme court. The territorial
jurisdiction of these courts extends over the whole country.

                    1. Of the Senate of the United States.

   9.- 1.  The constitution  of the  United States,  art. 1,  §3,
provides that  the senate  shall have  the sole  power to try all
impeachments. When  sitting for that purpose, the senate shall be
on oath  or affirmation.  When the president of the United States
is tried,  the chief justice shall preside and no person shall be
convicted without  the concurrence  of two-thirds  of the members
present.


          Bouvier's Law Dictionary : C3 : Page 5 of 56


   10. lt will be proper here to consider, 1. The organization of
this extraordinary court;  and, 2. Its jurisdiction.

   11. - §1. Its organization differs according as it has or, has
not the  president of  the United States to try. For the trial of
all impeachment  of the  president, the  preseuce  of  the  chief
justice is  required. There  must also  be a sufficient number of
senators present  to form  a quorum.  For the  trial of all other
impeachments, it is sufficient if a quorum be present.

   12. -  §2. The  jurisdiction of the senate, as a court for the
trial of impeachments, extends to the following officers, namely;
the president,  vice-president, and  all civil  officers  of  the
United States,  art. 2,  §4, when  they shall have been guilty of
treason, bribery, and other high crimes and misdemeanors. Id. The
constitution defines treason, art.

   3, -  §3, but  recourse must  be had  to the  common law for a
definition of  bribery. Not having particularly mentioned what is
to be  understood by  "  other  high  crimes  and  misdemeanors,"
resort, it  is presumed,  must be  had to parliamentary practice.
and the  common law,  in order to ascertain what they are. Story,
Const. §795.

               2. Of the Supreme Court.

   13. The  constitution of  the United  States directs  that the
judicial power  of the  United States  shall  be  vested  in  one
supreme court;  and in such inferior courts as congress may, from
time to  time,  ordain  and  establish.  It  will  be  proper  to
consider, 1st. Its organization;  2dly. Its Jurisdiction.

   14. - §1. Of the organization of the supreme court. Under this
head will be considered, l. The appointment of the judges. 2. The
number necessary  to form  a quorum.  3. The  time and  place  of
holding the court.

   15. -  1. The judges of the supreme court are appointed by the
president, by  and with the consent of the senate, Const. art. 2,
§2. They hold their office during good behaviour, and receive for
their services  a compensation,  which shall  not  be  diminished
during their  continuance in  office. Const.  art"  3,  §1.  They
consist of  a chief  justice and eight associate justices. Act of
March 3, 1837, §1.

   16. -  2. Five  judges are  required to  make a quorum, Act of
March 3,  1837, §1;  but by the act of the 21st of January, 1829,
the judges  attending on  the day appointed for holding a session
of the  court, although  fewer than  a quorum, at that time, four
have authority  to adjourn  the court from day to day, for twenty
days, after  the time  appointed for  the commencement,  of  said
session, unless  a quorum  shall sooner attend;  and the business
shall not  be continued  over till the next session of the court,
until the  expiration of  the said  twenty days. By the same act,
if, after the judges shall have assembled, on any day less than a


          Bouvier's Law Dictionary : C3 : Page 6 of 56


quorum shall  assemble, the  judge or judges. so assembling shall
have authority  to adjourn the said court, from day to day, until
a quorum  shall attend,  and,  when  expedient  and  proper,  may
adjourn the same without day.

   17 - 3. The supreme court is holden at the city of Washington.
Act of  April 29,  1 802.  The session  commences on  the  second
Monday of  January, in  each and every year. Act of May, 4, 1826.
The first  Monday of August in each year is appointed as a return
day. Act of April 29, 1802. In case of a contagious sickness, the
chief justice  or his  senior associate  may direct in what other
place the court shall be held, and the court shall accordingly be
ad to  such place.  Act of February 25, 1799, §7. The officers of
the court  are a clerk, who is appointed by the court, a marshal,
appointed by  the president,  by and  with  the  advice  and  the
consent of the senate, crier, and other inferior officers.

   18. -  §2. Of  the jurisdiction  of the  supreme.  court.  The
jurisdiction of the supreme court is either civil or criminal.

   19.  -  1.  The  civil  jurisdiction  is  either  original  or
appellate.

   20. -  (1.) The  provisions of the constitution that relate to
the original  jurisdiction of the supreme court, are contained in
the articles of the constitution already cited.

   21. By the act of September 24th, 1789, §13, the supreme court
shall have  exclusive jurisdiction  of all controversies of civil
nature where a state is a party, except "between a state and it's
citizens;  and except also, between a state and citizens of other
states or  aliens, in  which latter  case it shall have original,
but not  exclusive jurisdiction. And shall have, exclusively, all
such jurisdiction of suits, or proceedings against ambassadors or
other public  ministers, or their domestics or domestic servants,
as a  court of law can have or exercise consistently with the law
of nations.  And original,  but not exclusive jurisdiction of all
suits brought  by ambassadors  or other  public ministers,  or in
which a  consul or vice-consul shall be a party. And the trial of
issues in  fact, in  the supreme  court, in  all actions  at law,
against citizens of the United States, shall be by jury.

   22. In  consequence of the decision of the case of Chisholm v.
Georgia, where  it was  held that  assumpsit might  be maintained
against a  state by  a citizen  of a  different state,  the  llth
article of  the amendments  of the constitution above quoted, was
adopted.

   23. In  those cases in which original jurisdiction is given to
the supreme court, the judicial power of the United States cannot
be exercised  in its  appellate form. With the exception of those
cases in  which original  jurisdiction is  given to  this  court,
there is none to which the judicial power extends, from which the
original jurisdiction  of the  inferior courts is excluded by the
constitution.

   24. The constitution establishes the supreme court and defines


          Bouvier's Law Dictionary : C3 : Page 7 of 56


its  jurisdiction.   It  enumerates   the  cases   in  which  its
jurisdiction is original and exclusive, and defines that which is
appellate. See ll Wheat. 467.

   25.  Congress  cannot  vest  in  the  supreme  court  original
jurisdiction in  a case in which the constitution has clearly not
given that court original jurisdiction;  and affirmative words in
the constitution, declaring in what cases the supreme court shall
have original  jurisdiction, must  be construed  negatively as to
all other  cases, or  else the  clause would  be inoperative  and
useless. 1  Cranch, 137. See 5 Pet. 15 Pet. 284;  12 Pet. 657;  9
Wheat. 738 6 Wheat. 264.

   26. - 2. The supreme court exercises appellate jurisdiction in
the following different modes:

   (1.) By  writ of error from the final judgments of the circuit
courts;  of the district courts, exercising the powers of circuit
courts;    and  of  the  superior,  courts  of  the  territories,
exercising the  powers of  circuit, courts,  in certain  cases. A
writ of  error does  not lie  to the supreme court to reverse the
judgment of  a circuit  court, in a civil action by writ of error
carried from  the district court to the circuit court. The United
States v.  Goodwin, 7 Cranch, 108. But now, by the act of July 4,
1840, c.  20, §3,  it is enacted that writs of error shall lie to
the supreme court from all judgments of a circuit court, in cases
brought there  by writs of error from the district court, in like
manner and under the same regulations, as are provided by law for
writs of  error for  judgments  rendered  upon  suits  originally
brought in the circuit court.

   27. -  (2.) The supreme court has jurisdiction by appeals from
the final  decrees of the circuit courts;  of the district courts
exercising the  powers of  circuit courts;   and  of the superior
courts of territories, exercising the powers of circuit courts in
certain cases. See 8 Cranch, 251 6 Wheat. 448.

   28. -  (3.) The supreme court has also jurisdiction by writ of
error from the, final judgments and decrees of the highest courts
of law  or equity  in a  state, in  the cases provided for by the
twenty-fifth section  of the  act of  September 24th, 1789, which
enacts that  a final  judgment or  decree, in  any  suit  in  the
highest court  of law, or equity of a, state, in which a decision
in the suit could be had, where is drawn in question the validity
of a  treaty, or statute of, or an authority exercised under, the
United States,  and the  decision is  against their validity;  or
where is  drawn in  question the  validity of a statute of, or an
authority exercised under any state, on the ground of their being
repugnant to  the constitution,  treaties, or  laws of the United
States, and  the decision is in favor of such their validity;  or
where is  drawn in question the construction of any clause of the
constitution, or  of a  treaty or  statute of, or commission held
under the  United States,  and the decision is against the title,
right, privilege,  or exemption  specially set  up or  claimed by
either party, under such clause of the said constitution, treaty,
statute, or  commission, may  be  re-examined,  and  reversed  or
affirmed in  the supreme  court of the United States, upon a writ


          Bouvier's Law Dictionary : C3 : Page 8 of 56


of error,  the citation  being signed  by  the  chief-justice  or
judge, or  chancellor of  the  court  rendering  or  passing  the
judgment or  decree complained of, or by a justice of the supreme
court of  the United  States, in  the same  manner, and under the
same regulations,  and the  writ shall have the same effect as if
the judgment  or decree complained of had been rendered or passed
in   a circuit court;  and the proceeding upon the reversal shall
also be  the same,  except that  the supreme  court,  instead  of
remanding the cause for a final decision as before provided, may,
at their  discretion, if  the cause shall have been once remanded
before, proceed  to a  final decision  of  the  same,  and  award
execution. But  no other error shall be assigned or regarded as a
ground of  reversal, in  any such case as aforesaid, than such as
appears on  the face  of the record, and immediately respects the
before mentioned  questions of  validity, or  construction of the
said   constitution,    treaties,   statutes,   commissions,   or
authorities in dispute. See 5 How. S. C. R. 20, 55

   29. The appellate jurisdiction of the supreme court extends to
all cases  pending in  the  state  courts  and  the  twenty-fifth
section of  the judiciary  act, which  authorizes the exercise of
this jurisdiction  in the  specified cases  by writ  of error, is
supported by  the letter and spirit of the constitution. 1 Wheat.
304.

  30. When the construction or validity of a treaty of the United
States is drawn in question in the state courts, and the decision
is against  its validity, or the title specially set up by either
party under  the treaty,  the supreme  court has  jurisdiction to
ascertain that  title, and  to determine  its  legal  meaning.  1
Wheat. 358;   5  Cranch, 344;   9 Wheat. 738;  1 Pet. 94;  9 Pet.
224;  10 Pet. 368;  6 Pet. 515.

   31. The  supreme court  has jurisdiction  although one  of the
parties is  a state,  and the  other a  citizen of  that state. 6
Wheat. 264.

   32. Under  the twenty-fifth section of the judiciary act, when
any clause  of the  constitution or  any statute  of  the  United
States is  drawn in  question, the  decision must  be against the
title or  right set up by the party under such clause or statute;
otherwise the  supreme court has no appellate jurisdiction of the
case. 12 Wheat. 117, 129 6 Wheat. 598 3 Cranch, 268 4 Wheat. 311;
7 Wheat.  164;  2 Peters, 449;  2 Pet. 241;  11 Pet. 167;  1 Pet.
655;  6 Pet. 41;  5 Pet. 248.

   33. When  the judgment of the highest court of law of a state,
decides in favor of the validity of a statute of a state drawn in
question,  on   the  ground   of  its   being  repugnant  to  the
constitution of  the United  States, it  is not  a final judgment
within the  twenty-fifth section of the judiciary act if the suit
has been remanded to the inferior court, where it originated, for
further proceedings,  not inconsistent  with the  judgment of the
highest court. 12 Wheat. 135.

   34. The  words "  matters in  dispute" in the act of congress,
which is  to regulate the jurisdiction of the supreme court, seem


          Bouvier's Law Dictionary : C3 : Page 9 of 56


appropriated to  civil causes. 3 Cranch, 159. As to the manner of
ascertaining the  matter in  dispute, see 4 Cranch, 216;  4 Dall.
22;   3 Pet.  33;   3 Dall.  365;   2 Pet.  243;   7 Pet. 634;  5
Cranch, 13;  4 Cranch, 316.

   35. - (4.) The supreme court has juris- diction by certificate
from the  circuit court,  that the  opinions of  the  judges  are
opposed on points stated, as provided for by the sixth section of
the act  of April 29th, 1802. The provisions of the act extend to
criminal as  well as to civil cases. See 2 Cranch, 33;  10 Wheat.
20 2  Dall. 385;   4  Hall's Law  Journ. 462;   5  Wheat. 434;  6
Wheat.
 542;  12 Wheat. 212;  7 Cranch, 279.

   36. -  (5.) It has also jurisdiction by mandamus, prohibition,
habeas corpus, certiorari, and procedendo.

   37. -  2. The  criminal jurisdiction  of the  supreme court is
derived from  the constitution  and the  act of  September  24th,
1789, s.  13, which gives the supreme court exclusively, all such
jurisdiction of  suits or  proceedings  against  ambassadors,  or
other public ministers, or their domestics, as a court of law can
have or  exercise consistently  with the  law of  nations. But it
must be  remembered that the act of April 30tb, 1790, sections 25
and 26,  declares void  any writ or process whereby the person of
any ambassador,  or other  public minister,  their  domestics  or
domestic servants,  may be  arrested or  imprisoned. Art.  2. The
local courts.

   38. The local courts of the United States are, circuit courts,
district courts, and territorial courts., 1. The circuit courts.

   39. In  treating of  circuit courts,  it will be convenient to
consider, 1st. Their organization;  and, 2d. Their jurisdiction.

   40. -  §1. Of  the organization  of the  circuit  courts.  The
circuit courts  are the  principal inferior courts established by
congress.  There   are  nine  circuit  courts,  composed  of  the
districts which follow, to wit:

   41. -  1. The  first circuit  consists of the districts of New
Hampshire, Massachusetts, Rhode Island, and Maine. It consists of
a judge  of the  supreme court  and the  district  judge  of  the
district where  such court  is holden.  See Acts  April 29,  1802
March 26, 1812 and March 30, 1820.

   42. -  2 The  second circuit  is composed  of the districts of
Vermont, Connecticut and New York. Act of March 3, 183 7.

   43. -  3. The  third circuit  consists of the districts of New
Jersey, and  eastern and  western Pennsylvania;.  Act of March 3,
1837.

   44. - 4. The fourth circuit is composed of Maryland, Delaware,
and Virginia. Act of Aug. 16, 1842.

   45. -  5.  The  fifth  circuit  is  composed  of  Alabama  and
Louisiana. Act of August 16, 1842.


          Bouvier's Law Dictionary : C3 : Page 10 of 56


   46.- 6.  The sixth  circuit consist  of the districts of North
Carolina, South Carolina, and Georgia. Act of Aug. 16, 1842.

   47. -  7. The  seventh circuit  is composed  of Ohio, Indiana,
Illinois, and Michigan. Act of March 3, 1837, §1.

   48.-8. The  eighth circuit  includes Kentucky,  East and  West
Tennessee,  and  Missouri.  Act of  March 3,  1837, §1.   By  the
Act  of  April 14, 1842,  ch. 20,  §1,  it  is  enacted  that the
district court of the United States at Jackson,  in  the district
of West  Tennessee,  shall in future be attached to,  and form  a
part of the eighth judicial district of the United  States,  with
all  the  power  and  jurisdiction  of the circuit court  held at
Nashville, in the middle district of Tennessee.

   49. -  9. The  ninth circuit  is composed  of the districts of
Alabama, the  eastern district  of  Louisiana,  the  district  of
Mississippi, and  the district of Arkansas. Act of March 3, 1837,
§1.

   50. In  several districts of the United States, owing to their
remoteness from  any justice  of the  supreme court, there are no
circuit courts  held. But  in these,  the district court there is
authorized to act as a circuit court, except so far as relates to
writs of  error or  appeals from  judgments or  decrees  in  such
district court.

   51. The  Act of March 3, 1837, provides, " That so much of any
act or  acts of  congress as  vests in the district courts of the
United States  for the  districts of Indiana, Illinois, Missouri,
Arkansas, the  eastern district  of Louisiana,  the  district  of
Mississippi, the  northern district  of  New  York,  the  western
district of  Virginia, and  the western district of Pennsylvania,
and the  district of  Alabama, or  either of  them, the power and
jurisdiction of  circuit courts,  be, and  the  same  is  hereby,
repealed;   and there  shall hereafter be circuit courts held for
said districts  by the chief or associate justices of the supreme
court,  assigned  or  allotted  to  the  circuit  to  which  such
districts may  respectively belong,  and the  district judges  of
such districts,  severally and respectively, either of whom shall
constitute a  quorum;   which  circuit  courts,  and  the  judges
thereof, shall  have like  powers, and exercise like jurisdiction
as other  circuit courts  and the  judges thereof;   and the said
district courts,  and the judges thereof, shall have like powers,
and exercise  like jurisdiction,  as the district courts, and the
judges thereof  in the  other circuits.  From all  judgments  and
decrees, rendered in the district courts of the United States for
the western  district of  Louisiana, writs  of error  and appeals
shall lie  to the  circuit court  in the  other district  in said
state, in  the same manner as from decrees and judgments rendered
in. the  districts within  which a  circuit court  is provided by
this act."


          Bouvier's Law Dictionary : C3 : Page 11 of 56


   52. In all cases where the day of meeting of the circuit court
is fixed for a particular day of the mouth, if that day happen on
Sunday, then, by the Act of 29th April, 1802, and other acts, the
court shall be held the next day.

   53. The  Act of  April 29, 1802, §5, further provides, that on
every appointment  which shall  be hereafter  made,  of  a  chief
justice, or  associate justice,  the chief  justice and associate
justices shall  allot among themselves the aforesaid circuits, as
they shall think fit, and shall enter such allotment on record.

  54. The Act of March 3, 1837, §4, directs that the allotment of
the chief  justice and the associate justices of the said supreme
court to the several circuits shall be made as heretofore.

   55. And  by the  Act of  August 16,  1842, the justices of the
supreme court  of the  United States,  or a  majority of  the are
required to allot the several districts among the justices of the
said court.

   56. And  in case  no such  allotment shall be made by them, at
their sessions  next succeeding such appointment, and also, after
the appointment  of any  judge as aforesaid, and before any other
allotment shall  have been  made, it  shall and may be lawful for
the president  of the United States, to make such allotment as he
shall deem  proper which  allotment, in  either  case,  shall  be
binding until  another allotment  shall be  made. And the circuit
courts  constituted  by  this  act  shall  have  all  the  power,
authority and jurisdiction, within the several districts of their
respective  circuits,   that  before  the  13th  February,  1801,
belonged to the circuit courts of the United States.

  57. The justices of the supreme court of the United States, and
the district  judge of  the district where the circuit is holden,
compose the  judges of  the circuit court. The district judge may
alone hold  a circuit court, though no judge of the supreme court
may be  allotted to  that circuit.  Pollard v.  Dwight, 4 Cranch,
421.

   58. The  Act of  September 24th,  1789, §6,  provides, that  a
circuit court  may be  adjourned from  day to  day, by one of its
judges, or  if none  are present, by the marshal of the district,
until a quorum be convened. By the Act of May 19, 1794, a circuit
court in  any district, when it shall happen that no judge of the
supreme court  attends within  four days after the time appointed
by law, for the commencement of the sessions, may be adjourned to
the next  stated term,  by the judge of the district, or, in case
of his  absence also,  by the marshal of the district. But by the
4th section  of the  Act of April 29, 1802, where only one of the
judges thereby  directed to hold the circuit courts shall attend,
such circuit court may be held by the judge so attending.

  59. By the Act of March 2, 1809, certain duties are imposed oil
the justices of the supreme court, in case of the disability of a
district  judge  within  their  respective  circuits  to  hold  a
district court.  Sect. 2,  enacts, that in case of the disability
of the  district judge  of either  of the  district courts of the


          Bouvier's Law Dictionary : C3 : Page 12 of 56


United States,  to hold  a district  court, and  to  perform  the
duties of  his office,  and satisfactory  evidence thereof  being
shown to  the justice  of the  supreme  court  allotted  to  that
circuit, in which such district court ought, by law to be holden,
and on  application of  the district attorney, or marshal of such
district, in  writing, the  said justice  of  the  supreme  court
shall, thereupon,  issue his order in the nature of a certiorari)
directed to  the clerk  of such  district  court,  requiring  him
forthwith to  certify unto  the next circuit court, to be holden,
in  said   district,  all   actions,  suits,  pauses,  pleas,  or
processes, civil or criminal, of what nature or land soever, that
may be  depending in  such district court, and undetermined, with
all the  proceedings thereon, and all files, and papers relating,
thereto, which  said order  shall be immediately published in one
or more newspapers, printed in said district, and at least thirty
days before  the session  of such  circuit court,  and  shall  be
deemed a  sufficient notification  to all coucerned. And the said
circuit court  shall, thereupon,  have the same cognizance of all
such actions,  suits,  causes,  pleas,  or  processes,  civil  or
criminal, of  what nature or kind soever, and in the like manner,
as the  district court of said district by law might have, or the
circuit court,  had the  same been  originally commenced therein,
and shall proceed to hear and deterime the same accordingly;  and
the said  justice of the supreme court, during the continuance of
such disability,  shall, moreover, be invested with, and exercise
all and  singular the, powers and authority, vested by law in the
judge of  the district  court in said district. And all bonds and
recognizances taken  for, or  returnable to, such district court,
shall be construed and taken to be the circuit court to be holden
thereafter, in  pursuance of  this act,  and shall  have the same
force and  effect in  such court  as they  would have  had in the
district court  to which  they were taken. Provided, that nothing
in this act contained shall be so construed, as to require of the
judge of  the supreme  court, within  whose circuit such district
may lie, to hold any special court, or court of admiralty, at any
other time  than the  legal time for holding the circuit court of
the United States in and for such district.

   60. Sect.  2, provides, that the clerk of such district shall,
during the  continuance of  the disability of the district judge,
continue to  certify, as aforesaid, all suits or actions, of what
nature or  kind soever,  which may  thereafter be brought to such
district court,  and the  same transmit to the circuit court next
thereafter to  be holden  in the  same  district.  And  the  said
circuit court  shall have  cognizance of the same, in like manner
as is  hereinbefore provided  in this  act, and  shall proceed to
bear and  determine the  same. Provided,  nevertheless, that when
the disability  of the district judge shall cease, or be removed,
all suits or actions then pending and undetermined in the circuit
court, in  which, by  law, the  district courts have an exclusive
original cognizance, shall be remanded, and the clerk of the said
circuit court  shall transmit  the same, pursuant to the order of
the said  court, with all matters and things relating thereto, to
the district Court next thereafter to be holden in said district,
and the  same proceedings  shall be  had therein,  as would  have
been, had  the same  originated, or  been continued,  in the said
district court.


          Bouvier's Law Dictionary : C3 : Page 13 of 56


   61. Sect. 3, enacts, that in case of the district judge in any
district being  unable to  discharge his duties as aforesaid, the
district  clerk   of  such   district  shall  be  authorized  and
empowered, by  leave or order of the circuit judge of the circuit
in  which  such  district  is  included,  to  take,  during  such
disability  of   the  district   judge,  all   examinations,  and
depositions of  witnesses, and  to make  all necessary  rules and
orders, preparatory  to  the  final  hearing  of  all  causes  of
admiralty and  maritime jurisdiction.  See 1  Gall. 337 1 Cranch,
309 note to Hayburn's case, 3 Dall. 410.

   62. If  the disability  of the district judge terminate in his
death, the  circuit court must remand the certified causes to the
district court. Ex parte United States, 1 Gall. 337.

   63. By  the first  section of the Act of March 3, 1821, in all
suits and  actions in any district court of the United States, in
which it  shall appear  that the  judge of such court is any ways
concerned in  interest, or  has been of counsel for either party,
or is  so related  to, or  connected with,  either party,  as  to
render it  improper for  him, in his opinion, to sit on the trial
of such  suit or  action, it  shall be the duty of such judge, on
application of  either party,  to cause the fact to be entered on
the records of the court, and also an order that an authenticated
copy the  thereof, with  all the  proceedings  in  such  suit  or
action, shall be forthwith certified to the next circuit court of
the district,  and if there be no circuit court in such district,
to the  next circuit  court in  the state,  and if  there  be  no
circuit court in such state, to the most convenient circuit court
in an  adjacent state;   which  circuit court  shall,  upon  such
record being  filed  with  the  clerk  thereof,  take  cognizance
thereof, in  like manner  as if  such suit  or  action  had  been
originally commenced in that court, and shall proceed to bear and
determine the  same accordingly,  and the  jurisdiction  of  such
circuit court  shall extend  to all  such cases to be removed, as
were cognizable  in the  district court  from which  the same was
removed.

   64. And the Act of February 28, 1839, §8, enacts, "That in all
suits and  actions, in any circuit court of the United States, in
which it  shall appear that both the judges thereof, or the judge
thereof, who is solely competent by law to try the same, shall be
any ways  concerned in  interest therein,  or shall  have been of
counsel for  either party,  or is,  or  are  so  related  to,  or
connected with,  either party as to render it improper for him or
them, in  his or  their opinion, to sit in the trial of such suit
or action,  it shall  be the  duty of  such judge,  or judges, on
application of  either party,  to cause the fact to be entered on
the records  of the  court;   and, also, to make an order that an
authenticated copy thereof, with all the proceedings in such suit
or action,  shall be  certified to  the most  couvenient  circuit
court in  the next  adjacent  state,  or  in  the  next  adjacent
circuit;   which circuit  court shall, upon such record and order
being filed  with the  clerk thereof,  take cognizance thereof in
the same manner as if such suit or action had been rightfully and
originally commenced  therein, and  shall  proceed  to  hear  and


          Bouvier's Law Dictionary : C3 : Page 14 of 56


determine the  same accordingly;   and the proper process for the
due execution  of the  judgment or decree rendered therein, shall
run into,  and may  be  executed  in,  the  district  where  such
judgment or  decree was  rendered;   and, also, into the district
from which such suit or action was removed."

   65. The  judges of  the supreme  court are  not  appointed  as
circuit court  judges, or,  in  other  words,  have  no  distinct
commission for  that purpose: but practice and acquiescence under
it, for  many years, were held to afford an irresistible argument
against this  objection to  their authority  to act, when made in
the year,  1803, and  to  have  fixed  the  construction  of  the
judicial system.  The court deemed the contemporary exposition to
be of  the most  forcible nature,  and considered the question at
rest, and  not to  be disturbed  then. Stuart v. Laird, 1 Cranch,
308. If  a vacancy  exist by  the death  of the  justice  of  the
supreme court  to whom  the district  was allotted,  the district
judge may,  under the  act of  congress, discharge  the  official
duties, (Pollard  v. Dwight, 4 Cranch, 428. See the fifth section
of the  Act of  April 29, 1802,) except that he cannot sit upon a
writ of  error from  a decision  in the  district  court.  United
States v. Lancaster, 5 Wheat. 434.

   66. It  is enacted, by the Act of Februrary 28, 1839, §2, that
all the  circuit courts  of the  United  States  shall  have  the
appointment of  their own  clerks;   and in  case of disagreement
between  the  judges,  the  appointment  shall  be  made  by  the
presiding judge of the court.

  67. The marshal of the district is an officer of the court, and
the clerk  of the  district court  is also  clerk of  the circuit
court in such district. Act of September 24, 1789, §7.

   68. In  the District  of Columbia,  there is  a circuit  court
established by  particular acts  of congress, composed of a chief
justice and  two associates.  See Act.  of February 27, 1801;  12
Pet. 524;   7  Pet. 203;   7  Wheat. R.  534;   3 Cranch, 159;  8
Cranch, 251;   6  Cranch 233.  §2. Of  the  Jurisdiction  of  the
Circuit Courts.

   69. The  jurisdiction of the circuit courts is either civil or
criminal. (1.)  Civil Jurisdiction.  The  civil  jurisdiction  is
either at  law or  in equity. Their civil jurisdiction at law is,
1st. Original.  2d. By  removal of actions from the state courts.
3d. By writ of mandamus. 4tb. By appeal.

   70. -  1st. The original jurisdiction of the circuit courts at
law, may  be considered,  first, as  to the matter in controversy
second, with  regard to  the parties litigant. (1.) The Matter in
Dispute.

  71. By the Act of September 24, 1789, §11, to give jurisdiction
to the  circuit court, the matter in dispute must exceed $500. In
actions to  recover damages  for  torts,  the  sum  laid  in  the
declaration is the criterion as to the matter in dispute. 3 Dall.
358. In  an action  of covenant  on  an  instrument  under  seal,
containing a  penalty less  than $500, the court has jurisdiction


          Bouvier's Law Dictionary : C3 : Page 15 of 56


if the  declaration demand more than $500. 1 Wash. C. C. R. 1. In
ejectment,  the   value  of   the  land   should  appear  in  the
declaration;   4 Wash.  C. C. R. 624;  8 Cranch, 220;  1 Pet. 73;
but though the jury do not find the value of the land in dispute,
yet if  evidence be  given on  the trial,  that the value exceeds
$500, it is sufficient to fix the jurisdiction;  or the court may
ascertain its value by affidavits. Pet. C. C. R. 73.

   72. If  the matter in dispute arise out of a local injury, for
which a  local action  must be  brought, in  order  to  give  the
circuit court  jurisdiction, it  must be  brought in the district
where the lands lie. 4 Hall's Law Journal, 78.

   73. By  various acts of congress, jurisdiction is given to the
circuit courts  in cases  where actions  are brought  to  recover
damages for  the violation  of  patent  and  Copyrights,  without
fixing any  amount as  the limit. See Acts of April 17, 1800, §4;
Feb. 15, 1819;  7 Johns. 144;  9 Johns. 507.

  74. The circuit courts have jurisdiction in cases arising under
the patent  laws. By the Act of July 4, 1836, §17, it is enacted,
" That all actions, suits, controversies, and cases arising under
any law of the United States, granting or confirming to inventors
the exclusive  right to their inventions or discoveries, shall be
originally cognizable,  as well  in equity  as  at  law,  by  the
circuit courts of the United States, or any district court having
the powers  and jurisdiction  of a  circuit court;   which courts
shall have  power,  upon  bill  in  equity  filed  by  any  party
aggrieved, in  any such  case, to grant injunctions, according to
the course  and principles  of courts  of equity,  to prevent the
violation of the rights of any inventor, as secured to him by any
law of  the United  States, on  such terms and conditions as said
courts may  deem reasonable.  Provided, however,  That  from  all
judgments and  decrees, from  any such  court  rendered  in.  the
premises, a  writ of  error or  appeal, as  the case may require,
shall lie  to the supreme court of the United States, in the same
manner and under the same circumstances as is now provided by law
in other  judgments and  decrees of  circuit courts,  and in  all
other cases  in which the court shall deem it reasonable to allow
the game."

   75. In general, the circuit court has no original jurisdiction
of suits  for penalties and forfeitures arising under the laws of
the United  States, nor  in admiralty  cases. 2 Dall. 365 4 Dall.
342;  Bee, 19. (2.) The character of the parties.

  76. Under this head will be considered 1. The United States. 2.
Citizens of difrerent states. 3. Suits where an alien is a party.
4. When  an assignee  is  plaintiff.  5.  Defendant  must  be  an
inhabitant of the circuit. (i.) The United States.

   77. The  United States may sue on all contracts in the circuit
courts where  the sum  in controversy exceeds, besides costs, the
sum of  $500 but,  in cases  of penalties,  the  action  must  be
commenced in  the district  court, unless  the law  gives express
jurisdiction to the circuit courts. 4 Dall. 342. Under the Act of
March  3,   1815,  §4,   the  circuit   court  has   jurisdiction


          Bouvier's Law Dictionary : C3 : Page 16 of 56


concurrently with  the district  court of all suits at common law
where any  officer of  the United States sues under the authority
of an  act of  congress;   as where  the post-master general sues
under an act of congress for debts or balances due to the general
post-office. 12 Wheat. 136. See 2 Pet. 447;  1 Pet. 318.

   78. The  circuit court  has jurisdiction  on a  bill in equity
filed b  the United  States against  the debtor  of their debtor,
they claiming priority under the statute of March 2, 1798, c. 28,
§65, though  the law  of the  state where  the  suit  is  brought
permits a creditor to proceed against the debtor of his debtor by
a peculiar  process at  law. 4  Wheat. 108.  (ii.) Suits  between
citizens of different states.

   79. The  Act of September 24, 1789, §11, gives jurisdiction to
the circuit  court in  suits of  civil nature  when the matter in
dispute is  of a  certain amount,  between a citizen of the state
where the  suit is  brought, and a citizen of another state;  one
of the parties must therefore be a citizen of the state where the
such is  brought. See 4 Wash. C. C. R. 84;  Pet. C. C. R. 431;  1
Sumn. 581;   1  Mason, 520;   5  Cranch, 288;   3  Mason, 185;  8
Wheat.'699;  2 Mason, 472;  5 Cranch, 57;  Id. 51;  6 Wheat. 450;
1 Pet. 238;  4 Wash. C. C. R. 482, Id. 595.

  80. Under this section the division of a state into two or more
districts does  not affect the jurisdiction of the circuit court,
on account  of  citizenship.  The  residence  of  a  party  in  a
different district  of a  state from  that in  which the  suit is
brought, does  not exempt him from the jurisdiction of the court;
if he  is found in the district where he is sued he is not within
the prohibition of this section. 11 Pet. 25. A territory is not a
state for  the purpose  of giving jurisdiction, and, therefore, a
citizen of  a territory  cannot sue the citizen of a State in the
circuit court.  1 Wheat.  91. (iii.)  Suits where  on alien  is a
party.

  81. The Act of September 24, 1780, §11, gives the circuit court
cognizance of  all suits  of a  civil nature  where an alien is a
party;   but these  general words;   must  be restricted  by  the
provision  in   the  constitution  which  gives  jurisdiction  in
controversies between  a state,  or the  citizens of a state, and
foreign states,  citizens or  subjects;   and the  statute cannot
extend the  jurisdiction beyond the limits of the constitution. 4
Dall. 11;   5  Cranch, 308.  When both  parties are  aliens,  the
circuit court  has no jurisdiction. 4 Cranch, 46;  4 Dall. 11. An
alien who  holds lands  under a special law of the state in which
he is  resident, may  maintain an  action in  relation  to  those
lands, in the circuit court. 1 Baldw. 216. (iv.) When an assignee
is the plaintiff.

  82. The court has no jurisdiction unless a suit might have been
prosecuted in  such court to recover on the contract assigned, if
no assignment  had  been  made,  except  in  cases  of  bills  of
exchange. Act  of September  24, 1789,  §11;   see 2 Pet. 319;  1
Mason, 243;  6 Wheat. 146;  11 Pet. 83;  9 Wheat. 537;  6 Cranch,
332;   4 Wash.  C. C.  R. 349;   4  Mason, 435;   12 Pet. 164;  2
Mason, 252.  It is  said that this section of the act of congress


          Bouvier's Law Dictionary : C3 : Page 17 of 56


has no  application to  the conveyance of lands from a citizen of
one state  to a citizen of another. The grantee in such, case may
maintain his action in the circuit court, when otherwise properly
qualified, to try the title to such lands. 2 Sumn. 252.  (V.) The
defendant must be an inhabitant of, or found in the circuit.

   83. The circuit court has no jurisdiction of an action against
a defendant  unless he  be an inhabitant of the district in which
such court  is located,  or found therein, at the time of serving
the writ.  3 Wash.  C. C.  R. 456.  A citizen of one state may be
sued in another, it the process be served upon him in the latter;
but in  such cases) the plaintiff must be a citizen of the latter
state, or  an alien.  1 Pet. C. C. R. 431. 2d. Removal of actions
from the state court's.

   84. The,  Act of  September 24, 1789, gives, in certain cases,
the right  of removing  a suit instituted in a state court to the
circuit court of the district. It is enacted by that law, that if
a suit  be commenced in any state court against an alien, or by a
citizen of  the state  in which  the suit  is brought,  against a
citizen of  another state,  and the matter in dispute exceeds the
aforesaid sum  or value  of five  hundred dollars,  exclusive  of
costs, to be made to appear to the satisfaction of the court, and
the defendant  shall, at  the time  of entering his appearance in
such state  court, file  a petition  for the removal of the cause
for trial,  into the  next circuit  court,  to  be  held  in  the
district where the suit is pending, and offer good and sufficient
security for  his entering in such court, on the first day of its
session, copies of the said process against bim, and also for his
then appearing and entering special bail in the cause, if special
bail was  originally required  therein, it shall then be the duty
of the  state court  to accept the surety, and proceed no further
in the  cause. And  any bail  that may have been originally taken
shall be  discharged.  And  the  said  copies  being  entered  as
aforesaid in  such court  of the  United States,  the cause shall
there proceed  in the same manner as if it had been brought there
by original process. And any attachment of the goods or estate of
the defendant,  by the  original process, shall hold the goods or
estate so  attached, to  answer the  final judgment,  in the same
manner as  by the  laws of such state they would have been holden
to answer  final judgment,  had it  been rendered  by the circuit
court in  which the  suit commenced.  Vide Act  of September  24,
1789, §12;  4 Dall. 11;  5 Cranch, 303;  4 Johns. R. 493;  1 Pet.
R. 220;  2 Yeates, R. 275;  4 W. C. C. R. 286, 344.

   85. By  the Constitution,  art. 3,  §2, 1,  the judicial power
shall extend to controversies between citizens of the same state,
claiming lands under grants of different states.

   86. By  a clause  of the  12th section of the Act of September
24th, 1789, it is enacted, that, if in any action conmmenced in a
state court,  the title of land be concerned, and the parties are
citizens of the same state, and the matter in dispute exceeds the
sum or value of five hundred dollars, exclusive of costs, the sum
or value  being made  to appear to the satisfaction of the court,
either party,  before the  trial, shall  state to  the court, and
make affidavit,  if it require it, that he claims, and shall rely


          Bouvier's Law Dictionary : C3 : Page 18 of 56


upon a  right or  title to  the land,  under grant  from a state,
other than  that in  which the  suit is  pending, and produce the
original grant,  or an  exemplification of  it, except  where the
loss of  records shall  put it  out of  his power, and shall move
that the  adverse party  inform the  court, whether  he claims  a
right of  title to the land under a grant from the state in which
the suit  is pending;   the  said adverse  party shall  give such
information, otherwise  not be  allowed to  plead such  grant, or
give it  in evidence  upon the  trial;  and if he informs that he
does claim  under any  such grant,  the party  claiming under the
grant first  mentioned, may then, on motion, remove the cause for
trial, to  the next  circuit court to be holden in such district.
But if  he is  the defendant,  he shall  do  it  under  the  same
regulations, as  in the before mentioned case of the removal of a
cause into such court by an alien. And neither party removing the
cause shall  be allowed  to plead, or give evidence of, any other
title than  that by him stated as aforesaid, as the ground of his
claim. See 9 Cranch, 292 2 Wheat. R. 378.

   87. Application  for removal  must be  made during the term at
which the defendant enters his appearance. 1 J. J. Marsh. 232. If
a state court agree to consider a petition to remove the cause as
filed of  the preceding term, yet if the circuit court see by the
record, that  it was  not filed till a subsequent term, they will
not permit the cause to be docketed. Pet. C.. C. R. 44 Paine, 410
but see 2 Penning. 625.

   88. In chancery, when the defendant wishes to remove the suit,
he must  file his  petition when  he enters  his appearance;    4
Johns. Ch.  94;   and in an action in a court of law, at the time
of putting  in special  bail. 12 Johns. 153. And if an alien file
his petition  when he  filed special  bail, he is in time, though
the bail be excepted to. 1 Caines, 248;  Coleman, 58. A defendant
in ejectment  may file his petition. when he is let in to defend.
4 Johns.  493. See  Pet. C.  C. R. 220;  2 Wash. C. C. R. 463;  2
Yeates, 275,  352;   3 Dall.  467;  4 Wash. C. C. R. 286;  2 Root
444;   5 John.  Ch. R.  300 3 Harn. 48;  4 Wash. C. C. R. 84. 3d.
Remedy by Mandamus.

   89. The  power of  the circuit  Court to  issue a mandamus, is
confined, exclusively,  to cases in which it may be necessary for
the exercise  of  a  jurisdiction  already  existing;    as,  for
instance, if  the court below refuse to proceed to judgment, then
a mandamus  in the  nature of  a procedendo  may issue. 7 Cranch,
504;   6 Wheat.  R. 598.  After the  state court  had refused  to
permit the  removal of  a cause  on petition,  the circuit  court
issued a mandamus to transfer the cause.

                          4th. Appellate Jurisdiction.

   90. The  appellate jurisdiction  is exercised  by means of, 1.
Writs of  error. 2  Appeals from the district courts in admiralty
and maritime jurisdiction. 3. Certiorari. 4. Procedendo.

   91. - [l.] This court has jurisdiction to issue writs of error
to the  district court, on judgments of that court in civil cases
at common law.


          Bouvier's Law Dictionary : C3 : Page 19 of 56


   92. The  11th section  of  the  Act  of  September  24,  1789,
provides, that  the circuit  courts  shall  also  have  appellate
jurisdiction from  the district courts, under the regulations and
restrictions thereinafter provided.

   93. By  the 22d  section, final decrees and judgments in civil
actions in  a district court, where the matter in dispute exceeds
the, sum  or value  of fifty  dollars, exclusive of costs, may be
reexamined, and reversed or affirmed in a circuit court holden in
the same district, upon a writ of error, whereto shall be annexed
and returned therewith at the day and place therein mentioned, an
authenticated transcript  of the record and assignment of errors,
and prayer  for reversal,  with a  citation to the adverse party,
signed by  the judge  of such district court, or a justice of the
supreme court,  the adverse  party having  at least  twenty  days
notice. But there shall be no reversal on such writ of error, for
error in  ruling any  plea in abatement, other than a plea to the
jurisdiction of the court, or for any error in fact. And writs of
error shall  not be brought but within five years after rendering
or passing   the  judgment or  decree complained of;  or, in case
the person  entitled to  such writ  of error  be an  infant,  non
compos  mentis,   or  imprisoned,  then  within  five  years,  as
aforesaid, exclusive  of the  time of  such disability. And every
justice or  judge signing  a citation  or any  writ of  error  as
aforesaid, shall  take good  and sufficient  security,  that  the
plaintiff in error shall prosecute his writ to effect, and answer
all damages and costs, if he fail to make his plea good.

   94. The  district judge  cannot sit  in the circuit court on a
writ of error to the district court. 5 Wheat. R. 434.

   95. It is observed above, that writs of error may be issued to
the district  court in  civil cases  at common law, but a writ of
error does  not lie  from a  circuit to  a district  court in  an
admiralty or maritime cause. 1 Gall. R. 5..

   96. - [2.] Appeals from the district to the circuit court take
place  generally   in  civil  causes  of  admiralty  or  maritime
jurisdiction.

   97. By  the Act of March 3, 1803, §2, it is enacted, that from
all final  judgments or  decrees in any of the district courts of
the United  States,  an  appeal  where  the  matter  in  dispute,
exclusive of  costs, shall  exceed the  sum  or  value  of  fifty
dollars, shall be allowed to the district court next to be holden
in the district where such final judgment or judgments, decree or
decrees shall  be rendered:  and the  circuit courts  are thereby
authorized and required, to hear and determine such appeals.

   98. -  [3.] Although no act of congress authorizes the circuit
court to,  issue a  certiorari to  the  district  court  for  the
removal of  a cause,  yet if the cause be so removed, and instead
of taking  advantage of  the irregularity in proper time and in a
proper manner,  the defendant  makes the  defence and  pleads  to
issue, he  thereby waives  the objection,  and the  suit will  be
considered as  an original  one in  the circuit court, made so by
consent of parties. 2 Wheat. R. 221.


          Bouvier's Law Dictionary : C3 : Page 20 of 56


   99.-[4.1 The  circuit court  may issue a writ of procedendo to
the district court.

   Equity Jurisdiction of the Circuit Courts.

   100. Circuit  courts are  vested with  equity jurisdiction  in
certain cases.  The Act  of September,  1789, §11, gives original
cognizance, concurrent  with the courts of the several states, of
all suits of a civil nature at common law or in equity, where the
matter in  dispute exceeds,  exclusive of costs, the sum or value
of five  hundred dollars, and the United States are plaintiffs or
petitioners, or  an alien  is a  party, or. the suit is between a
citizen of  the state  where the suit is brought and a citizen of
another state.

   101. The  Act of  April 15,  1819, §1,  provides, "  That  the
circuit  court   of  the   United  States  shall.  have  original
cognizance, as  well in  equity as at law, of all actions, suits,
controversies, and  cases arising  under may  law of  the  United
States, granting  or confirming  to  authors  or  inventors,  the
exclusive right  to their  respective writings,  inventions,  and
discoveries;   and upon  any bill  in equity  filed by  any party
aggrieved,  in   such  cases,   shall  have  authority  to  grant
injunctions according  to the  course and principles of courts of
equity, to prevent the viola-tion of the rights of any authors or
inventors, secured  to them  by any laws of the United States, on
such terms  and conditions  as the  said courts  may deem fit and
reasonable:.provided,  however,   that  from  all  judgments  and
decrees of any circuit courts rendered in the premises, a writ of
error or  appeal as  the case  may. require,  shall  lie  to  the
supreme court of the United States, in the same Maniaer and under
the same  circumstances, as  is now  provided by  law,  in  other
judgments and decrees of such circuit court."

   102. By  the Act of August 23, 1842, it is enacted, §5, " That
the district  courts, as  courts of  admiralty, and  the  circuit
courts, as  courts of equity, shall be deemed always open for the
purpose of  filing libels,  bills, petitions, answers, pleas, and
other plead-  ings, for  issuing and  returning mesne  and  final
process  and  commissions,  and  for  making  and  directing  all
interlocutory  motions,  orders,  rules,  and  other  proceedings
whatever, preparatory  to  the  hearing  of  all  causes  pending
therein upon  their merits.  And it  shall be  competent for any.
judge of the court, upon reasonable notice to the parties, in the
clerk's office  or at  chambers, and  in vacation  as well  as in
term,  to   make  and   direct,  and   award  all  such  process,
commissions,  and   interlocutory  orders,   rules,   and   other
proceedings, whenever  the  same  are  not  grantable  of  course
according to the rules and practice of the court."

   (2.) Criminal Jurisdiction of the Circuit Courts.

   103. The  often cited  llth section  of the Act of the 24th of
September, 1789, gives the circuit courts exclusive cognizance of
all crimes  and offences  cognizable under  the authority  of the


          Bouvier's Law Dictionary : C3 : Page 21 of 56


United States,  except where  that act otherwise provides, or the
laws of  the United States shall otherwise direct, and concurrent
jurisdiction with  the district courts of the crimes and offences
cognizable. therein.  The jurisdiction  of the  circuit courts in
criminal cases  is confined  to  offences  committed  within  the
district for  which those  courts respectively  sit when they are
committed on land. Serg. Const. Law, 129;  1 Gallis. 488.

   2. Of the District Courts.

   104. In  treating of  district courts, the same division which
was made, in considering circuit courts, will here be adopted, by
taking a  view,  1.  Of  their  organization  and,  2.  Of  their
jurisdiction. §1. Of the Organization of the District Courts.

   105. The  United States are divided into districts, in each of
which is  a court called a district court, which is to consist of
one judge,  who is  to reside  in the  district for  wbich he  is
appointed, and  to hold  annually four sessions. Act of September
24, 1789.  By subsequent  acts of  congress, the number of annual
sessions in particular districts, is sometimes more and sometimes
less;  and they are to be held at various places in the district.
There is  also a district court in the District of Columbia, held
by the  chief justice  of the circuit court of that district. §2.
Jurisdiction of the District Courts.

   106. Their jurisdiction is either civil or criminal.

   107. -  (1.) Their civil jurisdiction extends, 1. To admiralty
and maritime  causes: the admiralty and maritime jurisdiction, is
either the  ordinary jurisdiction, which comprehends prize suits;
cases of  salvage actions  for torts;   and actions on contracts,
such. as  seamen's wages,  pilotage, bottomry, ransom, materials,
and  the   like;    or  the  extraordinary  or  expressly  vested
jurisdiction, which  includes cases of seizures under the revenue
laws, &c.;   and  captures within  the jurisdiction of the United
States.

   108.-2. To  cases of  seizure on  land under  the laws  of the
United States,  and  in  suits  for  penalties  and  forfeitures,
incurred under the laws of the United States.

   109.-3. To  cases in  which an  alien  sues  for  a  tort,  in
violation of  the laws  of nations,  or a  treaty of  the  United
States.

  110. - 4. To suits instituted by the United States.

  111. - 5. To actions by and against consuls.

  112. - 6. To certain cases in equity.

   113. -  1. The  admiralty and  maritime  jurisdiction  of  the
district court is ordinary or extraordinary.

   114. - 1st. The ordinary jurisdiction is granted by the Act of
September 24th,  1789, It  is there  enacted, that  the  district
court shall  have exclusive  original  cognizance  of  all  civil


          Bouvier's Law Dictionary : C3 : Page 22 of 56


causes of  admiralty and maritime jurisdiction. This jurisdiction
is exclusive. Bee, 19;  3 Dall. 16;  Paine, 111;  4 Mason, 139.

  115. This ordinary jurisdiction is exercised in,

  116. - 1. Prize suits. The Act of September 24, 1789, §9, vests
in the  district courts  as full jurisdiction of all prize causes
as the  admiralty of  England;    and  this  jurisdiction  is  an
ordinary inherent branch of the powers of the court of admiralty,
whether considered  as prize  courts or  instance courts, 3 Dall.
16;  Paine, 111.

   117. The  act of  congress marks  out  not  only  the  general
jurisdiction of the district courts, but also that of the several
courts in  relation to  each other,  in cases  of seizure  on the
waters of  the United  States, navigable, &c. When the seizure is
made within  the waters  of  one  district,  the  court  of  that
district has exclusive, jurisdiction, though the offence may have
been committed  out of  the district. When the seizure is made on
the high  seas, the  jurisdiction is in the court of the district
where the property may be brought. 9 Wheat. 402;  6 Cranch;  281;
1 Mason, 360;  Paine, 40.

   118. When  the seizure  has been  made within  the waters of a
foreign nation,  the district  court has  jurisdiction, when  the
property has  been brought  into the  district, and a prosecution
has been instituted there. 9 Wheat. 402;  9 Cranch. 102.

   119. The  district court  has jurisdiction of seizures, and of
the question  of who  is entitled to their proceeds, as informers
or otherwise;   and the principal jurisdiction is exclusive;  the
question, as  to who is the informer, is also exclusive. 4 Mason,
139.

   120. -  (2.) Cases of salvage. Under the constitution and laws
of  the   United  States,   this  court  has  exclusive  original
cognizance in  cases of  salvage;   and, as a consequence, it has
the power  to determine  to whom  the  residue  of  the  property
belongs, after deducting the salvage. 3 Dall. 183.

   121. -  (3.) Actions  arising out  of tort's and injuries. The
district court  has jurisdiction  over  all  torts  and  injuries
committed on  the high  seas, and  in ports or harbors within the
ebb and  flow of the tide. Vide 1 Wheat. R. 304;  2 Gall. R. 389;
1 Mason, 96;  3 Mason., 242;  4 Mason, 380;  18 Johns. R. 257.

   122. A court of admiralty has jurisdiction to redress personal
wrongs committed  on a passenger, on the high seas, by the master
of  a  vessel,  whether  those  wrongs  be  by  direct  force  or
consequential injuries. 3 Mason, 242.

   123. The  admiralty may decree damages for an unlawful capture
of an  American vessel  by a French privateer, and may proceed by
attachment in ?-em. Bee, 60.

   124. It  has jurisdiction  in  cases  of  maritime  torts,  in
personam as well as in rem. 10 Wheat. 473,


          Bouvier's Law Dictionary : C3 : Page 23 of 56


   125. This  court has  also jurisdiction  of petitory  suits to
reinstate owners  of vessels  who have  been displaced from their
possession. 5  Mason, 465. It exercises jurisdiction of all torts
and injuries  committed on the high seas, and in ports or barbors
within the flow or ebb of the tide. 2 Gallis. 398;  Bee, 51.

  126. A father, whose minor son has been tortiously abducted and
seduced on  a voyage on the high seas, may sue, in the admiralty,
in the  nature of  an action per quod, &c., also for wages earned
by such son in maritime service. 4 Mason, 380.

   127. -  (4.) Suits  on contracts. As a court of admiralty, the
district court  has a jurisdiction, concurrent with the courts of
common law, over all maritime contracts, wheresoever the same may
be made or executed, or whatsoever be the form of the contract. 2
Gallis. 398.  It may  enforce the  performance of charter-parties
for foreign voyages, and by proceeding in rem, a lien for freight
under them.  1 Sumn.  551;  2 Sumn. 589. It has jurisdiction over
contracts  for   the  hire   of  seamen,   when  the  service  is
substantially performed  on the sea, or on waters within the flow
and reflow  of the  tide 10  Wheat. 428;   7 Pet. 324;  Bee, 199;
Gilp. 529.  But unless the services are essentially maritime, the
jurisdiction does not attach. 10 Wheat. 428;  Gilp. 529.

   128. The  master of a vessel may sue in the admiralty, for his
wages;  and the mate, who on his death succeeds him, has the same
right. 1  Sumn. 157;   9  Mason, 161;  4 Mason, 196. But when the
services for  which he  sues have  not been  performed by  him as
master, they cannot be sued for in admiralty. 3 Mason, 161.

   129. The  jurisdiction of  the  admiralty  attaches  when  the
services are  performed on a ship in port where the tide ebbs and
flows. 7 Pet. 324;  Gilp. 529.

   130. Seamen,  employed on  board of  steamboats  and  lighters
engaged in  trade or  commerce  on  tide-water,  are  within  the
admiralty jurisdiction. But those in ferryboats are not so. Gilp.
532 Gilp. 203.

   131. Wages  may be  recovered in  the admiralty  by the pilot,
deck-hands, engineer, and firemen, on board of a steamboat. Gilp.
505.

   132. But  unless the  service of  those employed contribute in
navigating the  vessel, or  to its  preservation, they cannot sue
for their  wages in  the admiralty;   musicians  on  board  of  a
vessel, who  are hired  and employed  as such,  cannot  therefore
enforce a  payment of  their wages  by  a  suit  in  rem  in  the
admiralty. Gilp. 516.

  133. - 2d. The extraordinay jurisdiction of the district court,
as a  court of admiralty, or that which is vested by various acts
of congress, consists of -

   (1.) Seizures  under the laws of imposts, navigation, or trade
of the  United States. It is enacted, by the Act of September 24,


          Bouvier's Law Dictionary : C3 : Page 24 of 56


1789, §9,  that the  district court shall have exclusive original
cognizance  of   all  civil  causes  of  admiralty  and  maritime
jurisdiction,  including  all  seizures  under  laws  of  impost,
navigation, or  trade of the United States, when the seizures are
made on  waters which  are navigable  from the sea, by vessels of
ten or  more tons  burden, within  their respective districts, as
well as upon the high seas;  saving to suitors, in all cases, the
right of a common law remedy, when the common law is competent to
give it.

  134. Causes of this kind are to be tried by the district court,
and not  by a  jury. 4  Cranch, 438;  5 Cranch, 281;  1 Wheat. 9,
20: 7 Cranch, 112;  3 Dall. 297.

   135. It is the place of seizure, and not the committing of the
offence, that,  under  the  Act  of  September  24,  1789,  gives
jurisdiction to  the court;   4  Cranch, 443  5 Cranch, 304;  for
until there  has been a seizure, the forum cannot be ascertained.
9 Cranch, 289.

   136. When the seizure has been voluntarily abandoned, it loses
its validity,  and no  jurisdiction attaches to any court, uuless
there be a new seizure. 10 Wheat. 325 1 Mason, 361.

   137. -  (2.) The.  admiralty jurisdiction, expressly vested in
the district  court, embraces,  also, captures  made  within  the
jurisdictional limits  of the United States. By the Act of April.
20, 1818,  §7,  the  district  court  shall  take  cognizance  of
complaints, by  whomsoever instituted,  in cases of captures made
within the waters of the United States, or within a marine league
of the coasts and shores thereof.

   138. - 2. The civil jurisdiction of the district court extends
to cases of seizure on land, under the laws of the United States,
and in  suits for  penalties and  forfeitures incurred  under the
laws of the United States.

   139. The  Act of September 24, 1789, §9, gives to the district
court exclusive original cognizance of all seizures made on land,
and other  waters than  as aforesaid,  (that is,  those which are
navigable by  vessels of  ton or  more tons  burden, within their
respective districts,  or on the high seas,) and of all suits for
penalties and  forfeitures incurred  under the laws of the United
States.

   140. In  all cases of seizure on land, the district court sits
as a  court of  common law,  and  its  jurisdiction  is  entirely
distinct from  that  exercised  in  case  of  seizure  on  waters
navigable by  vessels of  ten tons  burden and  upwards. 8 Wheat.
395.
 141.  Seizures of  this kind  are triable by jury;  they are not
cases of admiralty and maritime jurisdiction. 4 Crauch, 443.

   142. - 3. The civil jurisdiction of the district court extends
also to  cases in which an alien sues for a tort, in violation of
the law of nations, or a treaty of tho United States.


          Bouvier's Law Dictionary : C3 : Page 25 of 56


   143. The  Act of  September 24,  1789, §9,  directs  that  the
district court  shall have cognizance, concurrent with the courts
of the several states, or the circuit courts, as the case may be,
of all  causes where  an alien sues for a tort only, in violation
of the law of nations, or of a treaty of the United States.

   144. - 4. The civil jurisdiction of this court extends further
to suits  instituted by  the United States. By the 9th section of
the Act of September 24, 1789, the district court shall also have
cognizance, concurrent  as last mentioned, of all suits at common
law, where  the United  States sue,  and the  matter  in  dispute
amounts, exclusive  of costs,  to the sum or value of one hundred
dollars. And by the Act of March 3;  1815, §4, it has cognizance,
concurrent with the courts and magistrates of the several states,
and the  circuit courts  of the  United States,  of all  suits at
common law where the United States, or any officer thereof, under
the authority  of any  act of  congress sue,  although the  debt,
claim, or  other matter  in dispute,  shall  not  amount  to  one
hundred dollars.

   145. These last words do not confine the jurisdiction given by
this act  to one hundred dollars, but prevent it from stopping at
that sum:  and consequently,  suits for  sums  over  one  hundred
dollars are  cognizable  in  the  district,  circuit,  and  state
courts, and  before magistrates,  in the cases here mentioned. By
virtue of  this act, these tribunals have jurisdiction over suits
brought by the postmaster-general, for debts and balances due the
general post office. 12 Wheat. 147;  2 Pet. 447;  1 Pet. 318.

   146.-5. This  court has jurisdiction of actions by and against
consuls or vice-consuls, exclusively of the courts of the several
states, except for offences where other punishment than whipping,
not exceeding  thirty stripes,  a fine  not exceeding one hundred
dollars, or  a term  of imprisonment not exceeding six months, is
inflicted.

   147. For  offences above this description formerly the circuit
court only  had jurisdiction  in cases of consuls. 5 S. & R. 545;
2 Dall.  299. But  by the  Act of  August 23,  1842, the district
courts shall have concurrent jurisdiction with the circiut courts
of all  crimes  and  offences  against  the  United  States,  the
punishment of  which is  not capital. And by the, Act of February
28, 1839,  §5, the  punishment of whipping is abolished. See also
the Act  of 28th  Sept. 1850, making appropriations for the naval
service, &c.

   148. -  6. The  jurisdiction of  the district  court under the
bankrupt laws will be found under the title Bankrupt.

   149. -  7. The  district courts have equitable jurisdiction in
certain cases.  150. By  the first section of the Act of February
13, 1807,  the judges of the district courts of the United States
shall have  as full  power to  grant  writs  of  injunctions,  to
operate within their respective districts, as is now exercised by
any of  the judges  of the  supreme court  of the  United States.
under the  same rules,  regulations,  and  restrictions,  as  are
prescribed by  the several  acts  of  congress  establishing  the


          Bouvier's Law Dictionary : C3 : Page 26 of 56


judiciary  of   the  United  States,  any  law  to  the  contrary
notwithstanding. Provided,  that the  same shall  not, unless  so
ordered by the circuit court, continue longer than to the circuit
then next  ensuing;   nor shall  an injunction  be  issued  by  a
district judge  in any case, where the party has had a reasonable
time to apply to the circuit court for the writ.

   151. An  injunction may  be issued by the district judge under
the Act of March 3, 1820, SSSS 4, 5, where proceedings have taken
place by  warrant and  distress against  a debtor  to the  United
States or  his sureties,  subject by §6, to appeal to the circuit
court from  the decision  of such  district judge  in refusing or
dissolving the injunction, if such appeal be allowed by a justice
of the  supreme court.  On which,  with an  exception as  to  the
necessity of  an answer  on the  part of  the United  States, the
proceedings are to be as in other cases.

  152. The Act of September 24, 1789, §14, vests in the judges of
the district  courts, power  to grant writs of habeas corpus, for
the purpose of an inquiry into the cause of commitment.

   153. Other  acts give  them power  to issue writs, make rules,
take depositions,  &c. The  acts of  congress already  treated of
relating to  the privilege  of not being sued out of the district
of which the defendant is an inhabitant, or in which he is found,
restricting suits  by assignees, and various others, apply to the
district court as well as to the circuit court.

   154. Bythe  9th section  of the Act of September 24, 1789, the
trial of  issues in  fact in  the district  courts, in all causes
except civil causes of admiralty and maritime jurisdiction, shall
be by jury. Serg. Const. Law, 226, 227.

   (2.) The criminal jurisdiction of the district court.

   155. By the Act of August 23, 1842, §3, it is enacted that the
district courts  of  the  United  States  shall  have  concurrent
jurisdiction with  the circuit courts, of all crimes and offences
against the  United  States,  the  punishment  of  which  is  not
capital.

   156. There  is a  class  of  district  courts  of  a  peculiar
description. These  exercise the  power of a circuit court, under
the same  regulations as  they were  formerly  exercised  by  the
district court of Kentucky, which was the first of the kind.

   157. The  Act of  September 24,  1789, §10, gives the district
court of the Kentucky district, besides the usual jurisdiction of
a district  court, the  jurisdiction of  all  causes,  except  of
appeals and  writs of  error, thereinafter  made cognizable  in a
circuit court,  and writs  of error  and appeals were to lie from
decisions therein  to the  supreme court,  and  under  the,  same
regulations. By  the 12th  section, authority was given to remove
cases from  a state court to such court, in the same manner as to
a circuit court.


          Bouvier's Law Dictionary : C3 : Page 27 of 56


  3. The territorial courts.

  158. The act to establish the territorial government of Oregon,
approved August  14, 1848,  establishes the judicial power of the
said territory  as  follows:  §9.  The  judicial  power  of  said
territory shall  be vested  in a  supreme court, district courts,
probate courts,  and in  justices of the peace. The supreme court
shall consist  of a chief justice and two associate justices, any
two of  whom shall constitute a quorum, and who shall hold a term
at the  seat of  government of said territory annually;  and they
shall hold  their offices  during the  period of  four years, and
until their successors shall be appointed and qualified. The said
territory shall  be divided  into three judicial districts, and a
district court  shall be held in each of said districts by one of
the just of the supreme court, at such times and places as may be
prescribed by  law;   and  the  said  judges  shall  after  their
appointments, respectively,  reside in  the districts which shall
be assigned  them The  jurisdiction of  the several courts herein
provided for,  both appellate  and  original,  and  that  of  the
probate courts  and of justices of the peace, shall be as limited
by law:  Provided, That  justices of  the peace  shall  not  have
jurisdiction of  any case  in which  the title  to land  shall in
anywise come  in question,  or where  the debt or damages claimed
shall exceed  one hundred  dollars;   and the  said  supreme  and
district courts, respectively, shall possess chancery, as well as
common law,  jurisdiction. Each  district  court,  or  the  judge
thereof, shall  appoint its clerk, who shall also be the register
in chancery,  and shall  keep his  office at  the place where the
court may  be held.  Writs of  error,  bills  of  exception,  and
appeals, shall  be allowed  in all cases from the final decisions
of  said  district  courts  to  the  supreme  court,  under  such
regulations as  may be prescribed by law;  but in no case removed
to the  supreme court  shall trial  by jury  be allowed  in  said
court. The  supreme court, or the justices thereof, shall appoint
its own  clerk, and  every clerk  shall hold  his office  at  the
pleasure of  the court  for which  he shall  have been appointed.
Writs of  error and  appeals from the final decisions of the said
supreme court  shall be  allowed, and way be taken to the supreme
court of  the United  States, in  the same  manner, and under the
same regulations,  as from  the  circuit  courts  of  the  United
States, where  the value  of  the  property,  or  the  amount  in
controversy, to  be ascertained  by the  oath or  affirmation  of
either party,  or  other  competent  witness,  shall  exceed  two
thousand dollars;  and in all cases where the constitution of the
United States,  or acts  of congress,  or a  treaty of the United
States, is  brought in  question;   and each of the said district
courts shall have and exercise the same jurisdiction in all cases
arising under the constitution of the United States, and the laws
of said  territory, as  is vested  in the  circuit  and  district
courts of the United States writs of error and appeal in all such
cases shall  be made  to the supreme court of said territory, the
same as  in other  cases. Writs  of error  and, appeals  from the
final decisions  of said  supreme court shall be allowed, and may
be taken  to the  supreme court of the United States, in the same
manner as from the circuit courts of the United States, where the
value of the property, or the amount in controversy, shall exceed
two thousand  dollars;   and each  of said  district courts shall


          Bouvier's Law Dictionary : C3 : Page 28 of 56


have and  exercise the  same jurisdiction  in all  cases  arising
under the  constitution and  laws of  the United  States,  as  is
vested in  the circuit  and district courts of the United States,
and also  of all  cases  arising  under  the  laws  of  the  said
territory, and  otherwise. The  said clerk  shall receive, in all
such cases, the same fees which the clerks of the district courts
of the late Wisconsin Territory received for similar services.

   159. -  §10. There  shall be  appointed an  attorney for  said
territory, who shall continue in office for four years, and until
his successor  shall be  appointed and  qualified, unless  sooner
removed by the president, and who shall receive the same fees and
salary as  were provided  by law  for the  attorney of the United
States for the late territory of Wisconsin. There shall also be a
marshal for  the territory  appointed, who  shall hold his office
for four  years, and  until his  successor shall be appointed and
qualified, unless  sooner removed by the president, and who shall
execute  all   processes  issuing  from  the  said  courts,  when
exercising their  jurisdiction as  circuit and district courts of
the United  States;   he shall  perform the duties, be subject to
the same  regulation and  penalties, and  be entitled to the same
fees, as  were provided  by law  for the  marshal of the district
court of  the United  States, for the present [late] territory of
Wisconsin;   and shall,  in addition, be paid two hundred dollars
annually as a compensation for extra services.

   160. The  act to  establish a territorial government for Utah,
approved September  9, 1850,  contains the  following  provisions
relative to this subject. They are the same in most respects with
the preceding.  Section 9  of  this  act  provides,  "  That  the
judicial power  of said  territory shall  be vested  in a supreme
court, district  courts, probate  courts, and  in justices of the
peace. The supreme court shall consist of a chief justice and two
associate justices,  any two  of whom  shall constitute a quorum,
and who  shall hold  a term  at the  seat of  government of  said
territory annually,  and they shall hold their offices during the
period of  four years.  The said  territory shall be divided into
three judicial  districts, and  a district court shall be held in
each of  said districts  by one  of the  justices of  the supreme
court, at  such time  and place as may be prescribed by law;  and
the said  judges shall,  after their  appointments, respectively,
reside in  the  districts  which  shall  be  assigned  them.  The
jurisdiction of  the several  courts herein  provided  for,  both
appellate and  original, and  that of  the probate  courts and of
justices of the peace, shall be as limited by law: Provided, That
justices of  the peace  shall not have jurisdiction of any matter
in controversy  when the  title or  boundaries of  land may be in
dispute, or  where the  debt or  sum  claimed  shall  exceed  one
hundred dollars;   and  the said  supreme  and  district  courts,
respectively, shall  possess  chancery  as  well  as  common  law
jurisdiction. Each  district court,  or the  judge thereof, shall
appoint its  clerk, who  shall also  be the register in chancery,
and shall  keep his  office at  the place  where the court may be
held. Writs  of error,  bills of  exception, and appeals shall be
allowed in  all cases  from the  final decisions of said district
courts to  the supreme  court, under  such regulations  as may be
prescribed by  law;   but in no case removed to the supreme court


          Bouvier's Law Dictionary : C3 : Page 29 of 56


shall trial  by jury be allowed in said court. The supreme court,
or the  justices thereof,  shall appoint its own clerk, and every
clerk shall  hold his  office at  the pleasure  of the  court for
which be  shall have  been appointed. Writs of error, and appeals
from the final decisions of said supreme court, shall be allowed,
and may  be taken  to the  supreme court of the United States, in
the same  manner and  under the  same  regulations  as  from  the
circuit courts  of the  United States,  where the  value  of  the
property or  the amount  in controversy, to be ascertained by the
oath or  affirmation of either party, or other competent witness,
shall exceed  two thousand  dollars, except  only that,  in  all,
cases involving  title to  slaves, the  said writs  of  error  or
appeals shall  be allowed  and decided by the said supreme court,
without regard  to the value of the matter, property, or title in
controversy;   and except,  also, that  a writ of error or appeal
shall also  be allowed to the supreme court of the United States,
from the decisions of the said supreme court created by this act,
or of  any judge  thereof, or  of the  district courts created by
this act, or of any judge thereof, upon any writ of habeas corpus
involving the  question of personal freedom: and each of the said
district courts  shall have and exercise the same jurisdiction in
all cases  arising under  the constitution and laws of the United
States as  is vested  in the  circuit and  district courts of the
United States;   and  the said supreme and district courts of the
said territory,  and the respective judges thereof, shall and may
grant writs  of habeas  corpus in all cases in which the same are
granted by  the judges  of the  United States  in the District of
Columbia;   and the  first six days of every term of said courts,
or so  much thereof  as shall be necessary, shall be appropriated
to the  trial of  causes arising  under the said constitution and
laws;  and writs of error and appeal, in all such cases, shall be
made to the supreme court of said territory, the same as in other
cases. The  said clerk  shall receive  in all such cases the same
fees which  the clerks of the district courts of Oregon territory
now receive for similar services.

   161. "There shall be appointed an attorney for said territory,
who shall  continue in  office  for  four  years,  unless  sooner
removed by the president, and who shall receive the same fees and
salary as  the attorney  of the  United States  for  the  present
territory of  Oregon. There  shall also  be  a  marshal  for  the
territory appointed,  who shall  hold his  office for four years,
unless sooner removed by the president, and who shall execute all
processes issuing  from the  said courts,  when exercising  their
jurisdiction as circuit and district courts of the United States:
he shall  perform the  duties, be  subject to the same regulation
and penalties,  and be  entitled to the same fees as the marshall
of the  district court  of the  United  States  for  the  present
territory of Oregon;  and shall, in addition, be paid two hundred
dollars annually as a compensation for extra sci-vices."

   COURTESY, OR  CURTESY, Scotch  law. A right which vests in the
hushand, and is in the nature of a life-rent. It is a counterpart
of the  terce. Courtesy requires, 1st. That there shall have been
a living  child born of the marriage, who is heir of the wife, or
who, if  surviving, would have been entitled to succeed. 2d. That
the wife shall have succeeded to the subjects in question as heir


          Bouvier's Law Dictionary : C3 : Page 30 of 56


either of  line, or of talzie, or of provision. 1 Bell's Com. 61;
2 Ersk. 9, 53. See Curtesy.

   COURTESY OF ENGLAND. See Estates by the Courtesy.

   COUSIN, domest.  rel. Cousins are kindred who are the issue of
two brothers  or two sisters, or of a brother and a sister. Those
who descend  from the  brother or  sister of  the father  of  the
person spoken  of are called patternal cousins;  maternal cousins
are those  who are  descended from the brothers or sisters of the
mother. Vide 2 Bro. C. C. 125;  1 Sim. & Stu. 301;  3 Russ. C. C.
140;  9 Sim. R. 386, 457.

   COVENANT, remedies.  The name  of an action instituted for the
recovery of damages for the breach of a covenant or promise under
seal. 2 Ld. Raym. 1536
 F;  N. B. 145 Com. Dig. Pleader, 2 V 2 Id. Covenant, A 1;  Bouv.
lnst. Index, h. t.

   2. The  subject will  be considered  with reference, 1. To the
kind  of  claim  or  obligation  on  which  this  action  may  be
maintained. 2.  The form  of the declaration. 3. The plea. 4. The
judgment.

   3.- 1.  To support  this action,  there must  be a breach of a
promise under  seal. 6  Port. R. 201;  5 Pike, 263;  4 Dana, 381;
6 Miss.  R. 29.  Such promise may be contained in a deed-poll, or
indenture, or be express or implied by. law from the terms of the
deed;   or for  the performance  of something  in futuro, or that
something has  been done;   or in some cases, though it relate to
something in  presenti, as that the covenantor has, a good title.
2 Saund.  181, b.  Though, in  general, it  is said that covenant
will not  lie on a contract inpresenti, as on a covenant to stand
seized, or  that a certain horse shall henceforth be the property
of another.  Plowd. 308;   Com. Dig. Covenant, A 1;  1 Chit. PI..
110. The  action of  covenant is  the  peculiar  remedy  for  the
non-performance of  a promise  under seal,  where the damages are
unliquidated, and  depend in  amount on the opinion of a jury, in
which case  neithor debt  nor  assumpsit  can  be  supported  but
covenant as  well as the action of debt, may be maintained upon a
single bill  for a  sum certain.  When the breach of the covenant
amounts to misfeasance, the covenantee has an election to proceed
by action  of covenant,  or by  action on the case for a tort, as
against a  lessee, either  during his  term  or  afterwards,  for
waste;   2 Bl.  R. 1111;   2  Bl. R.  848;   but  this  has  been
questioned. When  the contract  under seal  has been  enlarged by
parol, the  substituted agreement  will be  considered,  together
with the  original agreement,  as a  simple contract. 2 Watt's R.
451 1 Chit. Pl. 96;  3 T. R. 590.

   4. - 2. The declaration must state that the contract was under
seal and  it should  make profert  of it, or show some excuse for
the omission.  3 T.  11. 151. It is not, in general, requisite to
state tho  consideration of  the defendant's  promise, because  a
contract under  seal usually  imports a  consideration;  but when
the performance  of the  consideration  constitutes  a  condition
precedent, such  performance must be averred. So much only of the


          Bouvier's Law Dictionary : C3 : Page 31 of 56


deed and  covenant should  be set  forth as  is essential  to the
cause of  action: although it is usual to declare in the words of
the deed, each covenant may be stated as to its legal effect. The
breach may  be in  the negative of the covenant generally 4 Dall.
R. 436;   or, according to the legal effect, and sometimes in the
alternative and  several breaches  may be assigned at common law.
Damages being  the object  of the suit, should be laid sufficient
to cover  the real amount. Vide 3 Serg. & Rawle, 364;  4 Dall. R.
436 2  Yeates' R.  470 3  Serg. &  Rawle, 564,  567;   9 Serg.  &
Rawle, 45.

   5. -  3. It is said that strictly there is no general issue in
this action,  though the  plea of non est factum has been said by
an intelligent  writer to  be the  general issue. Steph. Pl. 174.
But this  plea only puts in issue the fact of scaling the deed. 1
Chit. Pl.  116. Non  infregit conventionem,  and nil  debet, have
both been  held to  be insufficient. Com. Dig. Pleader, 2 V 4. In
Pennsylvania, by a practice peculiar to that state, the defendant
may plead  covenants and  under this.  plea, upon  notice of  the
special matter,  in writing,  to the  plaintiff, without form, he
may give  anything in  evidence which  he might  have pleaded.  4
Dall. 439;   2  Yeates, 107;   15  Serg. &  Rawle, 105.  And this
evidence, it  seems, may  be given  in the  circuit courts of the
United States  in that state without notice, unless called for. 2
W. C. C. R. 4 5 6.

   6. - 4. The judgmeut is that the plaintiff recover a named sum
for his  damages, which  he has sustained by reason of the breach
or breaches of covenant, together with costs.

  COVENANT, contracts. A covenant, conventio, in its most general
signification, means  any kind of promise or contract, whether it
be made  in writing  or by parol. Hawk. P. C. b. 1, c. 27, §7, s.
4. In  a more  technical sense,  and the  one in which it is here
considered, a  covenant is  an  agreement  between  two  or  more
persons, entered  into in  writing and under seal, whereby either
party stipulates  for the  truth of certain facts, or promises to
perform or  give something  to the  other, or to abstain from the
performance of  certain things.  2 Bl.  Com.  303-4;    Bac.  Ab.
Covenant, in  pr.;   4 Cruise,  446;   Sheppard, Touchs.  160;  1
Harring. 151,  233 1  Bibb, 379;   2  Bibb, 614;  3 John. 44;  20
John. 85;  4 Day, 321.

   2. It  differs from  an express  assumpsit in  this, that  the
former may  be verbal,  or in  writing not  under seal, while the
latter must  always be  by deed. In an assumpsit, a consideration
must be  shown;   in a  covenant no consideration is necessary to
give it validity, even in a court of equity. Plowd. 308;  7 T. R.
447;  4 Barn. & Ald. 652;  3 Bingh. 111.

   3. It is proposed to consider first, the general requisites of
a covenant;  and secondly, the several kinds of covenants.

   4. -  §1. The general requisites are, 1st. Proper parties. 2d.
Words of agreement. 3d A legal purpose. 4th. A proper form.

   5. -  1st. The parties must be such as by law can enter into a


          Bouvier's Law Dictionary : C3 : Page 32 of 56


contract. If  either for want of understanding, as in the case of
an idiot  or lunatic;   or  in the  case of  an infant, where the
contract  is   not  for   his  benefit;     or   where  there  is
understanding, but  owing to certain causes, as coverture, in the
case of  a married  woman, or  duress, in every case, the parties
are not  competent, they  cannot bind  themselves. See Parties to
Actions.

  6. - 2d. There must be an agreement. The assent or consent must
be mutual  for the  agreement would be incomplete if either party
withheld his  assent to  any of  its terms.  The  assent  of  the
parties to  a contract necessarily supposes a free, fair, serious
exercise of  the reasoning  faculty. Now, if from any cause, this
free assent  be not  given, the  contract  is  not  binding.  See
Consent.

  7. - 3d. A covenant against any positive law, or public policy,
is, generally speaking, void. See Nullity;  Shep. Touchs. 163. As
an example  of the  first, is  a covenant by one man that he will
rob another;   and  of the  last, a  covenant by  a  merchant  or
tradesman that  he will  not follow  his occupation  or  calling.
This, if it be unlimited, is absolutely void but, if the covenant
be that  he shall  not pursue his business in a particular place,
as, that  he will  not trade  in the  city of  Philadelphia,  the
covenant is  no longer  against public  policy. See Shep. Touchs.
164. A covenant to do an impossible thing is also void. Ib.

   8. -  4th. To  make a  covenant, it  must,  according  to  the
definition above  given, be by deed, or under seal. No particular
form of  words is  necessary to  make a  covenant, but  any words
which manifest  the intention  of the  parties, in respect to the
subject matter  of the  contract, are  sufficient.  Sec  numerous
examples in  Bac. Abr.  Covenant, A  Selw. N.  P. 469;  Com. Dig.
Covenant, A 2;  3 Johns. R. 44;  5 Munf. 483.

   9. In  Pennsylvania, Delaware, and Missouri, it is declared by
statute that  the words grant, bargain, and sell, shall amount to
a covenant  that the grantor was seised of an estate in fee, free
from all  incumbrances done  or suffered  by him,  and for  quiet
enjoyment against  his acts.  But it has been adjudged that those
words in the Pennsylvania statute of 1715, (and the decision will
equally apply to the statutory language in the other two states,)
did not  amount to  a general  warranty, but merely to a covenant
that  the   grantor  had  not  done  any  act,  nor  created  any
incumbrance whereby  the estate might be defeated. 2 Bin. 95;  11
S. & R. 111, 112;  4 Kent, Com. 460.

   10. - §2. The several kinds of covenants. They are, 1. Express
or implied.  1. An  express, covenant,  or a covenant in fact, is
one expressly  agreed between  the parties  and inserted  in  the
deed. The  law does  not require any particular form to create an
express covenant.  The formal  word "covenant"  is therefore  not
indispensably requisite.  2. Mod. 268;  3 Keb. 848;  1 Leon, 324;
1 Bing. 433;  8 J. B. Moore, 546;  1 Ch. Cas. 294;  16 East, 352;
12 East,  182 n.;   1  Bibb, 379;   2  Bibb 614;   3 John. 44;  5
Cowen, 170;   4  Day, 321 4 Conn. 508;  1 Harring. 233. The words
"I oblige;" "agree," 1 Ves. 516;  2 Mod. 266;  or, "I bind myself


          Bouvier's Law Dictionary : C3 : Page 33 of 56


to pay  so much such a day, and so much such another day;" Hardr.
178;   3 Leon.  119, Pl.  199;  are held to be covenants;  and so
are the  word's of  a bond.  1 Ch.  Cas. 194. But words importing
merely an  order or direction that other persons should pay a sum
of money, are not a coveiaant. 6 J. B. Moore, 202, n. (a.)

   11. -  1. An implied covenant is one which the law intends and
implies, though it be not expressed in words. 1 Common Bench Rep.
402;   co. Lit. 139, b;  Vaugnan's Rep. 118;  Rawle on Covenants,
364. There  are some  words which  of themselves do not import an
express covenant,  yet being  made use  of in  certain contracts,
have a  similar operation  and are  called covenants in law. They
are as  effectually binding on the parties as if expressed in the
most unequivocal terms. Bac. Ab. Covenant, B. A few examples will
fully explain  this. If a lessor demise and grant to his lessee a
house or  lands for a certain term, the law will imply a covenant
on the  part of the lessor, that the lessee shall during the term
quietly enjoy  the same  against all incumbrances. Co. Litt. 384.
When in  a lease  the words "grant," 1 Mod. 113 Freem. 367;  Cro.
Eliz. 214;   4  Taunt. 609;   "grant  and demise,  " 4 Wend. 502;
"demise," 10  Mod. 162;  4 Co. 80;  Hob. 12;  or " demiserunt," I
Show. 79  1 Salk.  137, are  used, they  are so many instances of
implied covenants.  And the  words "yielding  and  paying"  in  a
lease, imply  a covenant  on the part of lessee, that he will pay
the rent. 9 Verm. 151;  3 Penn. 461, 464.

   12. -  2. Real and personal. 1st. A real covenant is one which
has for  its object  something annexed  to, or  inherent  in,  or
connected with  land or  other property.  Co Litt. 334;  enk 241;
Cruise, Dig.  tit. 32,  c. 25,  s. 22;  Platt. on Cov. 60, 61;  2
Bl. Com.  304. A  covenant real,  which necessarily runs with the
land, as to pay rent, not to cut timber, and the like, is said to
be an inherent covenant. Shep. To. 161. A covenant real runs with
the land  and descends  to the heir;  it is also transferred to a
purchaser. Such  covenants are said to run with the land, so that
he who has the one is subject to the other. Bac. Ab. Covenants, E
2. See  2 Penn.  507;  10 Wend 180;  12 Mass. 306;  17 Mass. 586;
5 Cowen,  137;   5 Ham. 156;  5 Conn. 497;  1 Wash. C. C. 375;  8
Cowen 206;  1 Dall. 210;  11 Shep. 283;  6 Met. 139;  3 Mete. 81;
3 Harring. 338;  17 Wend. 136.

   13. -  2. As  commonly reckoned,  there are five covenants for
title, viz:  1. Covenant  for seisin.  2. That  the  grantor  has
perfect right  to convey.  3.  That  the  grantee  shall  quietly
possess and  enjoy the  premises without  interuption,  called  a
covenant  for   quiet  enjoyment.   4.   The   covenant   against
incumbrances. 5.  The covenant  for futher  assurance. 6. Besides
these covenants,  there is  another frequently resorted to in the
United Staes,  which is  relied on more, perhaps, than any other,
called the  covenant of  warranty. See  Rawle  on  Covenants  for
Title, where  the  import  and  effect  of  these  covenants  are
elaborately and luminously discussed.

   14. - 3. A personal covenant relates only to matters personal,
as distinguished  from real,  and is  binding on  the  covenantur
during life,  and  on  his  personal  representatives  after  his
decease, in  respect of  his assets.  According  to  Sir  William


          Bouvier's Law Dictionary : C3 : Page 34 of 56


Blackstone, a  personal convenant may be transformed into a real,
by the  mere circumstance  of the  heirs being named therein, and
having assets  by descent  from the  covenantor. 2 Bl. Com 304. A
covenant is  personal in  another sense,  where the covenantor is
bound to    fulfil  the  covenant  himself;    as,  to  teach  an
apprentice. F.N.B. 340, A.

   15. Personal  covenants are  also said  to be  transitive  and
intransitive;   the former,  when the  duty  of  performing  them
passes to  the covenantor's representatives;  the latter, when it
is  limited  to  himself;    as,  in  the  case  of  teaching  an
apprentice. Bac. Ab. h.t.

   16. As  they affect each other in the same deed, covenants may
be divided into three classes. 1st. Dependent covenants are those
in which  the performance,  of one  depends on the performance of
the other;   there  may be  conditions which  must  be  performed
before the  other party is liable to an action on his covenant. 8
S. &  R. 268;   4 Conn. 3;  1 Blackf. 175;  John. 209;  2 Stew. &
Port. 60;   6  Cowen 296;  3 Ala. R. 330;  3 Pike 581;  2 W. & S.
227;  5 Shep. 232;  11 Verm. 549;  4 W. C. C. 714;  Platt on Cov.
71;   2 Dougl.  689;   Lofft, 191;   2  Selw. N.  P. 443, 444. To
ascertain whether  covenants are  dependent or not, the intention
of the  parties is  to be sought for and regarded rather than the
order or  time in which the acts are to be done, or the structure
of the  instrument, or  the arrangements of the covenant. 4 Wash.
C. C.  714;   1 Root,  170;   4 Rand. 352;  4 Rawle, 26;  5 Wend.
496;  2 John. 145;  13 Mass. 410;  2 W. & S. 227;  4 W. & S. 527;
Willis, 157;  7 T. R. 130;  8 T.R. 366;  5 B. & P. 223;  1 Saund.
320 n.

   17. - 2d. Some covenants are mutual conditions to be performed
at the same time;  these are concurrent covenants. When, in these
cases, one  party is redy and offers to perform his part, and the
other refuses  or neglects  to perform  his, he  who is ready and
offers, has  fulfilled his engagement, and may maintain an action
for the  default of  the other,  though it  is not  certain  that
either is obliged to do the first act. 4 Wash. C. C. 714;  Dougl.
698;  2 Selw. N. P. 443;  Platt. on Cov. 71.

   18.- -  3d. Covenants  are independent  or mutual, when either
party may  recover damages  from the  other for the injury he may
have received by a breach of the covenants in his favor, and when
it is  no excuse  for the  defendant to  allege a  breach of  the
covenants on  the part of the plaintiff. 2 Wash. C. C. R. 456;  5
Shepl. 372;   4  Leigh, 21;   3 Watts & S. 300;  13 Mass. 410;  2
Pick. 300;   2  John. 145;  10 John. 203;  Minor 21;  2 Bibb, 15;
3 Stew. 361;  1 Fairf.  49;  6 Binn. 166;  2 Marsh. 429;  7 John.
249;   5 Wend.  496;  3 Miss. 329;  2 Har. & J. 467;  4 Har. & J.
285;  2 Marsh. 429;  4 Conn. 3.

  19. Covenants are affirmative and negative. 1st. An affirmative
covenant is  one by  whicb  the  covenantor  binds  himself  that
something has  already been done or shall be performed hereafter.
Such L  convenant will  not deprive  a man  of a  right  lawfully
enjoyed by  him independently  of the  covenant;   5 as,  if  the
lessor agreed  with the  lessee that  he shall  have  thorns  for


          Bouvier's Law Dictionary : C3 : Page 35 of 56


hedges growing  upon the  land, by  assignment  of  the  lessor's
bailiff;   here no restraint is imposed upon the exercise of that
liberty which  the law allows to the lessee, and therefore he may
take hedge-bote  without assignment.  Dy. 19 b, pl. 115;  1 Leon,
251.

   20. -  2d. A  negative covenant  is one  where the party binds
himself that  he has not performed and will not perform a certain
act;   as, that  he will  not encumber. Such a covenant cannot be
said to  be performed until it becomes impossible to break it. On
this ground  the courts  are unwilling  to construe a covenant of
this kind  to be a condition precedent. Therefore, where a tailor
assigned his  trade to  the defendant, and covenanted thenceforth
to desist  from carrying  on the  said business  with any  of the
customers, and  the defendant in consideration of the performance
thereof, covenanted to pay him a life annuity of 190, it was held
that if  the words "in consideration of the performance thereof,"
should  be  deemed  to  amount  to  a  condition  precedent,  the
plaintiff would  never obtain his annuity;  because as at anytime
during his  life he  might   exercise his former trade, until his
death it  could never be ascertained whether he had performed the
covenant or  not. 2  Saund. 156;  1 Sid. 464;  1 Mod. 64;  2 Keb.
674. The defendant, however, on a breach by plaintiff, might have
his remedy  by  a  crossaction  of  covenant.  There  is  also  a
difference  between   a  negative  covenant,  which  is  only  in
affirmance of  an affirmative  covenant precedent, and a negative
covenant which  is additional to the affirmative covenant. 1 Sid.
87;  1 Keb. 334, 372. To a covenant of the former class a plea of
performance generally  is good,  but not  to  the  latter;    the
defendant in that case must plead specially. Id.

  21. Covenants, considered with regard to the parties who are to
perform them, are joint or several.

   1st. A joint covenant is one by which several parties agree to
perform or  do a  thing together. In this case although there are
several covenantors  there  is  but  one  contract,  and  if  the
covenant be broken, all the covenantors living, must be sued;  as
there is  not a  separate obligation of each, they cannot be sued
separately.

   22. - 2d. A several covenant is one entered into by one person
only. It  frequently happens  that a number of persons enter into
the same  contract, and  that each  binds himself  to perform the
whole of  it;  in such case, when the Contract is under seal, the
covenantors are  severally bound  for the  performance of it. The
terms  usually   employed  to  make  a  several  covenant  are  "
severally," or  " each  of us." In practice, it is common for the
parties to  bind themselves  jointly and  severally, and then the
covenant is  both joint  and several.  Vide Hamm.  on Parties 19;
Cruise, Dig. tit. 32, c. 25, s. 18;  Bac. Ab. Covenant D.

  23. Covenants are executed or executory.

   1st. An  executed covenant  is one  which relates  to  an  act
already performed. Shep. To. 161.


          Bouvier's Law Dictionary : C3 : Page 36 of 56


   24. -  2d. An  executory covenant  is one to be performed at a
future time. Shep. To. 161.

   25. Covenants are obligatory or declaratory.

   1st. An  obligatory covenant  is one  which is  binding on the
party himself,  and shall  never be  construed to  raise a use. 1
Sid. 27;  1 Keb. 334.

   26. -  2d. A declaratory covenant is one which serves to limit
and direct uses. 1 Sid. 27;  1 Heb. 334.

  27. Covenants are principal and auxiliary.

   1st. A principal covenant is one which relates directly to the
principal  matter  of  the  contract  entered  into  between  the
parties;  as, if A covenants to serve B for one year.

   28. -  2d. An  auxiliary covenant  is one, which, not relating
directly to  the principal  matter of  the contract  between  the
parties, yet  relates to  something connected  with it;  as, if A
covenants with  B, that  C will perform his covenant to serve him
for one  year. In  this case,  if the principal covenant is void,
the auxiliary is discharged. Anstr. 256.

   29. Covenants  are legal  or illegal. 1st. A legal covenant is
one not  forbidden by  law. Covenants  of this  kind  are  always
binding on the parties.

   30. -  2d. An illegal covenant is one forbidden by law, either
expressly  or   by  implication.  A  covenant  entered  into,  in
violation of,  the express  provision of  a statute is absolutely
void. 5  Har. &  J. 193;   5 N. H. Rep. 96;  6 N. H. Rep. 225;  4
Dall. 298;   6  Binn. 321;  4 S.& R. 159;  1 Binn. 118;  4 Halst.
252. A  covenant is also void, if it be of immoral nature;  as, a
covenant for  future illicit  intercourse and  cohabitation;    3
Monr. 35;  3 Burr. 1568;  S. C. 1 Bl. Rep. 517;  1 Esp. 13;  1 B.
P. 340;   or against public policy;  5 Mass. 385;  7 Greenl. 113;
4 Mass. 370;  5 Halst. 87;  4 Wash. C. C. 297;  11 Wheat. 258;  3
Day, 145;   2  McLean, 464;   7 Watts, 152;  5 Watts & S. 315;  5
How. Miss.  769;   Geo. Decis.  part 1, 39 in restraint of trade,
when the  restraiut is  general;   21 Wend. 166;  19 Pick. 51;  6
Pick. 206;   7 Cowen, 307;  or fraudulent between the parties;  5
Mass. 16;  4 S. & R. 488;  4 Dall. 250;  7 W. & S. 111;  or third
persons;   3 Day, 450;  14 S. & R. 214;  3 Caines, 213;  15 Pick.
49;  2 John. 286 12 John. 306.

   31. Covenants,  in the  disjunctive or  alternative, are those
which give  the covenantor the choice of doing, or the covenontee
the choice  of having, performed one of two or more things at his
election;   as, a  covenant to  make a lease to Titus, or pay him
one hundred dollars on the fourth day of July, as the covenantor,
or the  covenantee, as  the case  may be,  shall prefer. Platt on
Cov. 21.

   32. Collateral  covenants are  such as concern some collateral
thing, which does not at all, or not so immediately relate to the


          Bouvier's Law Dictionary : C3 : Page 37 of 56


thing granted;   as,  to pay  a sum  of money  in gross, that the
lessor shall  distrain for  rent, on  some other  land than  that
which is  demised, or  the like.  Touchs. 161;   4 Burr. 2446;  2
Wils. R.  27;   1 Ves.  R. 56.  These covenants  are also  termed
covenants in  gross. Vide 5 Barn. & Ald. 7, 8;  Platt on Cov. 69,
70.

  COVENANT NOT TO SUE. This is a covenant entered into by a party
who had  a cause of action at the time of making it, and by which
he agrees not to sue the party liable to such action.

  2. Covenants of this nature, are either covenants perpetual not
to sue, or covenants not to sue for a limited time;  for example,
seven years.

   3. -  §1. Covenants  perpetual  not  to  sue.  These  will  be
considered with  regard to  their effect  as relates,  1. To  the
covnantee;  2. To his partners or co-debtors.

   4. -  1. A  covenant not to sue the covenantee at all, has the
effect of a release to him, and may be pleaded as such to avoid a
circuity of  action. Cro.  EIiz. 623;  1 T. R. 446;  8 T. R. 486;
1 Ld. Raym 688;  S. C. Holt, 178;  2 Salk. 575;  3 Salk. 298;  12
Mod. 415,  548;   7 Mass.  153, 265;  16 Mass. 24;  17 Mass. 623.
And see 11 Serg. & Rawle, 149.

   5. -  2. Where  the covenantee  is jointly and severally bound
with another to the covenantor, a covenant not to sue him will be
no protection  to the  other wbo  may  be  sued  on  his  several
obligations and  such a  covenant does  not mount to a release to
him. 2  Salk. 575;   S. C. 12 Mod. 551;  8 T. R. 168;  6 Munf. 6;
1 Com. 139;  4 Greenl. 421;  2 Dana, 107;  17 Mass. 623, 628;  16
Mass. 24;   8  Mass. 480.  A covenant not to sue, entered into by
only one of several partners, cannot be set up as a release in an
action by all the partners. 3 P. & D. 149.

   6. -  §2. Covenant  not to  sue for  - a  limited time. Such a
covenant does  not operate as a release, nor can it be pleaded as
such, but  is a  covenant only  for a breach of which the obliger
may bring  his action.  Carth. 63;   1 Show. 46;  Comb 123, 4;  2
Salk. 573;  6 Wend. 471.

  COVENANT FOR QUIET ENJOYMENT. A covenant usually contained in a
lease, by  which the  lessor covenants  or agrees that the tenant
shall quietly enjoy the premises leased. 11 East, 641.

   2. Such a covenant is express or implied;  express, when it is
so mentioned  in the  deed it  is implied,  either from the words
used, or  from the  conduct of  the lessor.  The words "grant" or
"demise" are  held to  amount to  an implied  covenant for  quiet
enjoyment, unless  afterwards restrained  by a  qualified express
covenant. 1 Chit. Pr. 344.

  COVENANT TO STAND SEISED TO USES. A species of conveyance which
derives its effect from the statute of uses, and operates without
transmutation of possession.


          Bouvier's Law Dictionary : C3 : Page 38 of 56


    2.  By this  conveyance, a person seised of lands, covenant's
that he  will stand  seised of  them to  the use  of another.  On
executing the covenant, the other party becomes seised of the use
of the  land, according to the terms of the use;  and the statute
immediately annexes  the possession  to the  use. This conveyance
has the  same force  and effect  as a  common deed of bargain and
sale;  the great distinction between them is, that the former can
only be  made use  of  among near domestic relations, for it must
be founded  on the consideration of blood or marriage. 2 Bl. Com.
338;  2 Bouv. Inst. n. 2080;  4 Kent Com 480;  Lilly's Reg.h. t.;
1 Vern.  by Raithby,  40, n.;   Cruise,  Dig. tit. 32, c. 10;  11
John. R. 337;  1 John. Cas. 91;  7 Pick. R. 111;  1 Hayw.,R. 251,
259, 271,  note;   1 Conn.  R. 354;   20 John. R. 85;  4 Mass. R.
135;   4 Hayw.  R. 229;   1 Cowen, R. 622;  3 N. H. Rep. 234;  16
John. R. 515;  9 Wend. R. 641;  7 Mass. R. 384.

   COVENANT FOR  TITLE. An  assurance to  the purchaser  that the
grantor has  the very  estate in  quantity and  quality which  he
purports to convey. 11 East, 642. See 4 Dall. Rep. 439.

  COVENANTEE. One in whose favor a covenant is made.

  COVENANTOR. One who becomes bound to perform a covenant.

   2. To  become a  covenantor a  person must  be sui  juris, and
intend, at  the time  of becoming  bound, to  covenant to perform
some act mentioned in the covenant. He can be discharged from his
covenant by performance, or, by the act of the covenantee, as the
non-performance  of  a  condition  precedent,  a  release,  or  a
rescission of the contract.

   COVENANTS PERFORMED,  pleading. In Pennsylvania, the defendant
may plead  covenants performed to an action of covenant, and upon
this plea,  upon informal  notice to  the plaintiff,  he may give
anything in evidence which he might have pleaded. 4 Dall. 439;  2
Yeates, 107;  15 S. & R. 105. And this evidence, it seems, may be
given in  the circuit  court without  notice unless called for. 2
Wash. C. C. R. 456.

   COVENTRY ACT, criminal law. The common name for the statute 22
and 23  Car. II.  c. 1;  it having been enacted in consequence of
an assault  on Sir  John Coventry in the street, and slitting his
nose, in  revenge, as  was supposed,  for  some  obnoxious  words
uttered by him in parliament.

   2. By this statute it is enacted, that if any person shall, of
malice aforethought,  and by  laying in  wait, unlawfully  cut or
disable the  tongue, put  out an  eye, slit the nose, cut off the
nose or  lip, or  cut off  or disable  any limb, or member of any
other person,  with intent to maim or disfigure him, such person,
his counsellors,  aiders and abettors, shall be guilty of felony,
without benefit of clergy. 4 Bl. Com. 207. This statute is copied
by the act of the legislature of Pennsylvania, of April 22, 1794,
s. 6,  3 Smith's Laws of Pa. 188;  and the offence is punished by
fine and  imprisonment. For the act of Connecticut, see 2 Swift's
Dig. 293.


          Bouvier's Law Dictionary : C3 : Page 39 of 56


   COVERT, BARON.  A wife;   so  called, from her being under the
cover or protection of her hushand, baron or lord.

  COVERTURE. The state or condition of a married woman.

   2. During  coverture, the being of the wife is civilly merged,
for many purposes, into that of her hushand;  she can, therefore,
in general,  make no  contracts without  his consent,  express or
implied. Com. Dig. Baron and Feme, W;  Pleader, 2 A 1;  1 Ch. Pl.
19, 45;  Litt. s. 28;  Chit. Contr. 39;  1 Bouv. Inst. n. 276.

   3. To  this rule  there are some exceptions: she may contract,
when it is for her benefit, as to save her from starvation. Chit.
Contr. 40.

  4. In some cases, when coercion has been used by the hushand to
induce her  to commit  crime, she  is exempted from punishment. 1
Ha1e, P. C. 516;  1 Russ. Cr. 16.

   COVIN, fraud.  A secret contrivance betwen two or more persons
to defraud  and prejudice another of his rights. Co. Litt 357, b;
Com. Dig. Covin, A;  1 Vin. Abr. 473. Vide Collusion;  Fraud.

   COW. In a penal statute which mentions both cows and beefer's,
it was held that by the term cow, must be understood one that had
a calf. 2 East, P. C. 616;  1 Leach, 105.

  COWARDICE. Pusillanimity;  fear.
 2.  By the  act for  the better  government of  the navy  of the
United States,  passed April 21, 1800, 1 Story, L. U. S. 761;  it
is enacted,  art. 5,  "every officer  or private  who  shall  not
properly observe  the orders  of his commanding officer, or shall
not use  his utmost  exertions to carry them into execution, when
ordered to  prepare for,  join in,  or when  actually engaged  in
battle;   or shall,  at such  time, basely  desert  his  duty  or
station, either  then, or  while in  sight of  an enemy, or shall
induce others  to do  so, every  person so  ofending,  shall,  on
conviction thereof  by a  general court martial, suffer death, or
such other punishment as the said court shall adjudge.

   3. -  Art. 6.  "Every officer  or private  who shall,  through
cowardice, negligence,  or disaffection,  in the  time of action,
withdraw from,  or keep out of battle, or shall not do his utmost
to take  or  destroy  every  vessel  which  it  is  his  duty  to
encounter, or  shall not  do his utmost ondeavor to afford relief
to ships  belonging to  the United  States, every  such  offender
shall, on  conviction thereof  by a general court martial, suffer
death, or such other punishment as the said court shall adjudge."

   4. By  the act  for establishing  rules and  articles for  the
government of  the armies  of the United States, passed April 10,
1806, it is enacted, art. 52, " any officer or soldier, who shall
mishehave himself  before the  enemy,  run  away,  or  shamefully
abandon any  fort, post,  or guard,  which  he  or  they  may  be
commanded to  defend, or  speak, words  inducing others to do the
like, or  shall cast  away his  arms and ammunition, or who shall
quit his  post or  colors to  plunder  and  pillage,  every  such


          Bouvier's Law Dictionary : C3 : Page 40 of 56


offender, being  duly convicted  thereof, shall  suffer death, or
such other  punishment as  shall be  ordered by the sentence of a
general court martial."

   CRANAGE. A toll paid for drawing merchandise out of vessels to
the wharf, so called, because the instrument used for the purpose
is called a crane. 8 Co. 46.

  TO CRAVE. To ask;  to demand.

  2. This word is frequently used in pleading;  as,-to crave oyer
of a bond on which the suit is brought;  and in the settlement of
accounts, the accountant general craves a credit or an allowance.
1 Chit. Pr. 520. See Oyer.

   CRAVEN. A  word of  obloquy, which  in trials  by battel,  was
pronounced by  the vanquished;   upon which judgment was rendered
against him.

   CREANCE. This is a French word, which, in its extensive sense,
signifies claim;   in  a narrower  sense it means a debt. 1 Bouv.
Inst. n. 1040, note.

  CREDENTIALS, international law. The instruments which authorize
and establish  a public  minister in his character with the state
or prince  to whom  they are  addressed. If  the state  or prince
receive the  minister, he  can be  received only  in the  quality
attributed to  him in  his credentials. They are, as it were, his
letter of  attorney, his  mandate  patent,  mandatum  manifestum.
Vattel, liv. 4, c. 6, §76.

   CREDIBILITY. Worthiness  of belief.  To entitle  a witness  to
credibility, he must be competent. Vide Competency.

   2.  Human  testimony  can  seldom  acquire  the  certainty  of
demonstration. Witnesses not unfrequently are mistaken or wish to
deceive;   the most  that can be expected is that moral certainty
which arises  from analogy.  The credibility which is attached to
such testimony,  arises. from  the double  presumption  that  the
witnesses have good sense and intelligence, and that they are not
mistaken nor  deceived;    they  are  further  presumed  to  have
probity, and that they do not wish to deceive.

   3. To  gain credibility,  we must  be assured, first, that the
witness has  not been mistaken nor deceived. To be assured as far
as possible  on this subject, it is proper to consider the nature
and quality  of the  facts proved;  the quality and person of the
witness;   the testimony  in itself;   and to compare it with the
depositions of  other witnesses  on the  subject, and  with known
facts. Secondly,  we must  be satisfied  that he does not wish to
deceive: there are strong assurances of this, when the witness is
under oath,  is a man of integrity, and disinterested. Vide Arch.
Civ. Pl. 444;  5 Com. Dig. 449;  8 Watts, R. 227;  Competency.

  CREDIBLE WITNESS. A credible witness is one who is competent to
give evidence, and is worthy of belief. 5 Mass. 219 17 Pick. 134;
2 Curt.  Ecc. R.  336. In  deciding upon  the  credibility  of  a


          Bouvier's Law Dictionary : C3 : Page 41 of 56


witness, it is always pertinent to consider whether he is capable
of knowing  the thing  thoroughly about  which he  testifies.  2.
Whether he was actually present at the transaction. 3. Whether he
paid, sufficient attention to qualify himself to be a reporter of
it;   and 4.  Whether he  honestly relates the affair fully as he
knows it,  without any  purpose or desire to deceive, or suppress
or add to the truth.

   2. In  some of  the  states,  as  Delaware,  Illinois,  Maine,
Maryland, Rhode  Island, Vermont,  and Virginia,  wills  must  be
attested by credible witnesses. See Attesting Witness;  Competent
Witness;   Disinterested Witness;    Respectable  Witness;    and
Witness.

   CREDIT, common  law, contracts.  The ability to borrow, on the
opinion conceived  by the  lender that  he will  be repaid.  This
definition includes the effect and the immediate cause of credit.
The debt  due in  consequence of such a contract is also called a
credit;  as, administrator of an the goods, chattels, effects and
credits, &c.

   2. The  time extended  for the  payment of goods sold, is also
called a credit;  as, the goods were sold at six months credit.

  3. In commercial law, credit is understood as opposed to debit;
credit is what is due to a merchant, debit, what is due by him

   4. According  to M.  Duvergier,  credit  also  signifies  that
influence acquired  by intrigue  connected  with  certain  social
positions. 20  Toull. n.  19. This last species of credit is not,
of such  value as to be the object of commerce. Vide generally, 5
Taunt. R. 338.

   CREDITOR, persons, contracts. A creditor is he who has a right
to require the fulfilment of an obligation. or contract.

  2. Creditors may;  be divided into personal and real.

   3. The  former are  so called, because their claims are mainly
against the  person, who  can reach the property of their debtors
only by;   virtue  of the general rule by which he who has become
personally obligated,  is bound  to fulfil  his engagements, with
all his  property acquired  and to be acquired, Which is a common
guaranty for all his creditors.

   4. The  latter are called real, because they have mortgages or
other securities binding on the real estates of their debtors.

  5. It is proper to state that personal creditors may be divided
into two  classes first,  those who  have  a  right  on  all  the
property of their debtors, without considering the origin, or the
nature of  their claims;   secondly, those who, in consequence of
some provision  of law, are entitled to some special prerogative,
either in the manner of recovery, or in the rank they are to hold
among creditors;    these  are  entitled  to  preference.  As  an
example, may  be mentioned  the case  of the  United State;  when
they are  creditors, they  have always  a preforenee  in case  of
insolvent estates.


          Bouvier's Law Dictionary : C3 : Page 42 of 56


   6. A  creditor sometimes becomes so, unknown to his debtor, as
is the case when the former receives an assignment of commercial;
paper, the  title to  recover which  may be  conveyed  either  by
endorsement, or,  in some cases, by mere delivery. But in general
it is essential there should be a privity of contract between the
parties. Vide,  generally, 7  Vin. Ab.  42;   3 Com. Dig. 343;  8
Com. Dig.  388;   1 Supp.  to Ves. Jr. 302 2 Sup. to Ves. Jr. 305
Code, 7, 72, 6;  Id. 8, 18;  Dig 42, 6, 17;  Nov. 97 ch. t3 Bouv.
Inst. Index, h. t.

   CREEK, mar.  law. Creeks  are of two kinds, viz. creeks of the
sea and  creeks of ports. The former sorts are such little inlets
of the  sea whether  within the  precinct or extent of a, port or
without, which  are narrow  rittl6 passages@  and-have  shore  on
either side  of them.  The latter, Viz. breeks of ports, are by a
kind of  civil denomination  such. They  are  such,  that  though
possibly for their extent and. situation they might be ports, yet
they are  either members  of or  dependent upon  other ports.  In
England it  began thus:  the king,  could not conveniently have a
customer and comptroller in every port or haven. But these custom
officers were  fixed at  some eminent  port;    and  the  smaller
adjacent ports  became by  that means  creeks, or  appendants. of
that where  these custom  officers were placed. 1 Chit. Com. Law,
726;   Hale's Tract.  de Portibus Maris, part 2, c. 1, vol. 1, p.
46;  Com. Dig. Navigation, C;  Callis, 34.

   2. In  a more  popular sense,  creek signifies a small stream,
less than a river. 12 Pick. R. 184,

   CRETION, civil  law.. The  acceptance of a succession. Cretion
was an act made before a magistrate, by which an instituted heir,
who was  required to  accept of  the succession  within a certain
time, declares  within that time that he accepted the suecession.
Clef cles Lois Rom. h. t.

   2. Cretion  is also  used to signify the term during which the
heir is  allowed to  make his election to take or not to take the
inheritance. It is so called, because the heir is allowed to see,
cernere, examine, and decide. Gaii, lust. lib. 2, §164.

   CREW. Those  persons who  are employed  in the navigation of a
vessel.

   2. A  vessel to  be seaworthy  must have  a sufficient crew. 1
Caines, R. 32;  1 John. R. 184.

   3. In  general, the master or captain (q.v.) has the selection
of the  crew. Vide  Muster  roll;    Seaman;    Ship;    Shipping
articles.

   CRIB-BITING. A  defect in horses, which consists in biting the
crib while  in the stable. This is not, considered as a breach of
general warranty of soundness. Holt's Cas. 630.

  CRIER. An inferior officer of a court, whose duty it is to open


          Bouvier's Law Dictionary : C3 : Page 43 of 56


and adjourn  the court,  when ordered  by the  judges;   to  make
proclamations and  obey the  directions of  the court in anything
which concerns the administration of juustice.

   CRIME. A  crime is an offence against a public law. This word,
in its  most general signification, comprehends all offences but,
in its  limited sense,  it is  confined to felony. 1 Chitty, Gen.
Pr. 14.

   2. The  term misdemeanor  includes every  offence inferior  to
felony, but  punishable by indictment or by-particular prescribed
proceedings.

   3. The  term offence,  also, may  be considered as, having the
same meaning, but is usually, by itself, understood to be a crime
not indictable  but punishable,  summarily, or  by the forfeiture
of, a penalty. Burn's Just. Misdemeanor.

   4. Crimes  are defined  and punished  by statutes  and by  the
common law.  Most common  law offences  are as well known, and as
precisely ascertained,  as those  which are  defined by statutes;
yet, from the difficulty of exactly defining and describing every
act  which  ought  to  be  punished,  the  vital  and  preserving
principle has  been adopted,  that all immoral acts which tend to
the prejudice  of the  community  are  punishable  by  courts  of
justice. 2 Swift's Dig.

   5. Crimes  are mala  in se,  or bad  in themselves;  and these
include. all  offences against  the moral  law;  or they are mala
prohibita, bad because prohibited, as being against sound policy;
which, unless  prohibited,  would  be  innocent  or  indifferent.
Crimes may be classed into such as affect:

   6.- 1. Religion and public worship: viz. blasphemy, disturbing
public worship.

  7. - 2. The sovereign power: treason, misprision of treason.

  8. - 3. The current coin: as counterfeiting or impairing it.

   9. -  4. Public  justice: 1.  Bribery of  judges or jurors, or
receiving the  bribe. 2.  Perjury. 3. Prison breaking. 4. Rescue.
5.  Barratry.   6.  Maintenance.  7.  Champerty.  8.  Compounding
felonies.  9.   Misprision  of   felonies.  10.  6ppression.  11.
Extortion. 12. Suppressing evidence. 13. Negligence or misconduct
in  inferior   officers.  14.   Obstructing  legal  process.  15.
Embracery.

  10. - 5. Public peace. 1. Challenges to fight a duel. 2. Riots,
routs and unlawful  assemblies. 3. Affrays. 4. Libels.

   11.  -  6.  Public  trade.  1.  Cheats.  2.  Forestalling.  S.
Regrating. 4. Engross-
ing. 5. Monopolies.

   12. -  7. Chastity.  1. Sodomy.  2. Adultery.  3.  Incest.  4.
Bigamy. 5. Fornication.


          Bouvier's Law Dictionary : C3 : Page 44 of 56


   13. -  8.  Decency  and  morality.  1.  Public  indecency.  2.
Drunkenness. 3. Violatiug the grave.

   14. -  9. Public  police and  economy. 1. Common nuisances. 2.
Keeping  disorderly   houses  and   bawdy  houses.  3.  Idleness,
vagrancy, and beggary.

  15. - 10. Public. policy. 1. Gambling. 2. Illegal lotteries.

   16. -  11. Individuals.  1. Homicide,  which  is  justifiable,
excusable or felonious.

   2. Mayhem.  3. Rape.  4. Poisoning,  with intent to murder. 5.
Administering drugs  to  a  woman  quick  with  child  to  cause,
miscarriage. 6. Concealing death of bastard child.

   7. Assault  and battery, which is either simple or with intent
to commit some other crime. 8. kidnapping. 9. False imprisonment.
10. Abduction.

   17. - 12. Private property. 1. Burglary. 2. Arson. 3. Robbery.
4., Forgery.
Counterfeiting. 6.  Larceny. 7.  Receiving stolen  goods, knowing
them to have been stolen, or theft-bote. 8. Malicious mischief.

  18. - 13. The public, individuals, or their property, according
to the intent of the criminal. 1. Conspiracy.

   CRIME AGAINST  NATURE. Sodomy.  It is  a crime  not fit  to be
named;   peccatum horribile,  inter christianos non nominandum. 4
Bl. Com. 214. See Sodomy.

   CRIMEN FALSI, civil law, crime. It is a fraudulent alteration,
or forgery,  to conceal  or alter  the truth, to the prejudice of
another. This  crime may,  be committed in three ways, namely: 1.
By forgery.  2. By  false declarations or false oath, perjury. 3.
By acts;   as,  by dealing  with false   weights and measures, by
altering the  current coin,  by making  false keys, and the like.
Vide Dig.  48, 10, 22;  Dig. 34, 8 2;  Code, lib. 9, t. 22, 1. 2,
5, 9. 11, 16,
17, 23,  and 24;   Merl.  Rep. h.  t.;   1 Bro. Civ. Law, 426;  1
Phil. Ev. 26;  2 Stark. Ev. 715.

   2. What  is understood by this, term in the common law, is not
very clearly defined. Peake's Ev. 133;  1 Phil. Ev. 24;  2 Stark.
Ev. 715.  It extends to forgery, perjury, subornation of perjury,
suppression of testimony by bribery, and conspiracy to convict of
perjury. See  12 Mod.  209;   2 S. & R. 552;  1 Greenl. Ev. §373;
and article Faux.

   CRIMINAL. Relating  to, or having the character of crime;  as,
criminal law,  criminal conversation,  &c. It  also  signifies  a
person convicted of a crime.

   CRIMINAL CONVERSATION,  crim.  law.  This  phrase  is  usually
employed to denote the crime of adultery. It is abbreviated crim.
con. Bac. Ab. Marriage, E 2;  4Blackf. R. 157.


          Bouvier's Law Dictionary : C3 : Page 45 of 56


  2. The remedy for criminal conversation is, by an action on the
case for  damages. That  the plaintiff  connived, or assented to,
his wife's  infidelity, or that he prostituted her for gain, is a
complete answer to the action. See Connivance. But the facts that
the wife's  character for  chastity was  bad before the plaintiff
married her;   that  he lived  with her  after  he  knew  of  the
criminal intimacy  with the  defendant;   that he had connived at
her intimacy  with other  men;, or  that the  plaintiff had  been
false to  his wife,  only go in mitigation of damages. 4 N. Hamp.
R. 501.

  3. The wife cannot maintain an action for criminal conversation
with her hushand;  and for this, among other reasons, because her
hushand, who  is particeps  criminis, must  be joined with her as
plaintiff.

  CRIMINAL LETTERS. An instrument in Scotland, which contains the
charges against  a person  accused of  a crime.  Criminal letters
differ from  an indictment,  in that  the former are not, like an
indictment, the  mere statement of the prosecutor, but sanctioned
by a judge. Burt. Man. Pub. L. 301, 302.

  CRIMINALITER. Criminally;  opposed to civiliter, civilly.

   2. When  a person commits a wrong to the injury of another, he
is answerable  for it  civiliter,  whatever  may  have  been  his
intent;   but, unless  his intent  has been  unlawful the  is not
answerable criminaliter. 1 East, 104.

   TO CRIMINATE. To accuse of a crime;  to admit having committed
a crime or misdemeanor.

   2. It  is a rule, that a witness cannot be compelled to answer
any question  which has a tendency to expose him to a penalty, or
to any kind of punishment, or to a criminal charge. 3 Bouv. Inst.
n. 3209-12;  4 St. Tr. 6;  10 How. St. Tr.@ 1096;  6 St. Tr. 649;
16 How.  St. Tr.  1149;   2 DougI. R. 593;  2 Ld. Raym. 1088;  24
How. St.  Tr. 720;   16  Ves. jr.  242;  2 Swanst. Ch. R. 216;  1
Cranch. R.  144;   2 Yerg.  R. 110  5 Day,  Rep. 260;  I Carr., &
Payne, 11 2 Nott & M'C. 13;  6 Cowen, Rep. 254;  2 Peak. N. P. C.
106;  1 John. R. 498;  12 S. & R. 284;  8 Wend. 598.

   3. An  accomplice,  admitted  to  give  evidence  against  his
associates in  guilt, is bound to make a full and fair confession
of  the   whole  truth   respecting  the  subject-matter  of  the
prosecution;   but he  is not bound to answer with respect to his
share in  other offences,  in which he was not concerned with the
prisoner. 9  Cowen, R. 721, note (a);  2 Carr. & Payne, 411. Vide
Disgrace,;  Witness;

   CRIMINATOIN. The act by which a party accused, is proved to be
guilty.

   2. It is a rule, founded in common sense, that no one is bound


          Bouvier's Law Dictionary : C3 : Page 46 of 56


to criminate  himself. A witness may refuse to answer a question,
when  the   answer  would  criminate  him,  and  subject  him  to
punishment. And  a party in equity is not bound to answer a bill,
when the  answer would  form a step in the prosecution. Coop. Eq.
Pl. 204;   Mitf.  Eq. Pl.  by Jeremy, 194;  Story, Eq,. Pl. §591;
14 Ves. 59.

   CRITICISM.   The art  of judging  skilfully of  the merits  or
beauties,  defects   or  faults   of  a  literary  or  scientific
performance, or  of a  production of  art;  when the criticism is
reduced to writing, the writing itself is called a criticism.

   2. Liberty  of criticism  must be  allowed, or  there would be
neither purity  of taste  nor  of  morals.  Fair  discussion,  is
essentially necessary to, the truth of history and advancement of
scienc. That publication therefore, is not a libel, which has for
its object, not to injure the reputation of an individual, but to
correct  misrepresentations   of  facts,  to  refute  sophistical
reasoning, to  expose a  vicious  taste  for  literature,  or  to
censure what  is hostile  to morality. Campb. R. 351-2.  As every
man who  publishes a  book commits himself to the judgment of the
public,  any  one  may  comment  on  his  performance.    If  the
commentator does  not step  aside from  the  work,  or  introduce
fiction for  the purpose of condemnation, he exercises a fair and
legitimate right.  And the  critic does  a good  service  to  the
public who  writes down  any vapid or useless publication such as
ought never  to have  appeared;   and, although  the  author  may
suffer a  loss from  it, the  law does  nto conisder such loss an
injury;   because it  is a loss which the party ought to sustain.
It is  the loss  of fame  and  profit,  to  which  he  was  never
entitled. 1 Campb. R. 358, n. See 1 Esp. N. P. Cas. 28;  2 Stark.
Cas. 73;   4  Bing. N. S. 92;  S. C. 3 Scott, 340;. 1 M. & M. 44;
1 M. & M. 187;  Cooke on Def. 52.

   CROFT, obsolete. A little close adjioning to a dwelling-house,
and enclosed  for pasture  or  arable,  or  any  particular  use.
Jacob's Law Dict.

  CROP. This word is nearly synonymous with emblements. (q. v.),

   2. As  between the landlord and tenant, the former has a lien;
in some of -the states, upon the crop for the rent, for a limited
time, and,  if sold  on an  execution  against  the  tenant,  the
purchaser succeds  to the  liability of  the tenant, for rent and
good hushandry,  and the  crop is  still liable to be distrained.
Tenn. St.  1825, c.  21;  Misso. St. 377;  Del. St. 1829, 366;  1
N. J. R. C. 187;  Atk. Dig. 357;  1 N. Y. R. S. 746;  1 Ky. R. L.
639;   5 Watts,  R. 134;   41  Griff. Reg. 671, 404;  1 Hill. Ab.
148, 9;  5 Penn. St. R. 211.

  3. A crop is not considered is a part of the real estate, so as
to make a sale of it void, when the contract has not been reduced
to writing,  within the  statute of frauds. 11 East, 362;  2 M. &
S. 205;   5  B. & C. 829;  10 Ad. & El. 753;  9 B. & C. 561;  but
see 9 M. & W. 501.

   4. If  a hushand sow land and die, and the land which was sown


          Bouvier's Law Dictionary : C3 : Page 47 of 56


is assigned  to the  wife for her dower, she shall have the corn,
and not the executors of the hushand. Inst. 81.

   CROPPER, contracts.  One who,  having no interest in the land,
works it  in consideration of receiving a portion of the crop for
his labor. 2 Rawle, R. 12.

   CROSS. contracts.  A mark  made by  persons who  are unable to
write, instead of their names.

   2. When properly attested, and proved to have been made by the
party whose  name is  written with  the  mark,  it  is  generally
admitted as evidence of the party's signature.

   CROSS ACTION.  An action  by a defendant in an action, against
the plaiutiff  in the same action, upon the same contract, or for
the same  tort;  as, if Peter bring an action of trespass against
Paul, and  Paul bring  another action  of trespass against Peter,
the subject  of the  dispute being  an assault and battery, it is
evident that  Paul could  not set  off the assault committed upon
him by Peter, in the action which Peter, had brought against him;
therefore the cross action became necessary.

   CROSS BILLS, practice. When an individual prosecutes a bill of
indictment against  another, and  hte defendant  procures another
bill to be found against the first prosecutor, the bills so found
by the  grand jury are called corss bills. The most usually occur
in cases of assault and battery.

   2. In  chancery practice it is not unusual for parties to file
cross bills. Vide Bill, cross.

   CROSS-EXAMINATION, practice.  The examination of a witness, by
the party who did not call him, upon matters to which he has been
examined in chief.

   2. Every party has a right to cross-examine a witness produced
by his  antagonist, in  order to test whether the witness has the
knowledge of the things he testifies and if, upon examination, it
is found  that the witness had the means and ability to ascertain
the facts about which he testifies, then his memory, his motives,
everything may be scrutinized by the cross- examination.

   3. In  cross-examinations a  great latitude  is allowed in the
mode of putting
questions, and  the counsel  may put  leading questions.  (q. v.)
Vide further  on this subject, and for some rules which limit the
abuse of this right, 1 Stark. Ev,. 96;  1 Phil. Ev. 210;  6 Watts
& Serg. 75.

   4. The  object of a cross-examination is to sift the evidence,
and try  the credibility  of a  witness who  has been  called and
given evidence  in chief.  It is one of the principal tests which
the law  has devised  for the  ascertainment of  truth, and it is
certainly  one  of  the  most  efficacious.  By  this  means  the
situation of  the witness,  with respect  to the  parties and the
subject  of   litigation,  his   interest,   his   motives,   his


          Bouvier's Law Dictionary : C3 : Page 48 of 56


inclinations and his prejudices, his means of obtaining a correct
and certain  knowledge of  the facts  to which  he testifies  the
manner in which he has used those means, his powers of discerning
the facts in the first instance, and of his capacity in retaining
and describing  them, are fully investigated and ascertained. The
witness, however  artful he  may be, will seldom be able to elude
the keen  perception of  an intelligent  court  or  jury,  unless
indeed his  story be  founded on  truth. When  false, he  will be
liable to detection at every step.  1 Stark. Ev. 96;  1 Phil. Ev.
227;  Fortese. Rep. Pref. 2 to 4;  Vaugh. R. 143.

   5. In  order to  entitle a  party to  a cross-examination, the
witness must  have been  sworn and  examined;   for, even  if the
witness be  asked a  question in chief, yet if he mahe no answer,
the opponent  has no  right to cross-examine. 1 Cr. M. & Ros. 95;
1 16  S. &  R. 77;  Rosc. Cr. Ev. 128;  3 Car. & P. 16;  S. C. 14
E. C. L. Rep. 189;  3 Bouv. Inst. n. 3217. Formerly, however, the
rule seems to have been different. 1 Phil. Ev. 211.

   6. A cross-examination of a witness is not always necessary or
advisable. A  witness tells  the truth wholly or partially, or he
tells  a   falsebood.  If   he   tells   the   whole   truth,   a
cross-examination may  have the effect of rendering his testimony
more circumstantial,  and impressing  the jury  with  a  stronger
opinion of  its truth.  If he tells only a part of the truth, and
the part  omitted is  favorable to  the  client  of  the  counsel
cross-exaimining, he  should direct  the attention of the witness
to the matters omitted. If the testimony of the witness be false,
the whole  force of  the cross-examination  should be directed to
his credibility.  This is done by questioning him as to his means
of knowledge, his disinterestedness, and other matters calculated
to show  a want  of integrity  or veracity, if there is reason to
believe the  witness prejudiced,  partial, or wilfully dishonest.
Arch. Crim. Pl. 111. See Credible Witness.

   CROWN. A  covering for  the  head,  commonly  used  by  kings;
figuratively, it  signifies royal  authority.  By  pleas  of  the
crown, are understood criminal actions.

   CRUELTY. This word has different meanings, as it is applicd to
different things.  Cruelty may  be, 1.  From hushand  towards the
wife, or  vice versa.  2. From superior towards inferior, 3. From
master towards  slave. 4.  To animals.  These will  be separately
considered.

   2. -  1. Between hushand and wife, those acts which affect the
life, the health, or even the comfort of the party aggrieved, and
give  a  reasonable  apprehension  of  bodily  hurt,  are  called
cruelty. What merely wounds the feelings is seldom admitted to be
cruelty, unless the act be accompanied with bodily injury, either
actual  or  menaced.  Mere  austerity  of  temper,  petulance  of
manners, rudeness  of language,  a want  of civil  attention  and
accommodation, even  occasional  sallies  of  passion,  will  not
amount to  legal cruelty;   17 Conn. 189;  a fortiori, the denial
of little  indulgences and  particular accommodations,  which the
delicacy of  the world is apt to number among its necessaries, is
not cruelty. The negative descriptions of cruelty are perhaps the


          Bouvier's Law Dictionary : C3 : Page 49 of 56


best, under  the infinite  variety of  cases that  may occur,  by
showing what  is not  cruelty. 1 Hagg. R. 35;  S. C. 4 Eccles. R.
311, 312;  2 Hagg. Suppl. 1;  S. C. 4 Eccles. R. 238;  1 McCord's
Ch. R.  205;   2 J.  J. Marsh.  R. 324;   2  Chit. Pr.  461, 489;
Poynt. on  Mar. & Div. c. 15, p. 208;  Shelf. on Mar. & Div. 425;
1 Hagg.  Cons. R.  37, 458;   2 Ragg. Cons. Rep. 154;  1 Phillim.
111, 132;   8 N H. Rep. 307;  3 Mass. 321;  4 Mass. 487. It is to
be remarked that exhibitions of passion and gusts of anger, which
would be  sufficient  to  create  irreconcilable  hatred  between
persons educated  and trained  to respect  each other's feelings,
would, with  persons of  coarse manners  and habits,  have but  a
momentary effect. An act which towards the latter would cause but
a momentary  difference, would  with  the  former,  be  excessive
cruelty. 1 Briand Med. Leg. 1 ere part. c. 2, art. 3.

   3. -  2. Cruelty towards weak and helpless persons takes place
where a  party bound  to provide  for and  protect  them,  either
abuses them  by whipping  them unnecessarily, or by neglecting to
provide for them those necessaries which their helpless condition
requires. To  expose a  person of  tender years,  under a party's
care, to  the inclemency  of the  weather;   2 Campb. 650;  or to
keep such  a  child,  unable  to  provide  for  himself,  without
adequate food;   1  Leach, 137;   Russ.  & Ry.  20 or an overseer
neglecting to  provide food  and medical  care to a pauper having
urgent and  immediate occasion for them;  Russ. & Ry. 46, 47, 48;
are examples of this species of cruelty.

   4. -  3. By  the civil  code of  Louisiana, art.  192,  it  is
enacted, that  when  the  master  shall  be  convicted  of  cruel
treatment of  his slave,  the judge  may pronounce,  besides  the
penalty established  for such cases, that the slave shall be sold
at public  auction, in order to place him out of the reach of the
power which his master has abused.

   5. -  4. Cruelty  to  animals  is  an  indictable  offence.  A
defendant was  convicted of a misdemeanor for tying the tongue of
a calf  so near  the root  as to prevent its sucking, in order to
sell the  cow at  a greater  price, by  giving to  her udder  the
appearance of being full of milk, while affording the calf all he
needed. 6  Rogers, City  Hall Rec.  62. A man may be indicted for
cruelly beating his horse. 3 Rogers, City Rec. 191.

  CRUISE, mar. law. A voyage or expedition in quest of vessels or
fleets of  the enemy  which may  be expected  to sail through any
particular track  of the sea, at a certain season of the year the
region in which these cruises are performed is usually termed the
rendezvous or cruising latitude.

   2. When  the  ships  employed  for  this  purpose,  which  are
accordingly  called   cruisers,  have  arrived  at  the  destined
station, they  traverse the sea, backwards and forwards, under an
easy sail,  and within  a limited space, conjectured to be in the
track of their expected adversaries. Wesk. Ins. h. t.;  Lex Merc.
Rediv. 271,  284;   Dougl. 11.  509;  Park. Ins. 58;  Marsh. Ins.
196, 199, 520;  2 Gallis. 268.

   CRY DE PAYS, OR CRI DE PAIS. Literally, cry of the country. In


          Bouvier's Law Dictionary : C3 : Page 50 of 56


England, when  a felony  has been  committed, hue and cry (q. v.)
may be raised by the country, in the absence of the constable. It
is then cry de pays. 2 Hale, P. C. 100.

  CRYER, practice. An officer in a court whose duty it is to make
various proclamations ordered by the court.

   CUEILLETTE. A  term in French maritime law. Affreightment of a
vessel a cueillette, is a contract by which the captain obligates
himself to  receive a  partial cargo, only upon condition that he
shall succeed  in completing  his cargo  by other partial lading;
that is, by gathering it (en recueillant) wherever he may be able
to find  it. If  he  fails  to  collect  a  cargo,  such  partial
charterin is void. Code de Com. par M. Fournel, art. 286, n.

   CUI ANTE  DIVORTIUM. The  name of  an ancient  writ, which was
issued in  favor of a woman divorced from her hushand, to recover
the lands  and tenements which she had in fee simple, or in tail,
or for  life, from  him to whom her hushand alienated them during
the marriage,  when she  could not gainsay it. F. N. B. 240. Vide
Sur cui ante divortium.

   CUI IN VITA. The name of a writ of entry for a widow against a
person to  whom the  hushand had,  in his  lifetime, aliened  the
lands of  the wife. F. N. B. 193. This writ was founded sometimes
on the stat. 13 Ed. 1. c. 3, and sometimes on the common law. The
object of  this statute,  was to  enable  the  wife  to  avoid  a
judgment to  recover her  land which  had been  rendered  on  the
default or  confession of  her hushand.  It is  now of  no use in
England, because  the stat.  32 H. VIII. c. 28, §6, provides that
no act  of the  hushand, whether fine, feoffment, or other act of
the hushand  during coverture,  shall prejudice  the  wife.  Both
these statutes  are reported  as in force in Pennsylvania. 3 Bin.
Appx. See  Booth on  Real Actions,  186;   6 Rep.  8, 9, Forrers'
Case. Still, that part of the stat. 13 Ed. I. c. 8, which relates
to the  pleadings and  evidence iu  such cases is important if it
can be  enforced in  the modern  action of  ejectment, viz:  that
which requires  the  tenant  of  the  lands  to  show  his  right
according to  the form  of the  writ  he  sued  out  against  the
hushand. See Report of the Commissioners to revise the Civil Code
of Pennsylvania, Jan. 16, 1835, pp. 90, 91.

   CUL  DE  SAC.  This  is  a  French  phrase,  which  signifies,
literally, the  bottom of  a bag, and, figuratively, a street not
open at  both ends.  It seems  not to be settled whether a cul de
sac is to be considered a highway. See 1 Campb. R. 260;  11 East,
R. 376, note;  5 Taunt. R. 137;  5 B. & Ald. 456;  Hawk. P. C. b.
1, c.  76, s.  1 Dig.  lib. 50, tit. 16, l. 43;  Dig. lib. 43, t.
12, l. §13;  Dig. lib. 47, tit. 10, 1. 15, §7.

   CULPA. A fault committed without fraud, and this distinguishes
it from dolus, which is a trick to deceive. See Dolus.

  CULPRIT, crim. law. When a prisoner is arraigned, and he pleads
not guilty,  in the English practice, the clerk, who arraigns him
on behalf  of the crown, replies that the prisoner is guilty, and
that he  is ready  to prove  the accusation;  this is done by two
monosyllables, cul. prit. Vide Abbreviations;  4 Bl. Com. 339;  1
Chit. Cr. Law, 416.


          Bouvier's Law Dictionary : C3 : Page 51 of 56


   CUM PERTINENTIS. With the appurtenances. See Appurtenances.

  CUM ONERE. This term is usually employed to show that something
is taken, subject to a charge or burden.

   CUM TESTAMENTO  ANNEXO. With the testament or will annexed. It
often happens  that the  deceased,  although  he  makes  a  will,
appoints no  executor, or  else the appointment fails;  in either
of which  events he is said to die quasi intestatus. 2 Inst. 397.
The appointment  of an  executor  fails,  1st.  When  the  person
appointed refuses  to act.  2d. When  the person  appointed  dies
before the  testator, or  before he has proved the will, or when,
from any  other legal  cause, he is incapable of acting. 3d. When
the  executor   dies  intestate,  (and  in  some  places,  as  in
Pennsylvania, whether  he die testate or intestate,) after having
proved the  will, but before he has administered all the personal
estate of  the deceased.  In all  these cases, as well as when no
executor  has  been  appointed,  administration,  with  the  will
annexed, must be granted by the proper officer. In the case where
the goods  are, not  all administered  before the  death  of  the
executor, the  administration is also called an administration de
bonis non.

   2. The  office of such an an administrator differs little from
that of an executor. Vide Com. Dig. Administration;  Will. Ex. p.
1, b.  5, c.  3, s. 1;  2 Bl. Com. 504-5;  11 Vin. Ab. 78;  Toll.
92 Gord. Law of Deced. 98.

   CUMULATIVE. Forming  a heap;    additional;    as,  cumulative
evidence, or  that which  goes to  prove the same point which has
been  established   by  other  evidence.  Cumulative  legacy,  or
accumulative legacy,  is a  second bequest,  given  by  the  same
testator to  the same legatee. 2 Rop. Log. 19,. See 1 Saund. 134,
n. 4;  Remedy.

   CUMULATIVE LEGACY.  Vide Legacy  accumulative;  and 8 Vin. Ab.
308 1 Supp. to Ves. jr. 133, 282, 332.

   CURATE, eccl.  Iaw. One  who represents  the  incumbent  of  a
church, person,  or 20  vicar, and  tades care of the church, and
performs divine service in his stead.

  CURATOR, persons, contracts. One who has been legally appointed
to take  care of  the interests  of one  who, on  account of  his
youth, or  defect of  his understanding, or for some other cause,
is unable to attend to them himself.

   2. There are curators ad bona, of property, who administer the
estate of  a minor, take care of his person, and intervene in all
his contracts;  curators ad litem, of suits, who assist the minor
in courts  of justice,  and act as curator ad bona in cases where
the interests  of the curator are opposed to the interests of the
minor. Civ.  Code of  Louis. art.  357 to  366.  There  are  also


          Bouvier's Law Dictionary : C3 : Page 52 of 56


curators  of   insane  persons  Id.  art.  31;    and  of  vacant
successions and absent heirs. Id. art. 1105 to 1125.

   3. The  term curator is usually employed in the civil law, for
that of guardian.

   CURATORSHIP, offices,  contracts, in  the civil law. The power
given by  authority of law, to one or more persons, to administer
the property  of an  individual who is unable to take care of his
owu estate  and affairs, either on account of his absence without
an authorized  agent, or  in consequence  of his  prodigality, or
want of mind. Poth. Tr. des Personnes, t. 6, s. 5. As to the laws
of Louisiana, which authorize a curatorship, vide Civ. Code, art.
31, 50, et seq. 357, et seq.;  382, 1105, et seq.

   2. Curatorship  differs from  tutorship, (q. v.) in this, that
the latter  is instituted  for the  protection of property in the
first place,  and, secondly,  of the person;  while the former is
intended to  protect,  first,  the  person,  and,  secondly,  the
property. 1 Lecons Elem. du Droit Civ. Rom. 241.

   CURATRIX. A  woman who  has been  appointed to  the office  of
curator.

   CURE. A restoration to health.

   2. A  person who  had quitted the habit of drunkenness for the
space of  nine months,  in consequece  of medicines he had taken,
and who  had lost  his appetite  for ardent  spirits, was held to
have been cured. 7 Yerg. R. 146.

   3. In a figurative sense, to cure is to remedy any defect; as,
an informal statement of the  plaintiff's cause of  action in his
declaration  is cured  by verdict,  provided  it be substantially
stated.

  CURFEW.  The name of a law, established during the reign of the
English king,  William, the  conquerer, by  which the people were
commanded to  dispense with  fire and  candle at eight o'clock at
night.

   It was  abolished in  the reign of Henry I., but afterwards it
signified the  time at  which the curfew formerly took place. The
word curfew is derived, probably, from couvre few, or cover fire.
4 Bl. Com. 419, 420.

CURIA. A court of justice.

CURIA CLAUDENDA,  WRIT DE,  Eng. law. The name of a writ, used to
compel a party to enclose his land. F. N. B. 297.

   CURIA ADVISARE  VULT, practice.  The court  will consider  the
matter. This  entry is  made on the record when the court wish to
take time  to consider  of  a  case  before  they  give  a  final
judgment, which is made by an abbreviation, cur. ad vult, for the
purpose of marking the continuance. In the technical sense, it is
a continuance of the cause to another term.

   CURIA REGIS. An English court, which assumed this name, during


          Bouvier's Law Dictionary : C3 : Page 53 of 56


the reign of Henry II. It was Curia or Aula Regis, because it was
held in  the g  reat hall  of the  king's palace;   and where the
king,  for   some  time,  administered  justice  in  person.  But
afterwards, the judicial power was more properly entrusted to the
king's  judges.   The  judges   who  sat   in  this   court  were
distinguished by  the name  of justices, or justiciaries. Besides
these, the  chief justiciary,  the stewart  of all  England,  the
chancellor, the chamberlain, and the treasurer, also took part in
the judicial proceedings of this court.

   CURIALITY, Scotch  law. The same as courtesy. (q. v.) 1 Bell's
Com. 61.

   CURRENCY. The  money which passes, at a fixed value, from hand
to hand;  money which is authorized by law.

   2. By  art. 1,  s. 8,  the Constitution  of the  United States
authorizes congress  "to coin  money, and  to regulate  the value
thereof." Changes  in the  currency ought  not to be made but for
the most  urgent reason,  as they unsettle commerce, both at home
and abroad.  Suppose Peter  contracts to  pay Paul  one  thousand
dollars in  six months  - the  dollar of  a certain  fineness  of
silver, weighing  one hundred  and twelve and a half grains - and
afterwards, before the money becomes due, the value of the dollar
is changed, and it weighs now but fifty-six and a quarter grains;
will one  thousand of the new dollars pay the old debt? Different
opinion may  be entertained, but it seems that such payment would
be complete;   because,  1. The  creditor is bound to receive the
public currency;   and, 2. He is bound to receive it at its legal
value. 6 Duverg. n. 174.

   CURRENT, merc.  law. A term used to express present time;  the
current month;   i.e.  the present  month. Price  current, is the
ordinary price at the time spoken of. A printed paper, containing
such prices, is also called a price current.

   2. Current,  in another sense, signifies that which is readily
received;  as, current money.

   CURSITOR BARON,  Eng. law.  An officer  of the  court  of  the
exchequer, who is appointed by patent under the great seal, to be
one of the barons of the exchequer.

   CURTESY, or  COURTESY, Scotch law. A life-rent given by law to
the surviving  hushand, of  all his  wife's heritage of which she
died infeft, if there was a child of the marriage born alive. The
child born  of the marriage must be the mother's heir. If she had
a child  by a  former marriage,  who is to succeed to her estate,
the hushand  has no  right to  the curtesy  while such  child  is
alive;   so that  the curtesy  is due  to the  hushand rather  as
father to the heir, than as hushand to an heiress, conformable to
the Roman law, which gives to the father the usufruct of what the
child succeeds  to by  the mother. Ersk. Pr. L. Scot. B. 2, t. 9,
s. 30. Vide Estate by the curtesy.

   CURTILAGE, estates.  The open  space situated  within a common
enclosure belonging  to a  dwelling-house. Vide 2 Roll, Ab. 1, l.


          Bouvier's Law Dictionary : C3 : Page 54 of 56


30;   Com. dig. Grant, E 7, E 9;  Russ. & Ry. 360;  Id. 334, 357;
Ry & Mood. 13;  2 Leach, 913;  2 Bos. & Pull. 508;  2 East, P. C.
494;  Russ. & Ry. 170, 289, 322;  22 Eng. Com. Law R. 330;  1 Ch.
Pr. 175;  Shep. Touchs. 94.

   CUSTODY. The  detainer of  a person  by  virtue  of  a  lawful
authority. To  be in  custody, is  to be  lawfully detained under
arrest. Vide 14 Vin. Ab. 359;  3 Chit. Pr. 355. In another sense,
custody signifies having the care and possession of a thing;  as,
the chancellor  is entitled  to the  custody as the keeper of the
seal.

   CUSTOM. A usage which had acquired the force of law. It is, in
fact, a  lex loci,  which regulates  all local  or real  property
within its  limits. A  repugnancy which destroys it, must be such
as to  show it  never did  exist. 5 T. R. 414. In Pennsylvania no
customs have  the force of law but those which prevail throughout
the state. 6 Binn. 419, 20.

   2. A  custom derives  its force  from the tacit consent of the
legislature and the people, and supposes an original, actual deed
or agreement.  2 Bl.  Com. 30,  31;   1 Chit. Pr. 283. Therefore,
custom  is  the  best  interpreter  of  laws:  optima  est  legum
interpres consuetudo.  Dig. 1,  8, 37;   2  Inst. 18. It follows,
therefore, there;   can  be no  custom in  relation to  a  matter
regulated by  law. 8  M. R.  309. Law  cannot be  established  or
abrogated except  by the  sovereign will,  but this  will may  be
express or  implied and  presumed and whether it manifests itself
by word  or by a series of facts, is of little importance. When a
custom  is   public,  peaceable,   uniform,  general,  continued,
reasonable and  certain, and  has lasted "time whereof the memory
of man  runneth not  to the  contrary," it  acquires the force of
law. And  when any  doubts arise  as to the meaning of a statute,
the custom  which has  prevailed on  the subject  ought  to  have
weight in  its construction,  for the  manner in  which a law has
always been  executed is  one of  its modes  of interpretation. 4
Penn. St. Rep. 13.

   3. Customs  are general  or, particular customs. 1. By general
customs is  meant the common law itself, by which proceedings and
determinations in courts are guided.

   2. Particular  customs, are those which affect the inhabitants
of some  particular districts  only. 1  Bl. Com.  68, 74.  Vide 1
Bouv. Inst.  n. 121  Bac. Ab.  h. t.;  1 Bl. Com. 76;  2 Bl. Com.
31;   1 Lill.  Reg. 516;   7  Vin. Ab.  164;   Com. Dig.  h.  t.;
Nelson's Ab.  h. t.  the various Amer. Digs. h. t. Ayl. Pand. 15,
16;   Ayl. Pareg.  194;   Doct. Pl.  201;   3 W. C. C. R. 150;  1
Gilp. 486;   Pet.  C. C.  R. 220;  I Edw. Ch. R. 146;  1 Gall. R.
443;  3 Watts, R. 178;  1 Rep. Const. Ct. 303, 308;  1 Caines, R.
45;   15 Mass.  R. 433;  1 Hill, R. 270;  Wright, R. 573;  1 N. &
M. 176;   5  Binn. R. 287;  5 Ham. R. 436;  3 Conn. R. 9;  2 Pet.
R. 148;   6  Pet. R.  715;  6 Porter R. 123;  2 N. H. Rep. 93;  1
Hall, R.  612;   1 Harr. & Gill, 239;  1 N. S. 192;  4 L. R. 160;
7 L. R. 529;  Id. 215.

   CUSTOM OF  MERCHANTS, lex  mercatoria.  A  system  of  customs


          Bouvier's Law Dictionary : C3 : Page 55 of 56


acknowledged and  taken  notice  of  by  all  nations,  and  are,
therefore, a  part of  the general  law  of  the  land.  See  Law
merchant, and 1 Chit. Bl. 76, note 9.

   CUSTOM-HOUSE. A  place appointed  by law,  in ports  of entry,
where importers  of goods,  wares and  merchandise are  bound  to
enter the  same, in  order to pay or secure the duties or customs
due to the government.

   CUSTOMARY RIGHTS.  Rights which  are acquired  by custom. They
differ from  prescriptive rights  in this,  that the  former  are
local usages,  belonging to  all the  inhabitants of a particular
place or  district  -  the  latter  are  rights  of  individuals,
independent of  the place  of their residence. Best on Pres. §79;
Cruise, Dig. t. 31, c. 1, §7;  2 Greenl. Evi §542.

   CUSTOMS. This term is usually applied to those taxes which are
payable upon  goods and  merchandise imported or exported. Story,
Const. §949;  Bac. Ab. Smuggling.

   CUSTOS ROTULORUM, Eng. law. The principal justice of the peace
of a  county, who  is the  keeper of the records of the county. 1
Bl. Com. 349.

   TO CUT,  crim. law. To wound with an instrument having a sharp
edge. 1 Russ. on Cr. 577. Vide To Stab;  Wound.

   CY PRES,  construction. These  are  old  French  words,  which
signify "as near as."

   2. In  cases where  a perpetuity  is attempted  in a will, the
courts do  not, if  they can  avoid it, construe the devise to be
utterly void,  but expound  the will in such a manner as to carry
the testator's  intentions into  effect,  as  far  as  the  rules
respecting perpetuities  will allow;  this is called construction
cy pres.  When the  perpetuity is  attempted in  a deed,  all the
Iimitations are  totally void.  Cruise, Dig.  t. 38, c. 9, s. 34;
and vide 1 Vern. 250;  2 Ves. Jr. 380, 336, 357, 364;  3 Ves. Jr.
141, 220;   4  Ves. 13;   Com. Dig. Condition, L. 1;  1 Rop. Leg.
514;  Swinb. pt. 4, s. 7, a. 4;  Dane's Ab. Index, h. t.;  Toull.
Dr. Civ.  Fr. liv.  3, t.  3, n. 586, 595, 611;  Domat, Loix Civ.
liv. 6.  t. 2,  s. 1;   1 Supp. to Ves. Jr. 134, 259, 317;  2 Id.
316,473;   Boyle  on  Charities,  Index,  h.  t.;    Shelford  on
Mortmain, Index,  h. t.;  3 Bro. C. C. 166;  2 Bro. C. C. 492;  4
Wheat. R.  1;  S. C. 3 Peters, R. App. 481;  3 Peters, R. 99;  15
Ves., 232;  2 Sto. Eq. Jur. §1169.

   CZAR. A  title of honor which is assumed by the emperor of all
the Russias. See Autocracy.

  CZARINA. The title of the empress of Russia.

  CZAROWITZ.. The title of the eldest son of the czar and czarina
of Russia.


          Bouvier's Law Dictionary : C3 : Page 56 of 56


                             #  #  #
      


Return to Table of Contents for

Bouvier's Law Dictionary