CABALLERIA, Spanish law. A measure of land, which is different
in different provinces. Diccionario por la Real Academia. In those parts of the
United States, which formerly belonged to Spain, the caballeria is a lot of one
hundred feet front and two hundred feet deep, and equal, in all respects, to
five peonias. (q. v.) 2 White's Coll. 49; 12 Pet. 444. note. See Fanegas.
CABINET. Certain officers who taken collectively make a board;
as, the president's, cabinet, which is usually composed of the secretary of
state, secretary of the treasury, the attorney general, and some others.
2. These officers are the advisers of the president.
CADASTRE. A term derived from the French, which has been adopted
in Louisiana, and which signifies the official statement of the quantity and
value of real property in any district, made for the purpose of justly
apportioning the taxes payable on such property. 3 Am. St. Pap. 679; 12 Pet.
CADET. A younger brother, one trained up for the army or
CADI. The name of a civil magistrate among the Turks.
CALENDER. An almanac. Julius Caesar ordained that the Roman year
should consist of 365 days, except every fourth year, which should contain 366,
the additional day to be reckoned by counting the twenty-fourth day of February
(which was the 6th of the calends of March) twice. See Bissextile is period of
time exceeds the solar year by eleven minutes or there abouts, which amounts to
the error of a day in about 131 years. In 1582, the error amounted to eleven
days or more, which was corrected by Pope Gregory. Out of this correction grew
the distinction between Old and New Style. The Gregorian or New Style was
introduced into England in 1752, the 2d day of September (0. S.) of that year
being reckoned as the 14th day of September, (N. S.) glee Almanac.
CALENDER, crim. law. A list of prisoners, containing their
names, the time when they were committed, and by whom, and the cause of their
CALIFORNIA. The name of one of the states of the United States.
It was admitted into the Union, by-an Act of Congress, passed the 9th
September, 1850, entitled "An act for the admission of the state of California
into the Union."
1. This section enacts and declares that the state of California shall
be one of the United States, and admitted into the Union on an equal footing
with the original states, in all respects whatever.
2. Enacts that the state of California shall be entitled to two
representatives, until the representatives in Congress shall be apportioned
according to the actual enumeration of the inhabitants, of the United
3. By this section a condition is expressly imposed on the said state
that the people thereof shall never interfere with the primary disposal of the
public lands within its limits, nor pass any law, nor do any act, whereby the
title of the United States to, and right to dispose of the same, shall be
impaired or questioned. It also provides that they shall never lay any tax, or
assessment of any description whatever, upon the public domain of the United
States; and that in no case shall non-resident proprietors, who are citizens of
the United States, be taxed higher than residents; that all navigable waters
within the said state shall be common highways, forever free, as well to the
inhabitants of said state, as to citizens of the United States, without any
tax, impost or duty therefor; with this proviso, viz., that nothing contained
in the act shall be construed as recognizing or rejecting the propositions
tendered by the people of California, as articles of compact in the ordinance
adopted by the convention whicb formed the constitution of that state.
2. The principal features of the constitution, of California, are
similar to those of most, of the recently formed state constitutions. It
establishes an elective judiciary, and: confers on the executive a qualified
veto. It prohibits the creation of a state debt exceeding $300,000. It provides
for the protection of the homestead from execution, and secures the property of
married females separate from that of their husbands. It makes a liberal
provision for the support of schools, prohibits the legislature from granting
divorces, autborizing lotteries, and creating corporations, except by general
laws, and from establishing any bank's of issue or circulation. It provides
also that every stockholder of a corporation or joint-stock association, shall
be individually and personally liable for his proportion of all its, debts or
liabilities. There is also a clause prohibiting slavery, which, it is said, was
inserted by the unanimous vote of the delegates.
CALLING THE PLAINTIFF, practice. When a plaintiff perceives that
he has not given evidence to maintain his issue, and intends to become
nonsuited, he withdraws himself, when the cryer is ordered to call the
plaintiff, and on his failing to appear, he becomes nonsuited. 3 Bl. Com.
CALUMNIATORS, civil law. Persons who accuse others, whom they
know to be innocent, of having committed crimes. Code 9, 46, 9.
CAMBIST. A person skilled in exchange; one who deals or trades
in promissory notes or bills of exchange.
CAMERA STELLATA, Eng. law. The court of the Star Chamber, now
CAMPARTUM. A part or portion of a larger field or ground, which
would otherwise be in gross or common. Vide Champerty.
CANAL. A trench dug for leading water in a particular direction,
and confin- ing it.
2. Public canals are generally protected by the law which authorizes
their being made. Various points have arisen under numerous laws authorizing
the construction of canals, which have been decided in cases reported in 1
Yeates, 430; 1 Binn. 70; 1 Pennsyl. 462; 2 Pennsyl. 517; 7 Mass. 169; 1 Sumu.
46; 20 Johns. 103, 735; 2 Johns. 283; 7 John. Ch. 315; 1 Wend. 474; 5 Wend.
166; 8 Wend. 469; 4 Wend. 667; 6 Cowen, 698; 7 Cowen, 526 4 Hamm. 253; 5 Hamm.
141, 391; 6 Hamm. 126; 1 N. H. Rep. 339; See River.
CANCELLARIA CURIA. The name formerly given to the court of
CANCELLATION. Its general acceptation, is the act of crossing a
writing; it is used sometimes to signify the manual operation of tearing or
destroying the instrument itself. Hyde v. Hyde, 1 Eq. Cas. Abr. 409; Rob. on
Wills, 367, n.
2. Cancelling a will, animo revocandi, is a revocation of it, and it is
unnecessary to show a complete destruction or obliteration. 2 B. & B. 650;
3 B. & A. 489; 2 Bl. R. 1043; 2 Nott & M'Cord, 272; Whart. Dig. Wills,
c.; 4 Mass. 462. When a duplicate has been cancelled, animo revocandi, it is
the cancellation of both parts. 2 Lee, Ecc. R. 532.
3. But the mere act of cancelling a will is nothing, unless it be done
animo revocandi, and evidence is admissible to show, quo animo, the testator
cancelled it., 7 Johns. 394 2 Dall. 266; S. C. 2 Yeates, 170; 4 Serg. &
Rawle, 297; cited 2 Dall. 267, n.; 3 Hen. & Munf. 502; Rob. on Wills, 365;
Lovel, 178; Toll. on Ex'rs, Index, h. t.; 3 Stark. Ev. 1714; 1 Adams' Rep. 529
Mass. 307; 5 Conn. 262; 4 Wend. 474; 4 Wend. 585; 1 Harr. & M'H. 162; 4
Conn. 550; 8 Verm. 373; 1 N. H. Rep. 1; 4 N. H. Rep. 191; 2 Eccl. Rep. 23.
4. As to the effect of cancelling a deed, which has not been recorded,
see 1 Adams' Rep. 1; Palm. 403; Latch. 226; Gilb. Law, Ev. 109, 110; 2 H . Bl.
263: 2 Johns. 87 1 Greenl. R. 78; 10 Mass. 403; 9 Pick. 105; 4 N. H. Rep. 191;
Greenl. Ev. 265; 5 Conn. 262; 4 Conn. 450; 5 Conn. 86; 2 John. R. 84; 4 Yerg.
375; 6 Mass. 24; 11 Mass. 337; 2 Curt. Ecc. R. 458.
5. As to when a court of equity will order an agreement or other
instrument to be cancelled and delivered up, see 4 Bouv. Inst. n. 3917-22.
CANDIDATE. One who offers himself or is offered by others for an
CANON, eccl. law. This word is taken from the Greek, and
signifies a rule or law. In ecelesiastical law, it is also used to designate an
order of religious persons. Francis Duaren says, the reason why the
ecclesiastics called the rules they established canons or rules, (canones id
est regulas) and not laws, was modesty. They did not dare to call them (leges)
laws, lest they should seem to arrogate to themselves the authority of princes
and magistrates. De Sacris Ecclesiae Ministeriis, p. 2, in pref. See Law,
CANONIST. One well versed in canon or ecclesiastical law.
CANNON SHOT, war. The distance which a cannon will throw a ball.
2. The whole space of the sea, within cannon shot of the coast, is considered
as making a part of the territory; and for that reason, a vessel taken under
the cannon of a neutral fortress, is not a lawful prize. Vatt. b. 1, c. 23, s.
289, in finem Chitt. Law of Nat. 113; Mart. Law of Nat. b. 8, c. 6, s. 6; 3
Rob. Adm. Rep. 102, 336; 5 Id. 373; 3 Hagg. Adm. R. 257. This part of the sea
being considered as part of the adjacent territory, (q. v.) it follows that
magistrates can cause the orders of their governments to be executed there.
Three miles is considered as the greatest distance that the force of gunpowder
can carry a bomb or a ball. Azun. far. Law, part 2, c. 2, art. 2, 15; Bouch.
Inst. n. 1848. The anonymous author of the poem, Della Natura, lib. 5,
expresses this idea in the following lines: Tanto slavanza in mar questo
dominio, Quant esser puo d'antemurale e guardia, Fin dove puo da terra in mar
vibrandosi Correr di cavo bronzo acceso fulinine. Far as the sovereign can
defend his sway, Extends his empire o'er the watery way; The shot sent
thundering to the liquid plain, Assigns the limits of his just domain. Vide
CAPACITY. This word, in the law sense, denotes some ability,
power, qualifi- cation, or competency of persons, natural, or artificial, for
the performance of civil acts, depending on their state or condition, as
defined or fixed by law; as, the capacity to devise, to bequeath, to grant or
convey lands; to take; or to take. and hold lands to make a contract, and the
like. 2 Com. Dig. 294; Dane's Abr. h. t.
2. The constitution requires that the president, senators, and
representatives should have attained certain ages; and in the case of the
senators and representatives, that out these they have no capacity to serve in
3. All laws which regulate the capacity of persons to contract, are
considered personal laws; such are the laws which relate to minority and
majority; to the powers of guardians or parents, or the disabilities of
coverture. The law of the domicil generally governs in cases of this kind.
Burge. on Sureties, 89.
CAPAX DOLI. Capable of committing crime. This is said of one who
has sufficient mind and understanding to be made responsible for his actions.
CAPE, English law. A judicial writ touching a plea of lands and
tenements. The writs which bear this name are of two kinds, namely, cape
magnum, or grand, cape, and cape parvum, or petit cape. The petit cape, is so
called, not so much on account of the smallness of the writ, as of the letter.
Fleta , lib. 6, c. 55, 40. For the difference between the form and the use of
these writs, see 2 Wms. Saund. Rep. 45, c, d; and Fleta, ubi sup.
CAPERS. Vessels of war owned by private persons, and different
from ordinary privateers (q. v.) only in size, being smaller. Bea. Lex. Mer.
CAPIAS, practice. This word, the signification of which is "
that you take," is applicable to many heads of practice. Several writs and
processes, commanding the sheriff to take the person of the defendant, are
known by the name of capias. For example: there are writs of capias ad
respondendum, writs of capias ad computandum, writs of capias ad
satisfaciendum, &c., each especially adapted to the purposes indicated by
the words used for its designation. See 3 Bl. Com. 281; 3 Bouv. Inst. n.
CAPIAS AD AUDIENDUM JUDICIUM, practice. A writ issued in a case
of misdemeanor, after the defendant has appeared and found guilty, and is not
present when called. This writ is to bring him to judgment. 4 BI. Com. 368.
CAPIAS AD COMPUTANDUM, practice. A writ issued in the action of
account render, upon the judgment quod computet, when the defendant refuses to
appear, in his proper person, before the auditors, and enter into his account.
According to the ancient practice, the defendant, after arrest upon this
process, might be delivered on main-prize, or in default of finding
mainpernors, he was committed to the Fleet prison, where the auditors attended
upon him to hear and receive his account. As the object of this process is to
compel the defendant to render an account, it does not appear to be within the
scope of acts abolishing imprisonment for debt. For precedents, see Thesaurus
Brevium, 38, 39, 40; 3 Leon. 149; 1 Lutw. 47, 51 Co. Ent. 46, 47; Rast. Ent.
14, b, 15.
CAPIAS AD RESPONDENDUM, practice. A writ commanding the sheriff,
or other proper officer, to "take the body of the defendant and to keep the
same to answer, ad respondendum, the plaintiff in a plea," &c. The amount
of bail demanded ought to, be indorsed on the writ.
2. A defendant arrested upon this writ must be committed to prison,
unless he give a bail bond (q. v.) to the sheriff. In some states, (as, until
lately, in Pennsylvania,) it is the practice, when the defendant is liable to
this process, to indorse on the writ, No bail required in which case he need
only give the sheriff, in writing, an authority to the prothonotary to enter
his appearance to the action, to be discharged from the arrest. If the writ has
been served, and the defendant have not given bail, but remains in custody, it
is returned C. C., cepi corpus; if he have given bail, it is returned C. C. B.
B., cepi corpus, bail bond; if the defendant's appearance have been accepted,
the return is, " C. C. and defendant's appearance accepted." According to the
course of the practice at common law, the writ bears teste, in the name of the
chief justice, or presiding judge of the court, on some day in term time, when
the judge is supposed to be present, not being Sunday, and is made returnable
on a regular return day. 1 Penna. Pr. 36; 1 Arch. Pr. 67.
CAPIAS AD SATISFACIENDUM, practice. A writ of execution issued
upon a judgment in a personal action, for the recovery of money, directed to
the sheriff or coroner, commanding him to take the defendant, and him safely
keep, so that he may have his body in court on the return day, to satisfy, ad
satisfaciendum, the plaintiff. This writ is tested on a general teste day, and
returnable on a regular return day.
2. It lies after judgment in most instances in which the defendant was
subject to a capias ad respondendum before, and plaintiffs are subject to it,
when judgment has been given against them for costs. Members of congress and of
the legislature, (eundo, morando, et redezzndo,) going to, remaining at, and
returning from the places of sitting of congress, or of the legislature, are
not liable to this process, on account of their public capacity; nor are
ambassadors, (q. v.) and other public ministers, and their ,servants. Act of
Congress of April 30, 1790, s. 25 and 26, Story's Laws United States, 88; 1
Dunl. Pr. 95, 96; Com. Dig. Ambassador, B; 4 Dall. 321. In Pennsylvania, women
are not subject to this writ except in actions founded upon tort, or claims
arising otherwise than ex contractu. 7 Reed's Laws of Pa. 150. In several of
the United States, the use of this writ, as well as of the capias ad
respondendum, has been prohibited in all actions instituted for the recovery of
money due upon any contract, express or implied, or upon any judgment or
decree, founded on any contract, or for the recovery of damages for the breach
of any contract, with a few exceptions. See Arrest.
3. It is executed by arresting the body of the defendant, and keeping
him in custody. Discharging him upon his giving security for the payment of the
debt, or upon his promise to return into custody again before the return day,
is an escape, although he do return; 13 Johns. R. 366 8 Johns. R. 98; and the
sheriff is liable for the debt. In England, a payment to the sheriff or other
officer having the ca. sa., is no payment to the plaintiff. Freem. 842 Lutw.
587; 2 Lev. 203; 1 Arch. Pr. 278. The law is different in Pennsylvania. 3 Serg.
& Rawle, 467. The return made by the officer is either C. C. & C., cepi
corpus et comittitur, if the defendant have been arrested and held in custody;
or N. E. I., non est inventus, if the officer has not been able to find him.
This writ is, in common language, called a ca. sa.
CAPIAS PRO FINE, practice, crim. law. The name of a writ which
issues against a defendant who has been fined, and who does not discharge it
according to the judgment. This writ commands the sheriff to arrest the
defendant and commit him to prison, there to remain till he pay the fine, or be
otherwise discharged according to law.
CAPIAS UTLAGATUM English practice. A capias utlagatum is general
or special; the former against the person only, the latter against the person,
lands and goods.
2. This writ issues upon the judgment of outlawry being returned by the
sheriff upon the exigent, and it takes its name from the words of the mandatory
part of the writ, which states the defendant being outlawed utlagatum, which
word comes from the Saxon utlagh, Latinized utlagatus, and signifies bannitus,
extra legem. Cowel.
3. The general writ of capias utlagatum commands the sheriff to take the
defendant, so that he have him before the king on a general return day,
wheresoever, &c., to do and receive what the court shall consider of
4. The special capias utlagatum, like the general writ, commands the
sheriff to take the defendant. The defendant is discharged upon an attorney's
undertaking, or upon giving bond to the sheriff, in the same manner as when the
writ is general. But the special writ also commands the sheriff to inquire by a
jury, of the defendant's goods and lands, to extend and appraise the same, and
to take them in the king's hands and safely keep them, so that he may answer to
the king for the value and issue's of the same. 2 Arch. Pr. 161. See
CAPIAS IN WITHERNAM, practice. A writ issued after a return of
elongata or eloigned has been made to a writ of retorno habendo, commanding the
sheriff to take so many of the distrainer's goods by way of reprisal, as will
equal the goods mentioned in the retorno habendo. 2 Inst. 140; F. N. B. 68; and
see form in 2 Sell. Pr. 169.
CAPIATUR, pro fine. The name of a writ which was issued to levy
a fine due to the king. Bac. Ab. Fines and Amercements, in prin. See Judgment
CAPITA, or PER CAPITA. By heads. An expression of frequent
occurrence in laws regulating the distribution of the estates of persons dying
intestate. When all the persons entitled to shares in the distribution are of
the same degree of kindred to the deceased person, (e.g. when all are
grandchildren,) and claim directly from him in their own right and not through
an intermediate relation, they take per capita, that is, equal shares, or share
and share alike. But when they are of different degrees of kindred, (e. g. some
tho children, others the grandchildren or the great grandchildren of the,
deceased,) those more remote take er stirpem or per stirpes, that is, they take
respectively the shares their parents (or other relation standing in the same
degree with them of the surviving kindred entitled) who are in the nearest
degree of kindred to the intestate,) would have taken had they respectively
survived the intestate. Reeves' Law of Descent, Introd. xxvii.; also 1 Rop. on
Leg. 126, 130. See Per Capita; Per Stirpes; Stirpes;
CAPITAL, political economy, commerce. In political economy, it
is that portion of the produce of a country, which may be made directly
available either to support the human species or to the facilitating of
2. In commerce, as applied to individuals, it is those objects, whether
consisting of money or other property, which a merchant, trader, or other
person adventures in an undertaking, or which he contributes to the common
stock of a partnership. 2 Bouv. Inst. n. 1458.
3. It signifies money put out at interest.
4. The fund of a trading company or corporation is also called capital,
but in this sense the word stock is generally added to it; thus we say the
capital stock of the Bank of North America.
CAPITAL CRIME. One for the punishment of which death is
inflicted, which punishment is called capital punishment. Dane's Ab. Index, h.
2. The subject of capital punishment has occupied the attention of
enlightened men for a long time, particularly since the middle of the last
century; and none deserves to be more carefully investigated. The right of
punishing its members by society cannot be denied; but how far this right
extends, by the laws of nature or of God, has been much disputed by theoretical
writers, although it cannot be denied, that most nations, ancient and modern,
have deemed capital punishment to be within the scope of the legitimate powers
of government. Beccaria contends with zeal that the punishment of death ought
not to be inflicted in times of peace, nor at other times, except in cases
where the laws can be maintained in no other way. Bee. Chap. 28.
3. It is not within the plan of this work to examine the question,
whether the punishment is allowed by the natural law. The principal arguments
for and against it are here given.
4.- 1. The arguments used in favor of the abolition of capital
5. - 1st. That existence is a right which men hold from God, and which
society in body can, no more than a member of that society, deprive them of,
because society is governed by the immutable laws of humanity.
6. - 2d. That, even should the right be admitted, this is a restraint
badly selected, which does not attain its end, death being less dreaded than
either solitary confinement for life, or the performance of hard labor and
disgrace for life.
7. - 3d. That the infliction of the punishment does not prevent crimes,
any more thau, other less severe but longer punishments.
8. - 4th. That as a public example, this punishment is only a barbarous
show, better calculated to accustom mankind to the contemplation of bloodshed,
than to restrain them.
9. - 5th. That the law by taking life, when it is unnecessary for the
safety of society, must act by some other motive this can be no other than
revenge. To the extent the law punishes an individual beyond what is requisite
for the preservation of society, and the restoration of the offender, is cruel
and barbarous. The law) to prevent a barbarous act, commits one of the same
kind,; it kills one of the members of society, to convince the others that
killing is unlawful.
10. - 6th. That by depriving a man of life, society is deprived of the
benefits which he is able to confer upon it; for, according to the vulgar
phrase, a man hanged is good for nothing.
11. - 7th. That experience has proved that offences which were formerly
punished with death, have not increased since the punishment has been changed
to a milder one.
12. - 2. The arguments which have been urged on the other side, are,
13. - 1st. That all that humanity commands to legislators is, that they
should inflict only necessary and useful punisliments; and that if they keep
within these bounds, the law may permit an extreme remedy, even the punishment
of death, when it is requisite for the safety of society.
14. - 2d. That, whatever be said to the contrary, this punishment is
more repulsive than any other, as life is esteemed above all things, and death
is considered as the greatest of evils, particularly when it is accompanied by
15. - 3d. That restrained, as this punishment ought to be, to the
greatest crimes, it can never lose its efficacy as an example, nor harden the
multitude by the frequency of executions.
16. - 4th. That unless this punishment be placed at the top of the scale
of punishment, criminals will always kill, when they can, while committing an
inferior crime, as the punishment will be increased only by a more protracted
imprisonment, where they still will hope for a pardon or an escape.
17th. - 5th. The essays which have been made by two countries at least;
Russia, under the reign of Elizabeth, and Tuscany, under the reign of Leopold,
where the punishment of death was abolished, have proved unsuccessful, as that
punishment has been restored in both.
18. Arguments on theological grounds have also been advanced on both
sides. See Candlish's Contributions towards the Exposition of the Book of
Genesis, pp. 203-7. Vide Beccaria on Crimes and Punishments; Voltaire, h. t.;
Livingston's Report on a Plan of a Penal Code; Liv. Syst. Pen. Law, 22; Bentham
on Legislation, part 3, c. 9; Report to the N. Y. Legislature; 18 Am. Jur.
CAPITATION. A poll tax; an imposition which is yearly laid on
each person according to his estate and ability.
2. The Constitution of the United States provides that "no capitation,
or other direct tax, shall be laid, unless in proportion to the census, or
enumeration, therein before directed to be taken." Art. 1, s. 9, n. 4. See 3
Dall. 171; 5 Wheat. 317.
CAPITE, descents. By the head. Distribution or succession per
capita, is said to take place when every one of the kindred in equal degree,
and not jure representationis, receive an equal part of an estate.
CAPITULARIES.The Capitularia or Capitularies, was a code of laws
promulgated by Childebert, Clotaire, Carloman, Pepin, Charlemague, and other
kings. It was so called from the small chapters or heads into which they were
divided. The edition by Baluze, published in 1677, is said to be the best.
CAPITULATION, war. The treaty which determines the conditions
under which a fortified place is abandoned to the commanding officer of the
army which besieges it.
2. On surrender by capitulation, all the property of the inhabitants
protected by the articles, is considered by the law of nations as neutral, and
not subject to capture on the high seas, by the belligerent or its ally. 2
CAPITULATION, civ.law. An agreement by which the prince and the
people, or those who have the right of. the people, regulate the manner in
which the government is to be administered. Wolff, 989.
CAPTAIN or SEA CAPTAIN, mar. law. The name given to the master
or commander of a vessel. He is known in this country very generally by the
name of master. (q. v.) He is also frequently denominated patron in foreign
laws and books.
2. The captains in the navy of the United States, are officers appointed
by government. Those who are employed in the mercantile service, have not
strictly an official character. They are appointed or employed by the owners on
the vessels they command.
3. It is proposed to consider the duty of the latter. Towards the owner
of the vessel he is bound by his personal attention and care, to take all the
necessary precautions for her safety; to, proceed on the voyage in which such
vessel may be engaged, and to obey faithfully his instructions; and by all
means in his power to promote the interest of his owner. But he is not required
to violate good faith, nor employ fraud even with an enemy. 3 Cranch, 242.
4. Towards others, it is the policy of the law to hold him responsible
for all losses or damages that may happen to the goods committed to his charge;
whether they arise from negligence, ignorance, or wilful misconduct of himself
or his mariners, or any other person on board the ship. As soon, therefore, as
goods are put on board, they are in the master's charge, and he is bound to
deliver them again in the same state in which they were shipped, and he is
answerable for all losses or damages they may sustain, unless it proceed from
au inherent defect in the article, or from some accident or misfortune which
could not be prevented.
5. It may be laid down as a general rule, that the captain is
responsible when any loss occurs in consequence of his doing what he ought not
to do, unless he was forced by the act of God,. the enemies of the United
States, or the perils of the sea.1 Marsh. Ins. 241; Pard. n. 658.
6. The rights of the captain are, to choose his crew as he is
responsible for their acts, this seems but just, but a reasonable deference to
the rights of the owner require that he should be consulted, as he, as well as
the captain, is responsible for the acts of the crew. On board, the captain is
invested with almost arbitrary power overthe crew, being responsible for the
abuse of his authority. Ab. on Sbipp.162. He may repair the ship, and, if he is
not in funds to pay the expenses of such repairs, he may borrow money, when
abroad, on the credit of his owners or of the ship. Abb. on Sh. 127-8. In such
cases, although contracting within the ordinary scope of his owers and duties,
he is generally responsible as well as the owner. This is the established rule
of the maritime law, introduced in favor of commerce it has been recognized and
adopted by the commercial nations of, Europe, and is derived from the civil or
Roman law. Abbott, Ship. 90; Story, Ag. 11 6 to 123, 294; Paley, Ag. by Lloyd,
244; 1 Liverm. Ag. 70; Poth. Ob. n. 82; Ersk. Inst. 3, 3, 43; Dig. 4, 9, 1;
Poth. Pand. lib. 14, tit. 1; 3 Summ. R. 228. See Bell's Com. 505, 6th ed; Bouv.
Inst. Index, h. t.
CAPTATION, French law. The act of one who succeeds in
controlling the will of another, so as to become master of it. It is generally
taken in a bad sense.
2. Captation takes place by those demonstrations of attachment and
friendship, by those assiduous attentions, by those services and officious
little presents which are usual among friends, and by all those means which
ordinarily render us agreeable to others. When those attentions are unattended
by deceit or fraud, they are perfectly fair, and the captation is lawful; but
if, under the mask of friendship, fraud is the object, and means are used to
deceive the person with whom you are connected, then the captation is
fraudulent, and the acts procured by the captator are void. See Influence.
CAPTATOR, French law. The name which is sometimes given, to him
who by flattery and artifice endeavors to surprise testators, and induce them
to. give legacies or devices, or to make him some other gift. Diet. de Jur.
CAPTION, practice. That part of a legal instrument, as a
'Commission, indictment, &c., which shows where, when, and by what
authority it was taken, found or executed. As to the forms and requisites of
captions, see 1 Murph. 281; 8 Yerg. 514; 4 Iredell, 113; 6 Miss,. 469; 1 Scam.
456; 5 How. Mis. 20; 6 Blackf. 299; 1 Hawks, 354; 1 Brev. 169.
2. In the English practice, when an in ferior court in obedience to the
writ of certiorari, returns an indictment into the K. B. , it is annexed to the
caption, then called a schedule, and the caption concludes with stating, that "
it is presented in manner and form as appears in a certain indictment thereto
annexed, " and the caption and indictment are returned on separate parch ments.
1 Saund. 309, n. 2. Vide Dane's Ab. Index, h. t.
3. Caption is another name for arrest.
CAPTIVE. By this term is understood one who has been taken; it is
usually applied to prisoners of war. (q.v.) Although he bas lost his liberty, a
captive does not by his captivity lose his civil rights.
CAPTOR, war. One who has talken property from an enemy; this
term is also employed to designate one who has taken an enemy.
2. Formerly, goods taken in war were adjudged to belong to the captor;
they are now considered to vest primarily, in the state or sovereign, and
belong to the individual captors only to the extent that the municipal laws
3. Captors are responsible to the owners of the property for all losses
and damages, when the capture is tortious and without reasonable cause in the
exercise of belligerent rights. But if the capture is originally justifiable,
the captors will not be responsible, unless by subsequent misconduct they
become trespassers ab initio. i Rob. R. 93, 96. See 2 Gall. 374; 1 Gall. 274; 1
Pet. Adm. Dee. 116; 1 Mason, R. 14.
CAPTURE, war. The taking of property by one belligerent from
2. To make a good capture of a ship, it must be subdued and taken by an
enemy in open war, or by way of reprisals, or by a pirate, and with intent to
deprive the owner of it.
3. Capture may be with intent to possess both ship and cargo, or only to
seize the goods of the enemy, or contraband goods which are on board: The
former is the capture of the ship in the proper sense of the word; the latter
is only an arrest and detention, witbout any design to deprive the owner of it.
Capture is deemed lawful, when made by a declared enemy, lawfully commissioned
and according to the laws of war; and unlawful, when it is against the rules
established by the law of nations. Marsh. Ins. B. 1, c. 12, s. 4.See,
generally, Lee on Captures, passim; 1 Chitty's Com. Law, 377 to 512; 2 Woddes.
435 to 457; 2 Caines' C. Err 158; 7 Johns. R. 449; 3 Caines' R. 155; 11 Johns.
R. 241; 13 Johns. R.161; 14 Johns. R. 227; 3 Wheat. 183; 4 Cranch, 436 Mass.
197; Bouv. Inst. Index, h. t.
CAPUT LUPINUM, Eng. law. Having the head of a wolf. An outlawed
felon was said to have the head of a wolf, and might have been killed by any
one legally. Now, such killing would be murder. 1. Hale, Pl. C. 497. The rules
of the common law on this subject are rauch more severe in their consequences,
than the doctrine of the civil law relating to civil death. See 1 Toull. Droit
Civil, n. 280, and pp. 254-5, note 3.
CARAT, weights. A carat is a weight equal to three and one-sixth
grains, in diamonds, and the like. Jac. L. Dict. See Weight.
CARCAN, French law. A French word, which is applied to an
instrument of punishment somewhat resembling a pillory. It sometimes signifies
the punishment itself. Biret Vocab.
CARDINAL, eccl. law. The title given to one of tho highest
dignitaries of the court of Rome. Cardinals are next to the pope in dignity; he
is elected by them and out of their body. There are cardinal bishops, cardinal
priests, and cardinal deacons. See Fleury, Hist. Eccles. liv. xxxv. n. 17, Ii.
n. 19 Thomassin, part ii. liv. i. oh. 53, part iv. liv. i. c. 79, 80 Loiseau,
Traite des Ordres, c. 3, n. 31; Andre, Droit Canon, au mot.
CARDS, crim. law. Small square pasteboards, generally of a fine
quality, on which are painted figures of various colors, and used for playing
different games. The playing of cards for amusement is not forbidden, but
gaming for money is unlawful. Vide Faro bank, and Gaming.
CARGO, mar. law. The entire load of a ship or other vessel. Abb.
on Sh. Index, h. t.; 1 Dall. 197; Merl. Rep. h. t.; 2 Gill & John. 136.
This term is usually applied to goods only, and does not include human beings.
1 Phill. Ins. 185; 4 Pick. 429. But in a more extensive and less technical
sense, it includes persons; thus we say a cargo of emigrants. See 7 Mann. Gr.
CARNAL KNOWLEDGE, crim. law. This phrase is used to signify a
sexual connexion; as, rape is the carnal knowledge of a woman, &c. See
CARNALLY KNEW, pleadings. This is a technical phrase, essential
in an indictment to charge the defendant with the crime of rape; no other word
or circumlocution will answer the same purpose as these word's. Vide Ravished,
and Bac. Ab. Indictment, G 1; Com. Dig. Indictment, G 6; 1 Hale, 632; 3 Inst.
60; Co. Litt. 137; ) 1 Chit. Cr. Law, *243. It has been doubted whether these
words were indispensible. 1 East, P. C. 448. But it would be unsafe to omit
CARRIERS, contracts. There are two kinds of carriers, namely,
common carriers, (q. v.) who have been considered under another head; and
private carriers. These latter are persons who, although they do not undertake
to transport the goods of such as choose to employ them, yet agree to carry the
goods of some particular person for hire, from one place to another.
2. In such case the carrier incurs no responsibility beyond that of any
other ordinary bailee for hire, that is to say, the responsibility of ordinary
diligence. 2 Bos. & Pull. 417; 4 Taunt. 787; Selw. N. P. 382 n.; 1 Wend. R.
272; 1 Hayw. R. 14; 2 Dana, R. 430; 6 Taunt. 577; Jones, Bailm. 121; Story on
Bailm, 495. But in Gordon v. Hutchinson, 1 Watts & Serg. 285, it was holden
that a Wagoner Who carries goods for hire, contracts,the responsibility of a
common carrier, whether transportation be his principal and direct business, or
only an occasional and incidental employment.
3. To bring a person within the description of a common carrier, he must
exercise his business as a public employment; he must undertake to carry goods
for persons generally; and he must hold himself out as ready to engage in the
transportation of goods for hire, as a business; not as a casual occupation pro
hac vice. 1 Salk. 249; 1 Bell's Com. 467; 1 Hayw. R. 14; 1 Wend. 272; 2, Dana,
R. 430. See Bouv. Inst. Index, b. t.
CARRYING AWAY, crim. law. To complete the crime of larceny, the
thief must not only feloniously tale the thing stolen, but carry it away. The
slightest carrying away will be sufficient; thus to snatch a diamond from a
lady's ear, which is instantly dropped among the curls of her hair. 1 Leach,
320. To remove sheets from a bed and carry them into an adjoining room. 1
Leach, 222 n. To take plate from a trunk, and lay it on the floor with intent
to carry it away. Ib. And to remove a package from one part of a wagon to
another, with a view to steal it; 1 Leach, 286; have respectively been holden
to be felonies. 2 Chit. Cr. Law, 919. Vide 3 Inst. 108, 109 1 Hale, 507; Kel.
31 Ry. & Moody, 14 Bac. Ab. Felony, D 4 Bl. Com. 231 Hawk. c.32, s. 25.
Where, however, there has not been a complete severance of the possession, it
is not a complete carrying away. 2 East, P. C. 556; 1 Hale, 508; 2 Russ. on Cr.
96. Vide Invito Domino; Larceny; Robbery; Taking.
CART BOTE. An allowance to the tenant of wood, sufficient for
carts and other instruments of husbandry.
CARTE BLANCHE. The signature of an individual or more, on a
while. paper, with a sufficient space left above it to write a note or other
2. In the course of business, it not unfrequently occurs that for the
sake of convenience, signatures in blank are given with authority to fill them
up.. These are binding upon the parties. But the blank must be filled up by the
very person authorized. 6 Mart. L. R. 707. Vide Ch. on Bills, 702 Penna. R.
200. Vide Blank.
CARTEL,war. An agreement between two belligerent powers for the
delivery of prisoners or deserters, and also a written challenge to a duel.
2. Cartel ship, is a ship commissioned in time of war, to exchange
prisoners, or to carry any proposals between hostile powers; she must carry no
cargo, ammunitions, or implements of war, except a single gun for signals. The
conduct of ships of this description cannot be too narrowly watched. The
service on which they are sent is so highly important to the interests of
humanity, that it is peculiarly incumbent on all parties to take care that it
should be conducted in such a manner as not to become a subject of jealousy and
distrust between the two nations. 4 Rob. R. 357. Vide Merl. Rep. b. t.; Dane's
Ab. c. 40, a. 6, 7; Pet. C. C. R. 106; 3 C. Rob. 141 C. Rob. 336; 1 Dods. R.
CARTMEN. Persons who carry goods and merchandise in carts,
either for great or short distances, for hire. 2. Cartmen who undertake to
carry goods for hire as a common employment, are common carriers. Story on
Bailm. 496; and see 2 Wend. 327 2 N. & M. 88; 1 Murph. 41 7; 2 Bailey, 421
2 Verm. 92; 1 M'Cord, 444; Bac. Ab. Carriers, A.
CASE practice. A contested question before a court of justicea
suit or action a cause. 9 Wheat. 738.
CASE, remedies. This is the name of an action in very general
use, which lies where a party sues for damages for any wrong or cause of
complaint towhich covenant or trespass will not lie. Steph. Pl. 153 Wodd. 167
Ham. N. P. 1. Vide Writ of trespass on the case. In its most comprehensive
signification, case includes assumpsit as well as an action in form ex delicto;
but when simply mentioned, it is usually understood to mean an action in form
ex delicto. 7 T. R. 36. It is a liberal action; Burr, 906, 1011 1 Bl. Rep. 199;
bailable at common law. 2 Barr 927-8; founded on the justice and conscience of
the Tiff's case, and is in the nature of a bill in equity 3 Burr, 1353, 1357
and the substance of a count in case is the damage assigned. 1 Bl. Rep.
2. An action on the case lies to recover damages for torts not committed
with force actual or implied, or having been occasioned by force, where the
matter affected was not tangible, or where the injury was not immediate but
consequential; 11 Mass. 59, 137 1 Yeates, 586; 6 S. & R. 348; 12 S. &
R. 210 ; 18 John. 257 19 John. 381; 6 Call, 44; 2 Dana, 378 1 Marsh. 194; 2 H.
& M. 423; Harper, 113; Coxe, 339; or where the interest in the property was
only in reversion. 8 Pick. 235; 7 Conn. 3282 Green, 8 1 John. 511; 3 Hawks,
2462 Murph. 61; 2 N. H. Rep. 430. In these several cases trespass cannot be
sustained. 4 T. 11. 489 7 T. R. 9. Case is also the proper remedy for a
wrongful act done under legal process regularly issuing from a court of
competent jurisdiction. 2 Conn. 700 11 Mass. 500 6 Greenl. 421; 1 Bailey, 441,
457; 9 Conn. 141; 2 Litt. 234; 3 Conn. 5373 Gill & John. 377. Vide Regular
and irregular process.
3. It will be proper to consider, 1. in what cases the action of
trespass on the case lies; 2. the pleadings 3. the evidence; 4. the
4. 1. This action lies for injuries, 1. to the absolute rights of
persons 2. to the relative rights of persons; 3. to personal property; 4. to
5. - 1. When the injury has been done to the absolute rights of persons
by an act not immediate but consequential, as in the case of special damages
Irising from a public nuisance Willes, 71 to 74 or where an incumbrance had
been placed in a public street, and the plaintiff passing there received an
injury; or for a malicious prosecution. See malicious prosecution.
6. - 2. For injuries to the relative rights, as for enticing away an
infant child, per quod servitium amisit, 4 Litt. 25; for criminal conversation,
seducing or harboring wives; debauching daughters, but in this case the
daughter must live with her father as his servant, see Seduction; or enticing
away or harboring apprentices or servants. 1 Chit. Pl. 137 2 Chit. Plead. 313,
319. When the seduction takes place in the husband's or father's house, he may,
at his election, have trespass or case; 6 Munf. 587; Gilmer, 33but when the
injury is done in the house of another, case is the proper remedy. 5 Greenl.
7. - 3. When the injury to personal property is without force and. not
immediate, but consequential, or when the plaintiff Is right to it is in
reversion, as, where property is injured by a third person while in the hands
of a hirer; 3 Camp. 187; 2 Murph. 62; 3 Hawks, 246, case is the proper remedy.
8 East, 693; Ld. Raym. 1399; Str. 634; 1 Chit. Pl. 138.
8. - 4. When the real property which has been injured is corporeal, and
the injury is not immediate but consequential, as for example, putting a spout
so near the plaintiff's land that the water runs upon it; 1 Chit. Pl. 126, 141;
Str. 634; or where the plaintiff's property is only in reversion. When the
injury has been done to, incorporeal rights, as for obstructing a private way,
or disturbing a party in the use of a pew, or for injury to a franchise, as a
ferry, and the like, case is the proper remedy. l Chit. Pl. 143.
9. - 2. The declaration in case, technically so called, differs from a
declaration in trespass, chiefly in this, that in case, it must not, in
general, state the injury to have been committed vi et armis; 3 Conn. 64; see 2
Ham. 169; 11 Mass. 57; Coxe, 339; yet after verdict, the words " with force and
arms" will, be rejected as surplusage; Harp. 122; and it ought not to conclude
contra pacem. Com. Dig. Action on the Case, C 3. The plea is usually the
general issue, not guilty.
l0. - 3. Any matter may, in general, be given in evidence, under the
plea of not guilty, except the statute of limitations. In cases of slander and
a few other instances, however, this cannot be done. 1 Saund. 130, n. 1;
Wilies, 20. When the plaintiff declares in case, with averments appropriate to
that form of action and the evidence shows that the injury was trespass; or
when he declares in trespass, and the evidence proves an injury for which case
will lie, and not trespass, the defendant should be acquitted by the jury, or
the plaintiff should be nonsuited. 5 Mass. 560; 16 Mass. 451; Coxe, 339; 3
11. - 4. The judgment is, that the plaintiff recover a sum of money,
ascertained by a jury, for his damages sustained by the committing of the
grievances complained of in the declaration, and costs.
12. In the civil law, an action was given in all cases of nominate
contracts, which was always of the same name. But in innominate contracts,
which had always the same consideration, but not the same name, there could be
no action of the same denomination, but an action which arose from the fact, in
factum, or an action with a form which arose from the particular circumstance,
praescriptis verbis actio. Lec. Elem. 779. Vide, generally, Bouv. Inst. Index,
CASE, STATED, practice. An agreement in writing, between a
plaintiff and defendant, that the facts in dispute between them are as there
agreed upon and mentioned, 3 Whart. 143.
2. The facts being thus ascertained, it is left for the court to decide
for which party is the law. As no writ of error lies on a judgment rendered on
a case stated, Dane's Ab. c. 137, art. 4, n. 7, it is usual in the agreement to
insert a clause that the case stated shall be considered in the nature of
3. In that case, a writ of error lies on the judgment which may be
rendered upon it. And a writ of error will also lie on a judgment on a case
stated, when the parties have agreed to it. 8 Serg. & Rawle, 529.
4. In another sense, by a case stated is understood a statement of all
the facts of a case, together with the names of the witnesses, and, a detail of
the documents which are to support them. In other words, it is a brief. (q.
CASH, commerce. Money on hand, which a merchant, trader or other
person has to do business with.
2. Cash price, in contracts, is the price of articles paid for in cash,
in contradistinction to the credit price. Pard. n. 85; Chipm. Contr. 110. In
common parlance, bank notes are considered as cash; but bills receivable are
CASH-BOOK, Commerce, accounts. One in which a merchant or trader
enters an account of all the money, or paper moneys he receives or pays. An
entry of the same thing ought to be made under the proper dates, in the
journal. The object of the cash-book is to afford a constant facility to
ascertain the true state of a man's cash. Pard. n. 87.
CASHIER. An officer of a moneyed institution, who is entitled by
virtue of his office to take care of the cash or money of such institution.
2. The cashier of a bank is usually entrusted with all the funds of the
bank, its notes, bills, and other choses in action, to be used from time to
time for the ordinary and extraordinary exigencies of the bank. He usually
receives directly, or tbrough subordinate officers, all moneys and notes of the
bankdelivers up all discounted notes and other securities, when they have been
paid draws checks to withdraw the funds of the bank where they have been
deposited; and, as the executive officer of the bank, transacts much of the
business of the institution. In general, the bank is bound by the acts of the
cashier within the scope of his authority, expressed or implied. 1 Pet. R. 46,
70Wheat. R. 300, 361 5 Wheat. R. 326; 3 Mason's R. 505; 1 Breese, R. 45; 1
Monr. Rep. 179. But the bank is not bound by a declaration of the cashier, not
within the scope of his authority; as when a note is about to be discountedby
the bank, he tells a person that he will incur no risk nor responsibility by
becoming an indorser upon such note. 6 Pet. R. 51; 8 Pet. R. 12.Vide 17 Mass.
R. 1 Story on Ag. 114, 115; 3 Halst. R. 1; 12 Wheat. R. 183; 1 Watts &
To CASHIER, punishment. To break; to deprive a military man of
his office. Example: every officer who shall be convicted, before a general
court martial, of leaving signed a false certificate relating to the absence of
either officer or private soldier, or relative to his daily pay, shall be,
cashiered. Articles of war, art. 14.
CASSATION, French law. A decision which emanates from the
sovereign authority, and by which a sentence or judgment in the last resort is
annulled., Merl. Rep. h. t. This jurisdiction is now given to the Cour de
2. This court is composed of fifty-two judges, including four
presidents, an attorney-general, and six substitutes, bearing the title of
advocates general; a chief clerk, four subordinate clerks, and eight huissiers.
Its jurisdiction extends to the examination and superintendence of the
judgments and decrees of the inferior court, both in civil and criminal cases.
It is divided into three sections, namely, the section des requetes, the
section civile, and the section criminelle. Merl. Rep. mots Cour de
CASSETUR BREVE, practice. That the writ be quashed. This is the
name of a judgment sometime sentered against a plaintiff when he cannot
prosecute his writ with effect, in consequence of some allegation on the
defendant's part. The plaintiff, in order to put an end to any further
proceeding in the action,enters on the roll cassetur breve, the effect of which
is to quash his own writ,which exonerates him from the liability to any future
costs, and allows him to sue out new process. A cassetur bill a may be entered
with like effect. 3 Bl. Com. 340; and vide 5 T. R. 634; Gould's Plead. c. 5,
139; 3 Bouv. Inst. n. 2913-14. Vide To quash.
CASTIGATORY, punishments. An engine used to punishwomen who have
been convicted of being common scolds it is sometimes called the trebucket,
tumbrel, ducking stool, or cucking stool. This barbarous punishment has perhaps
never been inflicted in the United States. 12 S. & It. 225. Vide Common
CASTING VOTE, legislation. The vote given by the president or
speaker of a deliberate assembly; when the votes of the other members are equal
on both sides, the casting vote then decides the question. Dane's Ab. h. t.
CASTRATION, crim. law. The act of gelding. When this act is
maliciously performed upon a man, it is a mayhem, and punishable as such,
although the sufferer consented to it.
2. By the ancient law of England this crime was punished by retaliation,
membrum pro membro. 3 Inst. 118. It is punished in the United States generally
by fine and imprisonment. The civil law punished it with death. Dig. 48, 8, 4,
2. For the French law, vide Code Penal, art. 316. 3. The consequences
ofcastration, when complete, are impotence and sterility. 1 Beck's Med. Jur.
CASUPROVISO, practice. A writ of entry given by the statute of
Gloucester, c. 7, when a tenant in dower aliens in fee or for life. It might
have been brought by the reversioner against the alienee. This, is perhaps an
obsolete remedy, having yielded to the writ of ejectment. F. N. B. 205 Dane's
Ab. Index, h. t.
CASUAL. What happens fortuitously what is accidental as, the
casual revenue's of the government, are those which are contingeut or
CASUAL EJECTOR, pratice, ejectment. A person, supposed to come
upon-land casually, (although usually by previous agreement,) who turns out the
lessee of the person claiming the possession against the actual tenant or
occupier of the land. 3 Bl. Com. 201, 202.
2. Originally, in order to try the right by ejectment, Several things
were necessary to be made out before the court first, a title to the land, in
question, upon which the owner was to make a formal entry; and being so in
possession he executed a lease to some third person or lessee, leaving him in
possession then the prior tenant or some other person, called the casual
ejector, either by accident or by agreement beforehand, came upon the land and
turned him out, and for this ouster or turning out, the action was brought. But
these formalities are now dispensed with, and the trial relates merely to the
title, the defendant being bound to acknowledge the lease, entry, and ouster. 3
Bl. Com. 202;.Dane's Ab. Index, h. t.
CASUS FOEDORIS. When two nations have formed a treaty of
alliance, in anticipation of a war or other difficulty with another, and it is
required to determine the case in which the parties must act in consequence of
the alliance, this is called the casus foederis, or case of alliance. Vattel,
liv. 3, c. 6, 88.
CASUS FORTUITUS. A fortuitous case; an uncontrollable accident
an act of God. See Act of God; Cas fortuit; Fortuitous event.
CASUS OMISSUS. An omitted case.
2. When a statute or an instrument of writing undertakes to foresee and
to provide for certain contingencies, and through mistake, or some other cause,
a case remains to be provided for, it is said to be a casus omissus.For
example, when a statute provides for the descent of intestates estates, and
omits a case, the estate descends as it did before the statute, whenever that,
case occurs, although it appear to be within the general scope and intent of
the statute. 2 Binn. R. 279.
3. When there has been a casus omissus in a statute, the subject is
ruled by the common law: casus omissuset oblivioni datus dispositioni juris
communis relinquitur. 5 Co. 38. Vide Dig. 38, 1, 44 and 55 Id. 38, 2, 10; Code,
6, 52, 21 and 30.
CATCHING BARGAIN, contracts, fraud. An agreement made with an
heir expectant, for the purchase of his expectancy, at an inadequate price.
2. In such case, the heir is, in general, entitled to relief in equity,
and way have the contract rescinded upon terms of redemption. 1 Vern. 167; 2
Cox, 80; 2 Cli. Ca. 136; 2 Vern., 121; 2 Freem. 111; 2 Vent. 329; 2 Rep. in Ch.
396; 1 P.Wms. 312; 3 PWms. 290, 293, n.; 1Cro. C. C. 7; 2 Atk. 133; 2 Swanst.
147, and the cases cited in the note; 1 Fonb.140 1 Supp. to Ves. Jr. 66 Id. 361
1 Vern. 320, n. It has been said that all persons dealing for a reversionary
interest are subject to this rule, but it may be doubted whether the course of
decisions authorizes so extensive a conclusion and whether, in order to
constitute a title to relief, the reversioner must not combine the character of
heir. 2 Swanst. 148, n. Vide 1 Ch. Pr. 112, 113, n., 458, 826, 838, 839. A mere
hard bargain is not sufficient ground for relief.
3. The French law is in unison with these principles. An agreement,
which has for its object the succession of aman yet alive, is generally
void.Merl. Rep. mots Succession Future. Vide also Dig. 14,6, and Lesion.
CATCHPOLE, officer. A name formerly given to a sheriff's deputy,
or to a constable, or other officer whose duty it is to arrest persons. He was
a sort of serjeant. The word is not now in use as an official designation.
Minshew ad verb.
CAUSA MATRIMONII PRAELOCUTI, Engl. law. An obsolete writ, which
lies when a woman gives land to a man in fee simple, or for a less estate, to
the intent that he should marry her and he refuses upon request. New. Nat. Bre.
CAUSE, civ. law. This word has two meanings. 1. It signifies the
delivery of the thing, or the accomplishment of the act which is the object of
a convention. Datio vel factum, quibus ab una parte conventio, impleri caepta
est. 6 Toull. n. 13, 166. 2. it is the consideration or motive formakinga
contract. An obligation without a cause, or with a false or unlawful cause, has
no effect; but an engagement is not the less valid, though the cause be not
expressed. The cause is illicit, when it is forbidden by law, when it is contra
bones mores, or public order. Dig. 2, 14, 7, 4; Civ. Code of Lo. a. 1887-1894
Code Civil, liv. 3, c. 2, s. 4, art. 1131-1133; Toull. liv. 3, tit. 3, c. 2, s.
CAUSE, contra torts, crim. That which produces an effect.
2. In considering a contract, an injury, or a crime, the law for many
purposes looks to the immediate, and not to any remote cause. Bac. Max. Reg. 1;
Bac. Ab. Damages, E; Sid. 433; 2 Taunt. 314. If the cause be lawful, the party
will be justified; if unlawful, he will be condemned. The following is an
example in criminal law of an immediate and remote cause. If Peter, of malice
prepense, should discharge a pistol at Paul, and miss him, and then cast away
the pistol and fly and, being pursued by Paul, he turn round, and kill him with
a dagger, the law considers the first as the impulsive cause, and Peter would
be guilty of murder. But if Peter, with his dagger drawn, had fallen down, and
Paul in his haste had fallen upon it and killed himself, the cause of Paul's
death would have been too remote to charge Peter as the murderer. Id.
3. In cases of insurance, the general rule is that the immediate and not
the remote cause of the loss is to be considered; causa proximo non remota s
pedatur. This rule may, in some cases, apply to carriers. Story, Bailm.
4. For the reach of contracts, the contractor is liable for the
immediate effects of such breach, but not for any remote cause, as the failure
of a party who was to receive money, and did not receive it, in consequence of
which he was compelled to stop payment. 1 Brock. Cir. C. Rep. 103. See Remote;
and also Domat, liv. 3, t. 5, s. 2, n. 4; Toull. liv. 3, n. 286; 6 Bing. R.
716; 6 Ves. 496; Pal. Ag. by Lloyd, 10; Story, Ag. 200; 3 Sumn. R. 38.
CAUSE, pleading.The reason; the motive.
2. In a replication de injuria, for example, the plaintiff alleges that
the defendant of his own wrong, and without the cause by him in his plea
alleged, did, &c. The word cause here means without the matter of excuse
alleged, and though in the singular number, it puts in issue all the facts in
the plea, which constitute but one cause. 8 Co. 67; 11 East, 451; 1 Chit. Pl.
CAUSE, practice. A Contested question before a court of justice;
it is a Suit or action. Causes are civil or criminal. Wood's Civ. Law, 302;
Code, 2, 416. 20
CAUSE OF ACTION. By this phrase is understood the right to bring
an action, which implies, that there is some person in existence who can
assert, and also a person who can lawfully be sued; for example, where the
payee of a bill was dead at the time when it fell due, it was held the cause of
action did not accrue, and consequently the statute of limitations did not
begin to run until letters of administration had been obtained by some one. 4
2. There is no cause of action till the claimant can legally sue,
therefore the statute of limitations does not run from the making of a promise,
if it were to perform something at a future time, but only from the expiration
of that time, though, when the obligor promises to pay on demand, or generally,
without specifying day, he may be sued immediately, and then the cause of
action has accrued. 5 Bar. & Cr. 860; 8 Dowl. & R. 346.When a wrong has
been committed, or a breach of duty has occurred, the cause of action has
accrued, though the claimant may be ignorant of it. 3 Barn. & Ald. 288, 626
5 B. & C. 259; 4 C. & P. 127.
CAUTIO PRO EXPENSIS. Security for costs or expenses.
2. This term is used among the civilians, Nov. 112, c. 2, and generally
on the continent of Europe. In nearly all the countries of Europe, a foreign
plaintiff, whether resident there or not, is required to give caution pro
expenses; that is, security for costs. In some states this requisition is
modified, and, when such plaintiff has real estate, or a commercial or
manufacturing establishent within the state, he is not required to give such
caution. Faelix, Droit. Intern. Prive, n. 106.
CAUTION. A term of the Roman civil law, which is used in various
senses. It signifies, sometimes, security, or security promised. Generally
every writing is called cautio, a caution by which any object is provided for.
Vicat, ad verb. In the common law a distinction is made between a contract and
the security. The contract may be good and the security void. The contract may
be divisible, and the security entire and indivisible. 2 Burr, 1082. The
securities or cautions judicially required of the defendant, are, judicio
sisti, to attend and appear during the pendency of the suit; de rato, to
confirm the acts of his attorney or proctor; judicium solvi, to pay the sum
adjudged against him. Coop. Just. 647; Hall's Admiralty Practice, 12; 2 Brown,
Civ. Law, 356.
CAUTION, TURATORY, Scotch law. Juratory caution is that which a
suspender swears is the best he can offer in order to obtain a suspension.
Where the suspender cannot, from his low or suspected circumstances, procure
unquestionable security, juratory caution is admitted. Ersk. Pr. L. Scot. 4, 3,
CAUTIONER, Scotch law, contracts. One who becomes bound as
caution or surety for another, for the performance of any obligation or
contract contained in a deed.
CAVEAT, practice. That hebeware. Caveat is the name of a notice
given by a party having an interest, to some officer, not to do an act, till
the party giving the notice shall have been heard; as, a caveat to the register
of wills, or judge of probate, not to permit a will to be proved, or not to
grant letters of administration, until the party shall have been heard. A
caveat is also frequently made to prevent a patent for inventions being issued.
1 Bouv. Inst. 71, 534; 1 Burn's Ecc. Law, 19, 263; Bac. Abr. Executors and
Administrators, E 8; 3 Bl. Com. 246; Proctor's Pract. 68; 3 Bin. Rep. 314; 1
Siderf. 371 Poph. 133; Godolph. Orph. Leg. 258; 2 Brownl. 119; 2 Fonbl. Eq.
book 4, pt. 2, c. 1, 3; Ayl. Parer. 145 Nelson's Ab. h. t.; Dane's Ab. c. 223,
a. 15, 2, and a. 8, 22. See 2 Chit. Pr. 502, note b, for a form.
CAVEAT EMPTOR. Let the purchaser take heed; that is, let him see
to it, that the title he is buying is good. This is a rule of the common law,
applicable to the sale and purchase of lands and other real estate. If the
purchaser pay the consideration money, he cannot, as a general rule, recover it
back after the deed has been executed; except in cases of fraud, or by force of
some covenant in the deed which has been broken. The purchaser,if he fears a
defect of title, has it in his power to protect himself by proper covenants,
and if he fails to do so, the law provides for him no remedy. Cro. Jac. 197; 1
Salk. 211 Doug. 630, 654; 1 Serg. & R. 52, 53 , 445. This rule is discussed
with ability in Rawle on Covenants for Title, p. 458, et seq. c. 13, and the
leading authorities collected. See also 2 Kent, Com. Lect. 39, p. 478; 2 Bl.
Com. 451; 1 Stor , Eq. 212 6 Ves. 678; 10 Ves. 505; 3 Cranch, 270; 2 Day, R.
128; Sugd. Vend. 221 1 Bouv. Inst. n. 954-5.
2. This rule has been severely assailed, as being the instrument of
falsehood and fraud; but it is too well established to be disregarded. Coop.,
Just. 611, n. See 8 Watts, 308, 309.
CAVIL. Sophism, subtlety. Cavilis a captious argument, by which
a conclusion evidently false, is drawn from a principle evidently true: Ea est
natura cavillationis ut ab evidenter veris, per brevissimas mutationes
disputatio, ad ea quce evidentur falsa sunt perducatur. Dig. 60, 16, 177 et
233; Id. 17, 65; Id. 33, 2, 88 .
CAESARIAN OPERATION, med. juris. An incision made through the
parietes of the abdomen and uterus to extract the foetus. It is said that
Julius Caesar was born in this manner. When the child is cut out after the
death of the mother, his coming into being in this way confers on other persons
none of the rights to which they would have been entitled if he had been born,
in the usual course of nature, during her life. For example, his father would
not be tenant by the curtesy; for to create that title, it ought to begin by
the birth of issue arive, and be consummated by the death of the wife. 8 Co.
Rep. 35; 2 Bl. Com. 128 Co. Litt. 29 b.; 1 Beck's Med. Jur. 264 Coop. Med. Jur.
7; 1 Fodere, Med. Leg. 334. The rule of the civil law on this subject will be
found in Dig. lib. 50, t. 16, 1. 132 et 141; lib. 5, t. 2, 1. 6; lib. 28, t. 2,
C2ETERORUM. The name of a kind of administration, which, after
an administration has been granted for a limited purpose, is granted for the
rest of the estate. 1 Will. on Ex. 357; 2 Hagg. 62; 4 Hagg. Eccl. R. 382, 386;
4 Mann. & Gr. 398. For example, where a wife had a right to devise or
bequeath certain stock, and she made a will of the same, but there were
accumulations that did not pass, the husband might take out letters of
administration caeterorum. 4 Mann. & Grang.398;1 Curteis, 286.
TO CEDE, civil law. To assign; to transfer; as, France ceded
Louisiana to the United States.
CEDENT, civil law, Scotch law. An assignor. The term is usually
applied to the assignor of a chose in action. Kames on Eq. 43.
CELEBRATION, contracts. This word is usually applied, in law, to
the celebration of marriage, which is the solemn act by which a man and woman
take each other for husband and wife, conformably to the rules prescribed by
law. Diet. de Juris. h. t.
CELL. A small room in a prison. See Dungeon.
CENOTAPH. An empty tomb. Dig. 11, 7, 42.
CENSUS. An enumeration of the inhabitants of a country.
2. For the purpose of keeping the reeresentation of the several states
in congress equal, the constitution provides, that " representatives and direct
taxes shall be apportioned among the several states, which may be included in
this Union, according to their respective numbers; which shall be determined by
adding to the whole number of free persons, including those bound to service
for a term of years, and excluding Idians not taxed, three-fifths of all other
persons. The actual enumeration shall be made within three years after the
first meeting of the congress of the United States, and within every subsequent
term of ten years, in such a manner as they shall by law direct." Art. 1, s. 2;
vide 1 Story, L. U. S., 73, 722, 751; 2 Id. 1134, 1139, 1169, 1194; 3 Id. 1776;
4 Sharsw. continuation, 2179.
CENT, money. A copper coin of the United States of the value of
ten mills; ten of them are equal to a dime, and one hundred, to one dollar.
Each cent is required to contain one hundred and sixty-eight grains. Act of
January 18th, 1837, 4 Sharsw. cont. of Story',s L. U. S. 2524.
CENTIME. The name of a French money; the one hundredth part of a
CENTRAL. Relating to the centre, or placed in the centre; as,
the central courts of the United States, are those located in the city of
Washington, whose jurisdiction extends over the whole country. These are,
first, the Senate of the United States, when organized to try impeachments;
secondly, the Supreme Court of the United States.
2. The government of the United States is the central government.
CENTUMVIRI, civil law. the citizens of Rome were distributed
into thirty-five tribes, and three persons out of each tribe were elected
judges, who were called centumviri, although they were one hundred and five in
number. They were distributed into four different tribunals, but in certain
causes called centumvirales causas, the judgments of the four tribunals were
necessary. Vicat,.ad verb.; 3 Bl. Com. 315.
CENTURY, civil law. One hundred. The Roman people were
dividedinto centu ries. In England they were divided into hundreds. Vide
Hundred. Century also means one hundred years.
CEPI. A Latin word signifying I have taken. Cepicorpus, I have
taken the body; cepiand B. B., I have taken the body and discharged him on bail
bond; cepi corpus et est in custodia, I have taken the body and it is in
custody; cepi corpus, et est languidus, I have taken the body of, &c. and
he is sick. These are some of the various returns made by the sheriff to a writ
CEPI CORPUS, practice. The return which the sheriff, or
otherproper officer, makes when he has arrested a defendant by virtue of a
capias. 3 Bouv. Inst. n. 2804. See Capias. F. N. B. 26.
CEPIT. Took. This is a technical word, which cannot be supplied
by any other in an indictment for larceny. The charge against the defendant
must be that he took the thing stolen with a felonious design. Bac. Ab.
Indictment, G 1.
CEPIT ET ABDUXIT. He took and led away. These words are applied
to cases of trespass or larceny, where the defendant took a living chattel, and
led it away. It is used in contradistinction to took and carried away, cepit et
asportavit. (q. v.)
CEPIT ET ASPORTAVIT. Took and carried away. (q. v.)
CEPIT IN ALIO LOCO, pleadings. He took in another place. This is
a plea in replevin, by which the defendant alleges, that he took the thing
replevied in another place than that mentioned in the plaintiff's declaration.
1 Chit. Pl. 490, 4 Bouv. Inst. n. 3569 2 Chit. Pl. 558; Rast. 554, 555; Clift.
636 Willes, R. 475; Tidd's App. 686.
CERTAINTY, UNCERTAINTY, contracts. In matters of obligation, a
thing is certain, when its essence, quality, and quantity, are described,
distinctly set forth, Dig. 12, 1, 6. It is uncertain, when the description is
not that of one individual object, but designates only the kind. Louis. Code,
art. 3522, No. 8 5 Co. 121. Certainty is the mother of repose, and therefore
the law aims at certainty. 1 Dick. 245. Act of the 27th of July, 1789, ii. 2, 1
Story's Laws, 6. His compensation for his servicer, shall not exceed two
thousand dollars per annum. Gordon's Dig. art. 211.
2. If a contract be so vague in its terms, that its meaning cannot be
certainly collected, and the statute of frauds preclude the admissibility of
parol evidence to clear up the difficulty; 5 Barn. & Cr. 588; S. C. 12 Eng.
Com. L. R. 827; or parol evidence cannot supply the defect, then neither at
law, nor in equity, can effect be given to it. 1 Russ. & M. 116; 1 Ch. Pr.
3. It is a maxim of law, that, that is certain which may be made
certain; certum est quod certum reddi potest Co. Litt. 43; for example, when a
man sells the oil he has in his store at so much a gallon, although there is
uncertainty as to the quantity of oil, yet inasmuch as it can be ascertained,
the maxim applies, and the sale is good. Vide generaly, Story, Eq. El. 240 to
256; Mitf. Pl. by Jeremy, 41; Coop. Eq. Pl. 5; Wigr. on Disc. 77.
CERTAINTY, pleading. By certainty is understood a clear and
distinct statement of the facts which constitute the cause of action, or ground
of defence, so that they may be understood by the party who is to answer them,
by the jury who are to ascertain the truth of the allegations, and by the court
who are to give the judgment. Cowp. 682; Co. Litt. 308; 2 Bos. & Pull. 267;
13 East, R. 107; Com. Dig. Pleader, C 17; Hob. 295. Certainty has been stated
by Lord Coke, Co. Litt. 303, a, to be of three sorts namely, 1. certainty to a
common intent 2. to a certain intent in general; and, 3. to a certain intent in
every particular. In the case of Dovaston.v. Paine Buller, J. said he
remembered to have heard Mr. Justice Ashton treat these distinctions as a
jargon of words without meaning; 2 H. Bl. 530. They have, however, long been
made, and ought not altogether to be departed from.
2. - 1. Certainty to a common intent is simply a rule of construction.
It occurs when words are used which will bear a natural sense, and also an
artificial one, or one to be made out by argument or inference. Upon the ground
of this rule the natural sense of words is adopted, without addition. 2 H. Bl.
3. - 2. Certainty to, a certain intent in general, is a greater degree
of certainty than the last, and means what upon a fair and reasonable
construction may be called certain, without recurring to possible facts which
do not appear; 9 Johns. R. 317; and is what is required in declarations,
replications, and indictments, in the charge or accusation, and in returns to
writs of mandamus. See 1 Saund. 49, n. 1; 1 Dougl. 159; 2 Johns. Cas. 339;
Cowp. 682; 2 Mass. R. 363 by some of which authorities, it would seem,
certainty to a common intent is sufficient in a declaration.
4. - 3. The third degree of certainty, is that which precludes all
argument, inference, or presumption against the party, pleading, and is that
technical accuracy which is not liable to the most subtle and scrupulous
objections, so that it is not merely a rule of construction, but of addition;
for where this certainty is necessary, the party must not only state the facts
of his case in the most precise way, but add to them such as show that they are
not to be controverted, and, as it were, anticipate the case of his adversary.
Lawes on Pl. 54, 55. See 1 Chitty on Pl. 235 to 241.
CERTIFICATE, practice. A writing made in any court, and properly
authenticated, to give notice to another court of anything done therein; or it
is a writing by which an officer or other person bears testimony that a fact
has or has not taken place.
2. There are two kinds of certificates; those required by the law, and
those which are merely voluntary. Of the first kind are certificates given to
an insolvent of his discharge, and those given to aliens, that they have been
naturalized. Voluntary certificates are those which are not required by law,
but which are given of the mere motion of the party. The former are evidence of
the facts therein mentioned, while the latter are not entitled to any credit,
because the factscertified, may be proved in the usual way under the solemnity
of an oath or affirmation. 2 Com. Dig. 306; Ayl. Parerg. 157; Greenl. Ev.
CERTIFICATE, JUDGE'S, English practice. The judge who tries the
cause is authorized by several statutes in certain cases to certify, so as to
decide when the party or parties shall or shall not be entitled to costs. It is
of great importance in many cases, that these certificates should be obtained
at the time of trial. See 3 Camp. R. 316; 5 B. & A. 796; Tidd's Pr. 879; 3
Ch. Pr. 458, 486.
2. The Lord Chancellor often requires the opinion of the judges upon a
question of law; to obtain this, a case is trained, containing the admissions
on both sides, and upon these the legal question is stated; the case is then
submitted to the judges, who, after hearing counsel, transmit to the chancellor
their opinion. This opinion, signed by the judges of the court, is called their
certificate. See 3 Bl. Com. 453.
CERTIFICATE, ATTORNEY'S, Practice, English law. By statute 37
Geo. III., c. 90, s. 26, 28, attorneys are required to deliver to the
commissioners of stamp duties, a paper or note-in writing, containing the name
and usual place of residence of such person, and thereupon, on paying certain
duties, such person is entitled to a certificate attesting the payment of such
duties, which must be renewed yearly. And by the 30th section, an attorney is
liable to the penalty of fifty pounds for practising without.
CERTIFICATION or CERTIFICATE OF ASSISE. A term used in the old
English law, applicable to a writ granted for the reexamination or re-trial of
a matter passed by assise before justices. F. N. B. 181 3 Bl. Com. 389. The
summary motion for a new trial has entirely superseded the use of this writ,
which was one of the means devised by the judges to prevent a resort to the
remedy by attaint for a wrong verdict.
CERTIORARI, practice. To be certified of; to be informed of.
This is the name of a writ issued from a superior court directed to one of
inferior jurisdiction, commanding the latter to certify and return to the
former, the record in the particular case. Bac. Ab. h. t.; 4 Vin. Ab. 330;
Nels. Ab. h. t.; Dane's Ab. Index, h. t.; 3 Penna. R. 24. A certiorari differs
from a writ of error. There is a distinction also between a hab. corp. and a
certiorari. The certiorari removes the cause; the hab. corp. only supersedes
the proceedings in below. 2 Lord Ray. 1102.
2. By the common law, a supreme court has power to review the
proceedings of all inferior tribunals, and to pass upon their jurisdiction and
decisions on questions of law. But in general, the determination of such
inferior courts on questions of fact are conclusive, and cannot be reversed on
certiorari, unless some statute confers the power on such supreme court. 6
Wend. 564; 10 Pick. 358; 4 Halst. 209. When any error has occurred in the
proceedings of the court below, different from the course of the common law, in
any stage of the cause, either civil or criminal cases, the writ of certiorari
is the only remedy to correct such error, unless some other statutory remedy
has been given. 5 Binn. 27; 1 Gill & John. 196; 2 Mass. R. 245; 11 Mass. R.
466; 2 Virg. Cas. 270; 3 Halst. 123; 3 Pick. 194 4 Hayw. 100; 2 Greenl. 165; 8
Greenl. 293. A certiorari, for example, is the correct process to remove the
proceedings of a court of sessions, or of county commissioners in laying out
highways. 2 Binn. 250 2 Mass. 249; 7 Mass. 158; 8 Pick. 440 13 Pick. 195; 1
Overt. 131; 2 Overt. 109; 2 Pen. 1038; 8 Verm. 271 3 Ham. 383; 2 Caines,
3. Sometimes the writ of certiorari is used as auxiliary process, in
order to obtain a full return to some other process. When, for example, the
record of an inferior court is brought before a superior court by appeal, writ
of error, or other lawful mode, and there is a manifest defect, or a suggestion
of diminution, a certiorari is awarded requiring a perfect transcript and all
papers. 3 Dall. R. 413; 3 John. R. 23; 7 Cranch, R. 288; 2 South. R. 270, 551;
1 Blackf. R. 32; 9 Wheat. R. 526; 7 Halst. R. 85; 3 Dev. R. 117; 1 Dev. &
Bat. 382; 11 Mass. 414; 2 Munf. R. 229; 2 Cowen, R. 38. Vide Bouv. Inst. Index,
CESSET EXECUTIO. The staying of an execution.
2. When a judgment has been entered, there is sometimes, by the
agreement of the parties, a cesset executio for a period of time fixed upon and
when the defendant enters security for the amount of the judgment, there is a
cesset executio until the time allowed by law has expired.
CESSET PROCESSUS, practice. An entry made on the record that
there be a stay of the procas or proceedings.
2. This is made in cases where the plaintiff has become insolvent after
action brought. 2 Dougl. 627.
CESSAVIT, Eng. law. An obsolete writ, which could formerly have
been sued out when the defendant had for two years ceased or neglected to
perform such service or to pay such rent as he was bound to do by his tenure,
and had not upon his lands sufficient goods or cbattels to be distrained. F. N.
CESSIO BONORUM, civil law. The relinquishment which a debtor
made of his property for the benefit of his creditors.
2. This exempted the debtor from imprisonment, not, however, without
leaving an ignominious stain on his reputation. Dig. 2, 4, 25; Id. 48, 19, 1;
Nov. 4, c. 3, and Nov. 135. By the latter Novel, an honest unfortunate debtor
might be discharged, by simply affirming that he was insolvent, without having
recourse to the benefit of cession. By the cession the creditors acquired title
to all the property of the insolvent debtor.
3. The cession discharged the debtor only to the extent of the property
ceded, and he remained responsible for the difference. Dom. Lois Civ. liv. 4,
tit. 5., s. 1, n. 2. Vide, for the law of Louisiana, Code, art. 2166, et seq. 2
M. R. 112; 2 L. R. 354; 11 L. R. 531; 5 N. S. 299; 2 L. R. 39; 2 N. S. 108; 3
M. R. 232; 4 Wheat. 122; and Abandonment.
CESSION, contracts. Yielding up; release.
2. France ceded Louisiana to the United States, by the treaty of Paris,
of April 30, 1803 Spain made a cession of East and West Florida, by the treaty
of February 22, 1819. Cessions have been severally made of a part of their
territory, by New York, Virginia, Massachusetts, Connecticut) South Carolina,
North Carolina, and Georgia. Vide Gord. Dig. art. 2236 to 2250.
CESSION, civil law. The, act by which a party assigns or
transfers property to a other; an assignment.
CESSION, eccl. law. When an ecclesiastic is created bishop, or
when a parson takes another benefice, without dispensation, the first benefice
becomes void by a legal cession, or surrender. Cowel, h. t.
CESTUI. He. This word is frequently used in composition as,
cestui que trust, cestui que vie, &c.
CESTUI QUE TRUST, A barbarous phrase, to signify the beneficiary
of an estate held in trust. He for whose benefit another person is enfeoffed or
seised of land or tenements, or is possessed of personal property. The cestui
que trust is entitled to receive the rents and profits of the land; he may
direct such conveyances, consistent with the trust, deed or will, as he shall
choose, and the trustee (q. v.) is bound to execute them: he may defend his
title in the name of the trustee. 1 Cruise, Dig. tit. 12, c. 4, s. 4; vide Vin.
Ab. Trust, U, W, X, and Y 1 Vern. 14; Dane's Ab. Index, h. t.: 1 Story, Eq.
Jur. 321, note 1; Bouv. Inst. Index, h. t.
CESTUI QUE VIE. He for whose life land is holden by another
person; the latter is called tenant per auter vie, or tenant for another's
life. Vide Dane's Ab. Index, h. t.
CESTUI QUE USE. He to whose use land is granted to another
person the latter is called the terre-tenant, having in himself the legal
property and possession; yet not to his own use, but to dispose of it according
to the directions of the cestui que use, and to suffer him to take the profits.
Vide Bac. Read. on Stat. of Uses, 303, 309, 310. 335, 349; 7 Com. Dig. 593.
CHAFEWAX , Eng, law. An officer in chancery who fits the wax for
sealing, to the writs, commissions and other. instruments then made to be
issued out. He is probably so called because he warms (chaufe) the wax.
CHAFFERS. Anciently signified wares and merchandise; hence the
word chaffering, which is yet used for buying and selling, or beating down the
price of an article. The word is used in stat. 3 Ed. III. c. 4.
CHAIRMAN. The presiding officer of a committee; as, chairman of
the committee of ways and means. The person selected to preside over a popular
meeting, is also called a chairman or moderator.
CHALDRON. A measure of capacity, equal to fifty-eight and
two-third cubic feet nearly. Vide Measure.
CHALLENGE. This word has several significations. 1. It is an
exception or objection to a juror. 2. A call by one person upon another to a
single combat, which is said to be a challenge to fight.
CHALLENGE, criminal law. A request by one person to another, to
fight a duel.
2. It is a high offence at common law, and indictable, as tending to a
breach of the peace. It may be in writing or verbally. Vide Hawk. P. C. b. 1,
c. 63, s. 3; 6 East, R. 464; 8 East, R. 581; 1 Dana, R. 524; 1 South.. R. 40; 3
Wheel. Cr. C. 245 3 Rogers' Rec. 133; 2 M'Cord, R. 334 1 Hawks. R. 487; 1
Const. R. 107. He who carries a challenge is also punishable by indictment. In
most of the states, this barbarous practice is punishable by special laws.
3. In most of the civilized nations challenging another to fight. is a
crime, as calculated to destroy the public peace; and those who partake in the
offence are generally liable to punishment. In Spain it is punished by loss of
offices, rents, and horrors received from the king, and the delinquent is
incapable to hold them in future. Aso & Man. Inst. B. 2, t. 19, c. 2, 6.
See, generally, 6 J. J. @larsh. 120; 1 Munf. 468; 1 Russ. on Cr. 275; 6 J. J.
Marsh. 1 19; Coust. Rep. 10 7; Joy on Chal. passim.
CHALLENGE, practice. An exception made to jurors who are to pass
on a trial; to a judge; or to a sheriff.
2. It will be proper here to consider, 1. the several kinds of
challenges; 2. by whom they are to be made; 3. the time and manner of making
3. - 1. The several kinds of challenges may be divided into those which
are peremptory, and those which are for cause. 1. Peremptory challenges are
those 'which are made without assigning any reason, and which the court must
allow. The number of these which the prisoner was allowed at common law, in all
cases of felony, was thirty-five, or one under three full juries. This is
regulated by the local statutes of the different states, and the number except
in capital cases, has been probably reduced.
4. - 2. Challenges for cause are to the array or to the polls. 1. A
challenge to the array is made on account of some defect in making the return
to the venire, and is at once an objection to all the jurors in the panel. It
is either a principal challenge, that is, one founded on some manifest
partiality, or error committed in selecting, depositing, drawing or summoning
the jurors, by not pursuing the directions of the acts of the legislature; or a
challenge for favor.
5. - 2. A challenge to the polls is objection made separately to each
juror as he is about to be sworn. Challenges to the polls, like those to the
array, are either principal or to the favor.
6. First, principal challenges may be made on various grounds: 1st.
propter defectum, on account of some personal objection, as alienage, infancy,
old age, or the want of those qualifications required by legislative enactment.
2d. Propter affectum, because of some presumed or actual partiality in the
juryman who is made the subject of the objection; on this ground a juror may be
objected to, if he is related to either within the ninth degree, or is so
connected by affinity; this is supposed to bias the juror's mind, and is only a
presumption of partiality. Coxe, 446; 6 Greenl. 307; 3 Day, 491. A juror who
has conscientious scruples in finding a verdict in a capital case, may be
challenged. 1 Bald. 78. Much stronger is the reason for this challenge, where
the juryman has expressed his wishes as to the result of the trial, or his
opinion of the guilt or innocence of the defendant. 4 Harg. St. Tr. 748; Hawk.
b. 2, c. 43, s. 28; Bac. Ab. Juries, E 5. And the smallest degree of interest
in the matter to be tried is a decisive objection against a juror. 1 Bay, 229;
8 S. & R. 444; 2 Tyler, 401. But see 5 Mass. 90. 3d. The third ground of
principal challenge to the polls, is propter delictum, or the legal
incompetency of the juror on the ground of infamy. The court, when satisfied
from their own examination, decide as to the principal challenges to the polls,
without any further investigation and there is no occasion for the appointment
of triers. Co. Litt. 157, b; Bac. Ab. Juries, E 12; 8 Watts. R. 304.
7. - Secondly. Challenges to the poll for favor may be made, when,
although the juror is not so evidently partial that his supposed bias will be
sufficient to authorize. a principal challenge, yet there are reasonable
grounds to suspect that he will act under some undue influence or prejudice.
The causes for such cballenge are manifestly very numerous, and depend, on a
variety of circumstances. The fact to be ascertained is, whether the juryman is
altogether indifferent as he stands unsworn, because, even unconsciously to
himself, be may be swayed to one side. The line whicb separates the causes for
principal challenges, and for challenge to the favor, is not very distinctly
marked. That the juror has acted as godfather to the child of the prosecutor or
defendant, is cause for a principal cballenge; Co. Litt. 157, a; while the fact
that the party and the juryman are fellow servants, and that the latter has
been entertained at the house of the former, is only cause for challenge to the
favor. Co. Litt. 147; Bac. Ab. Juries, E 5. Challenges to the favor are not
decided upon by the court, but are settled by triers. (q. v.)
8. - 2. The challenges may be made by the government, or those who
represent it, or by the defendant, in criminal cases; or they may be made by
either party in civil cases.
9. - 3. As to the time of making the challenge, it is to be observed
that it is a general rule, that no challenge can be made either to the array or
to the polls, until a full jury have made their appearance, because if that
should be the case, the issue will remain pro defectu juratorum; and on this
account, the party who intends to challenge the array, may, under such a
contingency, pray a tales to complete the number, and then object to the panel.
The proper time, of challenging, is between the appearance and the swearing of
the jurors. The order of making challenges is to the array first, and should
not that be supported, then to the polls; challenging any one juror, waives the
right of challenging the array. Co. Litt. 158, a; Bac. Ab. Juries, E 11. The
proper manner of making the challenge, is to state all the objections against
the jurors at one time; and the party will not be allowed to make a second
objection to the same juror, when the first has been over-ruled. But when a
juror has been challenged on one side, and found indifferent, he may still be
challenged on the other. When the juror has been cliallenged for cause, and
been pronounced impartial, he may still be challenged peremptorily. 6 T. R.
531; 4 Bl. Com. 356; Hawk. b. 2, c. 46, s. 10.
10. As to the mode of making the challenge, the rule is, that a
challenge to the array must be in writing; but when it is only to a single
individual, the words " I challenge him " are sufficient in a civil case, or on
the part of the defendant, in a criminal case when the challenge is made for
the prosecution, the attorney-general says, We challenge him." 4 Harg. St. Tr.
740 Tr. per Pais, 172; and see Cro. C. 105; 2 Lil. Entr. 472; 10 Wentw. 474; 1
Chit. Cr. Law, 533 to 551.
11. Interest forms the only ground at common law for challenging a
judge. It is no ground of challenge that he has given an opinion in the case
before. 4 Bin. 349; 2 Bin. 454. By statute, there are in some states several
other grounds of challenge. See Courts of the U. S., 633 64.
12. The sheriff may be challenged for favor as well as affinity. Co.
Litt. 158, a; 10 Serg. &. R. 336-7. And the challenge need not be made to
the court, but only to the prothonotary. Yet the Sheriff cannot be passed by in
the direction of process without cause, as he is the proper officer to execute
writs, except in case of partiality. Yet if process be directed to the coroner
without cause, it is not void. He cannot dispute the authority of the court,
but must execute it at his peril, and the misdirection is aided by thc statutes
of amendment. 11 Serg. & R. 303.
CHAMBER. A room in a house.
2. It was formerly hold that no freehold estate could be had in a
chamber, but it was afterwards ruled otherwise. When a chamber belongs to one
person, and the rest of the house with the land is owned by another the two
estates are considered as two separate but adjoining dwelling house's. Co.
Litt. 48, b; Bro. Ab. Demand, 20; 4 Mass. 575; 6 N. H. Rep. 555; 9 Pick. R.
297; vide 3 Leon. 210; 3 Watts. R. 243.
3 . By chamber is also understood the place where an assembly is held;
and, by the use of a figure, the assembly itself is called a chamber.
CHAMBER OF COMMERCE. A society of the principal merchants and
traders of a city, who meet to promote the general trade and commerce of the
place. Some of these are incorporated, as in Philadelphia.
CHAMBERS, practice. When a judge decides some interlocutory
matter, which has arisen in the course of the cause, out of court, he is said
to make such decision at his chambers. The most usual applications at chambers
take place in relation to taking bail, and staying proceedings on process.
CHAMPART, French law. By this name was formerly understood the
grant of a piece of land by the owner to another, on condition that the latter
would deliver to him a portion of the crops. IS Toull. n. 182.
CHAMPERTOR, crim. law. One who makes pleas or suits, or causes
them to be moved, either directly or indirectly, and sues them at his proper
costs, upon condition of having a part of the gain.
CHAMPERTY, crimes. A bargain with a plaintiff or defendant,
campum partire, to divide the land or other matter sued for between them, if
they prevail at law, the champertor undertaking to carry on the suit at his own
expense. 1 Pick. 416; 1 Ham. 132; 5 Monr. 416; 4 Litt. 117; 5 John. Ch. R. 44;
7 Port. R. 488.
2. This offence differs from maintenance, in this, that in the latter
the person assisting the suitor receives no benefit, while in the former he
receives one half, or other portion, of the thing sued for. See Punishment;
Fine; Imprisonment; 4 Bl. Com. 135.
3. This was an offence in the civil law. Poth. Pand. lib. 3, t. 1; App.
n. 1, tom. 3, p. 104; 15 Ves. 139; 7 Bligh's R. 369; S. C. 20 E. C. L. R. 165;
5 Moore & P. 193; 6 Carr. & P. 749; S. C. 25 E. C. L. R. 631; 1 -Russ.
Cr. 179 Hawk. P. C. b. 1 c. 84, s. 5.
4. To maintan a defendant may be champerty. Hawk. P. C. b. 1, c. 84, s.
8 3 Ham. 541; 6 Monr. 392; 8 Yerg. 484; 8 John. 479; 1 John. Ch. R. 444;, 7
Wend. 152; 3 Cowen, 624; 6 Coaven, 90.
CHAMPION. He who fights for another, or takes his place in a
quarrel; it also includes him who fights his own battles. Bract. lib. 4, t. 2,
CHANCE, accident. As the law punishes a crime only when there is
an intention to commit it, it follows that when those acts are done in a lawful
business or pursuit by mere chance or accident, which would have been criminal
if there had been an intention, express or implied, to commit them, there is no
crime. For example, if workmen were employed in blasting rocks in a retired
field, and a person not knowing of the circumstance should enter the field, and
be killed by a piece of the rock, there would be no guilt in the workmen. 1
East, P. C. 262 Poster, 262; 1 Hale's P. C. 472; 4 Bl. Com. 192. Vide
CHANCE-MEDLEY, criminal law. A sudden affray. This word is
sometimes applied to any kind of homicide by misadventure, but in strictness it
is applicable to such killing only as happens se defendendo. (q. v.) 4 Bl. Com.
CHANCELLOR. An officer appointed to preside over a court of
chancery, invested with various powers in the several states.
2. The office of chancellor is of Roman origin. He appears, at first, to
have been a chief scribe or secretary, but he was afterwards invested with
judicial power, and had superintendence over the other officers of the empire.
From the Romans, the title and office passed to the church, and therefore every
bishop of the catholic church has, to this day, his chancellor, the principal
judge of his consistory. When the modern kingdoms of Europe were established
upon the ruins of the empire, almost every state preserved its chancellor, with
different jurisdictions and dignities, according to their different
constitutions. In all he seems to have had a supervision of all charters,
letters, and such other public instruments of the crown, as were authenticated
in the most solemn manner; and when seals came into use, he had the custody of
the public seal.
3. An officer bearing this title is to be found in most countries of
Europe, and is generally invested with extensive authority. The title and
office of chancellor came to us from England. Many of our state constitutions
provide for the appointment of this officer, who is by them, and by the law of
the several states, invested with power as they provide. Vide Encyclopedie, b.
t.; Encycl.. Amer. h. t.; Dict. de Jur. h. t.; Merl. Rep. h. t.; 4 Vin. Ab.
374; Blake's Ch. Index, h. t.; Woodes. Lect. 95.
CHANCERY. The name of a court exercising jurisdiction at law,
but mainly in equity.
2. It is not easy to determine how courts of equity originally obtained
the jurisdiction they now exercise. Their authority, and the extent of it, have
been subjects of much question, but time has firmly established them; and the
limits of their jurisdiction seem to be in a great degree fixed and
ascertained. 1 Story on Eq. ch. 2; Mitf. Pl. Introd.; Coop. Eq. Pl. Introd. See
also Butler's Reminiscences, 38, 40; 3 Bl. Com. 435; 2 Bin. 135; 4 Bin. 50; 6
Bin. 162; 2 Serg. & R. 356; 9 Serg. & R. 315; for the necessity, origin
and use of courts of chancery.
3. The judge of the court of chancery, often called a court of equity,
bears the title of chancellor. The equity jurisdiction, in England, is vested,
principally, in the high court of chancery. This court is distinct from courts
of law. " American courts of equity are, in some instances, distinct from those
of law, in others, the same tribunals exercise the jurisdiction both of courts
of law and equity, though their forms of proceeding are different in their two
capacities. The supreme court of the United States, and the circuit courts, are
invested with general equity powers, and act either as court's of law or
equity, according to the form of the process and the subject of adjudication.
In some of the states, as New York, Virginia, and South Carolina, the equity
court is a distinct tribunal, having its appropriate judge, or chancellor, and
officers. In most of the states, the two jurisdictions centre in the same
judicial officers, as in the courts of the United States; and the extent of
equity jurisdiction and proceedings is very various in the different states,
being very ample in Connecticut, New York, New Jersey, Maryland, Virginia, and
South Carolina, and more restricted in Maine, Massachusetts, Rhode Island, and
Pennsylvania. But the salutary influence of these powers on the judicial
administration generally, by the adaptation of cbancery forms and modes of
proceeding to many cases in which a court of law affords but an imperfect
remedy, or no remedy at all, is producing a gradual extension of them in those
states where they have been, heretofore, very limited."
4. The jurisdiction of a court of equity differs essentially from that
of a court of law. The remedies for wrongs, or for the enforcement of rights,
may be distinguished into two classes those which are administered in courts of
law, and those which are administered in courts of equity. The rights secured
by the former are called legal; those secured by the latter are called
equitable. The former are said to be rights and remedies at common law, because
recognized and enforced in courts of common law. The latter are said to be
rights and remedies in equity, because they are administered in courts of
equity or chancery, or by proceedings in other courts analogous to those in
courts of equity or chancery. Now, in England and America, courts of common law
proceed by certain prescribed forms, and give a general judgment for or against
the defendant. They entertain jurisdiction only in certain actions, and give
remedies according to the particular exigency of such actions. But there are
many cases in which a simple judgment for either party, without qualifications
and conditions, and particular arrangements, will not. do entire justice, ex
aequo et bono, to either party. Some modification of the rights of both parties
is required; some restraints on one side or the other; and some peculiar
adjustments, either present or future, temporary or perpetual. Now, in all
these cases, courts of common law have no methods of proceeding, which can
accomplish such objects. Their forms of actions and judgment are not adapted to
them. The proper remedy cannot be found, or cannot be administered to the full
extent of the relative rights of all parties. Such prescribed forms of actions
are not confined to our law. They were known in the civil law; and the party
could apply them only to their original purposes. In other cases, he had a
special remedy. In such cases, where the courts of common law cannot grant the
proper remedy or relief, the law of England and of the United States (in those
states where equity is administered) authorizes an application to the courts of
equity or chancery, which are not confined or limited in their modes of relief
by such narrow regulations, but which grant relief to all parties, in cases
where they have rights, ex aequo et bono, and modify and fashion that relief
according to circumstances. The most general description of a court of equity
is, that it has jurisdiction in cases where a plain, adequate and complete
remedy cannot be had at law that is, in common law courts. The remedy must be
plain; for, if it be doubtful and obscure at law, equity will assert a
jurisdiction. So it must be adequate at law; for, if it fall short of what the
party is entitled to, that founds a jurisdiction in equity. And it must be
complete; that is, it must attain its full end at law it must reach the whole
mischief and secure the whole right of the party, now and for the future
otherwise equity will interpose, and give relief. The jurisdiction of a court
of equity is sometimes concurrent with that of courts of, law and sometimes it
is exclusive. It exercises concurrent jurisdiction in cases where the rights
are purely of a legal nature, but where other and more efficient aid is
required than a court of law can afford, to meet the difficulties of the case,
and ensure full redress. In some of these cases courts of law formerly refused
all redress but now will grant it. But the jurisdiction having been once justly
acquired at a time when there was no such redress at law, it is not now
relinquished. The most common exercise of concurrent jurisdiction is in cases
of account, accident, dower, fraud, mistake, partnership, and partition. The
remedy is here often more complete and effectual than it can be at law. In many
cases falling under these heads, and especially in some cases of fraud, mistake
and accident, courts of law cannot and do not afford any redress; in others
they do, but not always in so perfect a manner. A court of equity also is
assistant to the jurisdiction of courts of law, in many cases, where the latter
have no like authority. It will remove legal impediments to the fair decisiou
of a question depending at law. It will prevent a party from improperly setting
up, at a trial, some title or claim, which would be inequitable. It will compel
him to discover, on his own oath, facts which he knows are material to the
rights of the other party, but which a court of law cannot compel the party to
discover. It will perpetuate the testmony of witnesses to rights and titles,
which are in danger of being lost, before the, matter can be tried. It will
provide for the safety of property in dispute pending litigation. It will
counteract and control, or set aside, fraudulent judgments. It will exercise,
in many cases, an exclusive jurisdiction. This it does in all cases of morely
equitable rights, that is, such rights as are not recognized in courts of law.
Most cases of trust and confidence fall under this head. Its exclusive
jurisdiction is also extensively exercised in granting special relief beyond
the reach of the common law. It will grant injunctions to prevent waste, or
irreparable injury, or to secure a settled right, or to prevent vexatious
litigations, or to compel the restitution of title deeds; it will appoint
receivers of property, where it is in danger of misapplication it will compel
the surrender of securities improperly obtained; it will prohibit a party from
leaving the country in order to avoid a suit it will restrain any undue
exercise of a legal right, against conscience and equity; it will decree a
specific performance of contracts respecting real estates; it will, in many
cases, supply the imperfect execution of instruments, and reform and alter them
according to the real intention of the parties; it will grant relief in cases
of lost deeds or securities; and, in all cases in which its interference is
asked, its general rule is, that he who asks equity must do equity. If a party,
therefore, should ask to have a bond for a usurious debt given up, equity could
not decree it, unless he could bring into court the money honestly due without
usury. This is a very general and imperfect outline of the jurisdiction of a
court of equity; in respect to which it has been justly remarked, that, in
matters within its exclusive jurisdiction, where substantial justice entitles
the party to relief, but the positive law is silent, it is impossible to define
the boundaries of that jurisdiction, or to enumerate, with precision, its
various principles." Ency. Am. art. Equity. Vide Fonb. Eq.; Story on Eq.; Madd.
Ch. Pr.; 10 Amer. Jur. 227; Coop. Eq. Pl.; Redesd. Pl.; Newl. Cb. Practice;
Beame's Pl. Eq.; Jeremy on Eq.; Encycl. Amer. article Equity, Court.
CHANGE. The exchange of money for money. The giving, for
example, dollars for eagles, dimes for dollars, cents for dimes. This is a
contract which always takes place in the same place. By change is also
understood small money. Poth. Contr. de Change, n. 1.
CHANGE TICKET. The name given in Arkansas to a species of
promissory notes issued for the purpose of making change in small transactions.
Ark. Rev. Stat. cb. 24.
CHAPLAIN. A clergyman appointed to say prayers and perform
divine service. Each house of congress usually appoints it own cbaplain.
CHAPMAN. One whose business is to buy and sell goods or other
things. 2 Bl. Com. 476.
CHAPTER, eccl. law. A congregation of clergymen. Such an
assembly is termed capitulum, which signifies a little head it being a kind of
head, not only to govern the diocese in the vacation of the bishopric, but also
for other purposes. Co. Litt. 103.
CHARACTER, evidence. The opinion generally entertained of a
person derived from the common re 'port of the people who are acquainted with
him. 3 Serg. & R. 336; 3 Mass. 192; 3 Esp. C. 236.
2. There are three classes of cases on which the moral character and
conduct of a person in society may be used in proof before a jury, each resting
upon particular and distinct grounds. Such evidence is admissible, 1st. To
afford a presumption that a particular party has not been guilty of a criminal
act. 2d. To affect the damages in particular cases, where their amount depends
on the character and conduct of any individual; and, 3d. To impeach or confirm
the veracity of a witness.
3. - 1. Where the guilt of an accused party is doubtful, and the
character of the supposed agent is involved in the question, a presumption of
innocence arises from his former conduct in society, as evidenced by his
general character, since it is not probable that a person of known probity and
humanity, would commit a dislionest or outrageous act in the particular
instance. Such presumptions, however, are so remote from fact, and it is
frequently so difficult to estimate a person's real character, that they20are
entitled to little-weight, except in doubtful cases. Since the law considers a
presumption of this nature to be admissible, it is in principle admissible
'Whenever a reasonable presumption arises from it, as to the fact in question;
in practice it is admitted whenever the character of the party is involved in
the issue. See 2 St. Tr. 1038 1 Coxes Rep. 424; 5 Serg. & R. 352 3 Bibb, R.
195; 2 Bibb, R. 286; 5 Day, R. 260; 5 Esp. C. 13; 3 Camp. C. 519; 1 Camp. C.
460; Str. R. 925. Tha. Cr. Cas. 230; 5 Port. 382.
4. - 2. In some instances evidence in disparagement of character is
admissible, not in order to prove or disprove the commission of a particular
fact, but with a view to damages. In actions for criminal conversation with the
plaintiff's wife, evidence may be given of the wife's general bad character,
for want of chastity, and even of particular acts of adultery committed by her,
previous to her intercourse with the defendant. B. N. P. 27, 296; 12 Mod. 232;
3 Esp. C. 236. See 5 Munf. 10. In actions for slander and libel, when the
defendant has not justified, evidence of the plaintiff's bad character has also
been admitted. 3 Camp. C. 251; 1 M. & S. 284; 2 Esp. C. 720; 2 Nott &
M'Cord, 511; 1 Nott & M'Cord, 268; and see 11 Johns. R. 38; 1 Root, R. 449;
1 Johns. R. 46; 6 Penna. St. Rep. 170. The ground of admitting such evidence
is, that a person of disparaged fame is not entitled to the same measure of
damages with one whose character is uublemished. When, however, the defendant
justifies the slander, it seems to be doubtful whether the evidence of reports
as to the conduct and character of the plaintiff can be received. See 1 M.
& S. 286, n (a) 3 Mass. R. 553 1 Pick. R. 19. When evidence is admitted
touching the general character of a party, it is manifest that it is to be
confined to matters in reference to the nature of the, charge against him. 2
5. - 3. The party against whom a witness is called, may disprove the
fact& stated by him, or may examine other witnesses as to his general
character; but they will not be allowed to speak of particular facts or parts
of his conduct. B. N. P. 296. For example, evidence of the general character of
a prosecutrix for a rape, may be given, as that she was a street walker; but
evidence of specific acts of criminality cannot be admitted. 3 Carr. & P.
589. The regular mode is to inquire whether the witness under examination has
the means of knowing the former witness general character, and whether from
such knowledge he would believe, him on his oath. 4 St. Tr. 693; 4 Esp. C. 102.
In answer to such evidence against character, the other party may cross-examine
the witness as to his means of knowledge, and the grounds of his opinion; or he
may attack such witness general character, and by fresh evidence support the
character of his own. 2 Stark. C. 151; Id. 241; St. Ev. pt. 4, 1753 to 1758; 1
Phil. Ev. 229. A party cannot give evidence to confirm the good character of a
witness, unless his general character has been impugned by his antagonist. 9
Watts, R. 124. See, in general, as to character, Phil. Ev. Index, tit.
Character; Stark. Ev. pl. 4, 364 Swift's Ev. 140 to 144 5 Ohio R. 227; Greenl.
Ev. 54; 3 Hill, R. 178 Bouv. Inst. Index, h. t.
CHARGE, practice. The opinion expressed by the court to the
jury, on the law arising out of a case before them.
2. It should contain a clear and explicit exposition of the law, when
the points of the law in dispute arise out of the facts proved on the trial of
the cause; 10 Pet. 657; but the court ought at no time to undertake to decide
the facts, for these are to be decided by the jury. 4 Rawle's R. 195; 2 Penna.
R. 27; 4 Rawle's R. 356 Id. 100; 2 Serg. & Rawle, 464; 1 Serg. & Rawle,
515; 8 Serg. & Rawle, 150. See 3 Cranch, 298; 6 Pet. 622 1 Gall. R. 53; 5
Cranch, 187; 2 Pet. 625; 9 Pet. 541.
CHARGE, contracts. An obligation entered into by the owner of an
estate which makes the estate responsible for its performance. Vide 2 Ball
& Beatty, 223; 8 Com. Dig. 306, Appendix, h. t. Any obligation binding upon
him who enters into it, which may be removed or taken away by a discharge. T.
de la Ley, h. t.
2. That particular kind of commission which one undertakes to perform
for another, in keeping the custody of his goods, is called a charge.
CHARGE. wills, devises. An obligation which a testator imposes
on his devisee; as, if the testator give Peter, Blackacre, and direct that he
shall pay to John during his life an annuity of one hundred dollars, which
shall be a charge" on said land; or if a legacy be and directed to be paid out
of the real property. 1 Rop. Leg. 446. Vide 4 Vin. Ab. 449; 1 Supp. to Ves. jr.
309; 2 Id. 31; 1 Vern. 45, 411; 1 Swanst. 28; 4 East, R. 501; 4 Ves. jr. 815;
Domat, Loix Civ. liv. 3, t. 1, s. 8, n.
CHARGE' DES AFFAIRES or CHARGE' D'AFFAIRES, internationat law.
These phrases, the first of which is used in the acts of congress, are
2. The officer who bear; this title is a diplomatic representative or
minister of an inferior grade, to whose care are confided the affairs of his
nation. He has not the title of minister, and is generally introduced and
admitted through a verbal presentation of the minister, at his departure, or
through letters of credence addressed to the minister of state of the court to
which they are sent. He has the essential rights of a minister. Mart. Law of
Nat. 206; 1 Kent, Com. 39, n.; 4 Dall. 321.
3. The president is authorized to allow to any, charge des affaires a
sum not greater than at the rate of four thousand five hundred dollars per
annum, as a compensation for his personal services and expenses. Act of May 1,
1810, 2 Story's Laws U. S. 1171.
CHARGER, Scotch law. He in whose favor a decree suspended is
pronounced; vet a decree may be suspended before a charge is given on it. Ersk.
Pr. L. Scot. 4, 3, 7.
CHARGES. The term charges signifies the expenses which have been
incurred in relation either to a transaction or to a suit; as the charges
incurred for his benefit must be paid by a hirer; the defendant must pay the
charges of a suit. The term charges, in relation to actions, includes something
more than the costs, technically called.
CHARITY. In its widest sense it denotes all the good affections
which men ought to bear towards each other; 1 Epistle to Cor. c. xiii.; in its
most restricted and usual sense, it signifies relief to the poor. This species
of charity is a mere moral duty, which cannot be enforced by the law. Kames on
Eq. 17. But it is not employed in either of these senses in law; its
signification is derived chiefly from the statute of 43 Eliz. c. 4. Those
purposes are considered charitable which are enumerated in that act, or which
by analogy are deemed within its spirit and intendment. 9 Ves. 405; 10 Ves,
541; 2 Vern. 387; Shelf. Mortm. 59. Lord Chancellor Camden describes a charity
to be a gift to a general public use, which extends to the rich as well as to
the poor. Ambl. 651; Boyle on Charities, 51; 2 Ves. sen. 52; Ambl. 713; 2 Ves.
jr. 272; 6 Ves. 404; 3 Rawle, 170; 1 Penna. R. 49 2 Dana, 170; 2 Pet. 584; 3
Pet. 99, 498 9 Cow. 481; 1 Hawks, 96; 12 Mass. 537; 17 S. & R. 88; 7 Verm.
241; 5 Harr. & John. 392; 6 Harr. & John. 1; 9 Pet. 566; 6 Pet. 435; 9
C-ranch, 331; 4 Wheat. 1; 9 Wend. 394; 2 N. H. Rep. 21, 510; 9 Cow. 437; 7
John. Cb. R. 292; 3 Leigh. 450; 1 Dev. Eq. Rep. 276; 4 Bouv. Inst. n. 3976, et
CHARRE OF LEAD, Eng. law, commerce. A quantity of lead
consisting of thirty pigs, each pig containing six stones wanting two pounds,
and every stone being twelve pounds. Jacob.
CHARTA. An ancient word which signified not only a charter or
deed in writing, but any signal or token by which an estate was held.
CHARTA CHYROGRAPIHATA VEL COMMUNIS. Signifies an indenture.
Shep. Touch. 50; Beames, Glanv. 197-8; Fleta, lib. 3, c. 14, 3. It was so
called, because each party had a part.
CHARTA DE UNA PARTE. A deed of one part; a deed poll.
2. Formerly, this phrase was used to distinguish, a deed poll, which is
an agreement made by one party only, that is, only one of the parties does any
act which is binding upon him, from a deed inter partes. Co. Litt. 229. Vide
Deed poll; Indenture; Inter partes.
CHARTER. A grant made by the sovereign either to the whole
people or to a portion of them, securing to them the enjoyment of certain
rights. Of the former kind is the late charter of France, which extended to the
whole country; the charters which were granted to the different American
colonies by the British government were charters of the latter species. 1
Story, Const. L. 161; 1 Bl. Com. 108 Encycl. Amer. Charte Constitutionelle.
2. A charter differs from a CONSTITUTION in this, that the former is
granted by the sovereign, while the latter is established by the people
themselves: both are the fundamental law of the land.
3. This term is susceptible of another signification. During the middle
ages almost every document was called carta, charta, or chartula. In this sense
the term is nearly synonymous with deed. Co. Litt. 6; 1 Co. 1; Moor. Cas.
4. The act of the legislature creating a corporation, is called its
charter. Vide 3 Bro. Civ. and Adm. Law, 188; Dane's Ab. h. t.
CHARTER, mar. contr. An agreement by which a vessel is hired by
the owner to another; as A B chartered the ship Benjamin Franklin to C D.
CHARTER-LAND, Eng. law. Land formerly held by deed under certain
rents and free services, and it differed in nothing from free socage land. It
was also called bookland. 2 Bl. Com. 90.
CHARTER-PARTY, contracts. A contract of affreightment in
writing, by which the owner of a ship or other vessel lets the whole, or a part
of her, to a merchant or other person for the conveyance of goods, on a
particular voyage, in consideration of the payment of freight. This term is
derived from the fact, that the contract which bears this name, was formerly
written on a card, and afterwards the card was cut into two parts from top to
bottom, and one part was delivered to each of the parties, which was produced
when required, and by this means counterfeits were prevented.
2. This instrument ought to contain, 1. the name and tonnage of the
vessel; 2. the name of the captain; 3. the names of the letter to freight and
the freighter; 4. the place and time agreed upon for the loading and discharge;
5. the price of the freight; 6. the demurrage or indemnity in case of delay; 7.
such other conditions as the parties may agree upon. Abbott on Ship. pt. 3, c.
1, s. 1 to 6; Poth. h. t. n. 4; Pardessus, Dr. Coin. pt. 4, t. 4, c. 1, n.
3. When a ship is chartered, this instrument serves to authenticate many
of the facts on which the proof of her neutrality must rest, and should
therefore be always found on board chartered ships. 1 Marsh. Ins. 407 . When
the goods of several merchants unconnected with each other, are laden on board
without may particular contract of affreightment with any individual for the
entire ship; the vessel is called a general ship, (q. v.) because open to all
merchauts. but where one Or more merchants contract for the ship exclusively,
it is said to be a chartered ship. 3 Kent, Com. 158. Abbott, Ship. pt. 2, c. 2,
S. 1 Harr. Dig. Ship and Shipping, iv.
CHARTERED SHIP. When a ship is hired or freighted by one or more
merchants for a particular voyage or on time, it is called a chartered ship. It
is freighted by a special contract of affreightment, executed between the
owners, ship's husband, or master on the one hand, and the merchants on the
other. It differs, from a general ship. (q. v.)
CHARTIS REDDENDIS, Eng. law. An ancient writ, now obsolete,
which lays against one who had charters of feoffment entrusted to his keeping,
and who refused to deliver them. Reg. Orig. 159. CHASE, Eng. law. The liberty
of keeping beasts of chase, or royal gaine, on another man's ground as well as
on one's own ground, protected even from the owner of the land, with a power of
hunting them thereon. It differs from a park, because it may be on another's
ground, and because it is not enclosed. 2 Bl. Com. 38.
CHASE, property. The act of acquiring possession of animals
ferae naturae by force, cunning or address. The hunter acquires a right to such
animals by occupancy, and they become his property. 4 Toull. n. 7. No man has a
right to enter on the lands of another for the purpose of hunting, without his
consent. Vide 14 East, R. 249 Poth. Tr. du Dr. de Propriete, part 1, c. 2, art.
CHASTITY. That virtue which prevents the unlawful commerce of
2. A woman may defend her chastity by killing her assailant. See
Self-defence. And even the solicitation of her chastity is indictable in some
of the states; 7 Conn. 267; though in England, and perhaps elsewhere, such act
is not indictable. 2 Chit. Pr. 478. Words charging a woman with a violation of
chastity are actionable in themselves. 2 Conn. 707.
CHATTELS, property. A term which includes all hinds of property,
except the freehold or things which are parcel of it. It is a more extensive
term than goods or effects. Debtors taken in execution, captives, apprentices,
are accounted chattels. Godol. Orph. Leg. part 3, chap. 6, 1.
2. Chattels are personal or real. Personal, are such as belong
immediately to the person of a man; chattels real, are such as either appertain
not immediately to the person, but to something by way of dependency, as a box
with the title deeds of lands; or such as are issuing out of some real estate,
as a lease of lands, or term of years, which pass like personally to the
executor of the owner. Co. Litt. 118; 1 Chit. Pr. 90; 8 Vin. Ab. 296; 11 Vin.
Ab. 166; 14 Vin. Ab. 109; Bac. Ab. Baron, &c. C 2; 2 Kent, Com. 278; Dane's
Ab. Index, h. t.; Com. Dig. Biens, A; Bouv. Inst. Index, h. t.
CHEAT, criminal law, torts. A cheat is a deceitful practice, of
a public nature, in defrauding another of a known right, by some artful device,
contrary to the plain rules of common honesty. 1 Hawk. 343.
2. To constitute a cheat, the offence must be, lst. of a public nature
for every species of fraud and dishonesty in transactions between individuals
is not the subject-matter of a criminal charge at common law; it must be such
as is calculated to defraud numbers, and to deceive the people in general. 2
East, P. C. 816; 7 John. R. 201; 14 John. R. 371; 1 Greenl. R. 387; 6 .Mass. R.
72; 9 Cowen, R. 588; 9 Wend. R. 187; 1 Yerg. R. 76; 1 Mass. 137. 2. The
cheating must be done by false weights, false measures, false tokens, or the
like, calculated to deceive numbers. 2 Burr, 1125; 1 W. Bl. R. 273; Holt, R.
3. That the object of the defendant in defrauding the prosecutor was
successful. If unsuccessful, it is a mere attempt. (q. v.) 2 Mass. 139. When
two or more enter into an agreement to cheat, the offence is a conspiracy. (q.
v.) To call a man a cheat is slanderous. Hetl. 167; 1 Roll's Ab. 53; 2 Lev. 62.
Vide Illiterate; Token.
CHECK, contracts. A written order or request, addressed to a
bank or persons carrying on the banking business, and drawn upon them by a
party having money in their hands, requesting them to pay on presentment to a
person therein named or to bearer, a named sum of money.
2. It is said that checks are uniformly payable to bearer Chit. on
Bills, 411; but that is not so in practice in the United States. they are
generally payable to bearer, but sometimes they are payable to order.
3. Cheeks are negotiable instruments, as bills of exchange; though,
strictly speaking, they are due before payment has been demanded, i$n which
respect they differ from promissory notes and bills of exchange payable on a
particular day. 7 T. R. 430.
4. The differences between a common check and a bill of exchange, are,
First, that a check may be taken after it is overdue, and still the holder is
not subject to the equities wbich may exist between the drawer and the party
'from whom he receives it; in the case of bills of exchange, the holder is
subject to such equity. 3 John. Cas. 5, 9; 9 B. & Cr. 388. Secondly, the
drawer of a bill of exchange is liable only on the condition that it be
presented in due time, and, if it be dishonored, that he has had notice; but
such is not the case with a check, no delay will excuse the drawer of it,
unless he has suffered some loss or injury on that account, and then only pro
tanto. 3 Kent, Com. 104 n. 5th ed.; 8 John. Cas. 2; Story, Prom. Notes,
5. There is a kind of check known by the name of memorandum cheeks;
these are given in general with an understanding that they are not to be
presented at the bank on which they are drawn for payment; and, as between the
parties, they have no other effect than an IOU, or common due bill; but third
persons who become the holders of them, for a valuable consideration, without
notice, have all the rights which the holders of ordinary cheeks can lawfully
claim. Story, Prom. Notes, 499.
6. Giving a creditor a cheek on a bank does not constitute payment of a
debt. 1 Hall, 56, 78; 7 S. & R. 116; 2 Pick. 204; 4 John. 296. See 3 Rand.
481. But a tender was held good when made by a check contained in a letter,
requesting a receipt in return, which the plaintiff sent back, demanding a
larger sum, without objecting to the nature of the tender. 3 Bouv. Inst. n.
7. A cheek delivered by a testator in his lifetime to a person as a
gift, and not presented till after his death, was considered as a part of his
will, and allowed to be proved as such. 3 Curt. Ecc. R. 650. Vide, generally,4
John. R. 304; 7 John. R. 26; 2 Ves. jr. 111; Yelv. 4, b, note; 7 Serg. &
Rawle, 116; 3 John. Cas. 5, 259; 6 Wend. R. 445; 2 N. & M. 251; 1 Blackf.
R. 104; 1 Litt. R. 194; 2 Litt. R. 299; 6 Cowen, R. 484; 4 Har. & J. 276;
13 Wend. R. 133; 10 Wend. R. 304; 7 Har. & J. 381; 1 Hall, R. 78; 15 Mass.
R. 74; 4 Yerg. R. 210; 9 S. & R. 125; 2 Story, R. 502; 4 Whart. R. 252.
CHECK BOOK, commerce. One kept by persons who have accounts in
bank, in which are printed blank forms of cheeks, or orders upon the bank to
CHEMISTRY med. jur. The science which teaches the nature and
property of all bodies by their analysis and combination. In considering cases
of poison, the lawyer will find a knowledge of chemistry, even very limited in
de ree, to be greatly useful. 2 Cbit. Pr. 42, n.
CHEVISANCE, contracts, torts. This is a French word, which
signifies in that language, accord, agreement, compact. In the English statutes
it is used to denote a bargain or contract in general. In a legal sense it is
taken for an unlawful bargain or contract.
CHIEF, principal. One who is put above the rest; as, chief
magistrate chief justice : it also signifies the best of a number of things. It
is frequently used in composition.
CHIEF CLERK OF THE DEPARTMENT OF STATE. This officer is
appointed by the secretary of state; his duties are to attend to the business
of the ofFice under the superintendence of the secretary; and when the
secretary shall be removed from office, by the president, or in any other case
of vacancy, shall, during such vacancy, have the charge and custody of all
records, books and papers appertaining to such department,
CHIEF JUSTICE, officer. The president of a supreme court; as the
chief justice of the United States, the chief justice of Pennsylvania, and the
-like. Vide 15 Vin. Ab. 3.
CHIEF JUSTICIARY. An officer among the English, established soon
after the conquest.
2. He had judicial power, and sat as a judge in the Curia Regis. (q. v.)
In the absence of the king, he governed the kingdom. In the course of time, the
power and distinction of this officer gradually diminished, until the reign of
Henry III, when the office was abolished.
CHILD, CHILDREN, domestic relations. A child is the son or
daughter in relation to the father or mother.
2. We will here consider the law, in general terms, as it relates to the
condition, duties, and rights of children; and, afterwards, the extent which
has been given to the word child or children by dispositions in wills and
3. - 1. Children born in lawful wedlock, or within a competent time
afterwards, are presumed to be the issue of the father, and follow his
condition; thoseborn out of lawful wedlock, follow the condition of the mother.
The father is bound to maintain his children and to educate them, and to
protect them from injuries. Childrenare, on their part, bound to maintain their
fathers and mothers, when in need, and they are of ability so to do. Poth. Du
Marriage, n. 384, 389. The father in general is entitled to the custody of
minor children, but, under certain circumstances, the mother will be entitled
to them, when the father and mother have separated. 5 Binn. 520. Children are
liable to the reasonable correction of their parents. Vide Correction
4. - 2 The term children does not ordinarily and properly speaking
comprehend grandchildren, or issue generally; yet sometimes that meaning is,
affixed to it, in cases of necessity; 6 Co. 16; and it has been held to signify
the same as issue, in cases where the testator, by using the terms children and
issue indiscriminately, showed his intention to use the former term in the
sense of issue, so as to entitle grandchildren, & c., to take under it. 1
Ves. sen. 196; Ambl. 555; 3 Ves. 258; Ambl. 661; 3 Ves. & Bea. 69. When
legally construed, the term children is confined to legitimate children. 7 Ves.
458. The civil code of Louisiana, art. 2522, n. 14, enacts, that "under the,
name of children are comprehended, not only children of the first degree, but
the grandchildren, great-grand-children, and all other descendants in the
5. Children are divided into legitimate children, or those born in
lawful wedlock; and natural or illegitimate children, who are born bastards.
(q. v.) Vide Natural Children. Illegitimate children are incestuous bastards,
or those which are not incestuous.
6. Posthumous children are those who are born after the death of their
fathers. Domat, Lois Civ. liv. prel. t. 2, s. 1, 7 L. 3, 1, ff de inj.
7. In Pennsylvania, the will of their fathers, in, which no provision is
made for them, is revoked, as far as regards them, by operation of law. 3 Binn.
R. 498. See, as to the law of Virginia on this subject, 3 Munf. 20, and article
In ventre sa mere. Vide, generally, 8 Vin. Ab. 318; 8 Com. Dig. 470; Bouv.
Inst. Index, h. t.; 2 Kent, Com. 172; 4 Kent, Com. 408, 9; 1 Rop. on Leg. 45 to
76; 1 Supp. to Ves. jr. 442 Id. 158; Natural children.
CHILDISHNESS. Weakness of intellect, such as that of a
2. When the childishness is so great that a man has lost his memory, or
is incapable to plan a proper disposition of his property, he is unable to make
a will. Swinb. part. 11, 1; 6 Co. 23. See 9 Conn. 102; 9 Phil. R. 57.
CHIMIN. This is a corruption of the French word chemin, a
highway. It is used by old writers. Com. Dig. Chimin.
CHINESE INTEREST. Interest for money charged in China. In a case
where a note was given in China, payable eighteen months after date, without,
any stipulation respecting interest, the court allowed the Chinese interest of
one per cent. per month, from the expiration of the eighteen months. 2 Watts
& Serg. 227, 264.
CHIROGRAPH, conveyancing. Signifies a deed or public instrument
in writing. Chirographs were anciently attested by the subscription and crosses
of witnesses; afterwards, to prevent frauds and concealments, deeds of mutual
covenant were made in a script and rescript, or in a part and counterpart; and
in the middle, between the two copies, they drew the capital letters of the
alphabet, and then tallied, or cut asunder in an indented manner, the sheet or
skin of parchment, oneof which parts being delivered to each of the parties,
were proved authentic by matching with and answering to one another. Deeds thus
made were denominated syngrapha, by the canonists, because that word, instead
of the letters of the alphabet, or the word chirographum, was used. 2 Bl. Com.
296. This method of preventing counterfeiting, or of detecting counterfeits, is
now used by having some ornament or some word engraved or printed at one end of
certificates of stocks, checks, and a variety of other instruments, which are
bound up in a book, and after they are executed, are cut asunder through such
ornament or word.
2. Chirograph is also the last part of, a fine of land, commonly called
the foot of the fine. It is an instrument of writing beginning with these.
words: " This is the final agreement," &c. It includes the whole matter,
reciting the parties, day, year and place, and before Whom the fine was
acknowledged and levied. Cruise, Dig. tit. 35, c. 2, s. 52. Vide Chambers'
Diet. h. t.; Encyclopaedia Americana, Charter; Encyclopedie de D'Alembert, h.
t.; Pothier, Pand. tom. xxii. p. 73.
CHIROGRAPHER. A word derived from the Greek, which signifies "a
writing with a man's hand." A chirographer is an officer of the English court
of C. P.who engrosses the fines, and delivers the indentures of them to the
CHIVALRY, ancient Eng. law. This word is derived from the French
chevelier, a horseman. It is. the name of a tenure of land by knight's service.
Chivalry was of two kinds: the first; which was regal, or held only of the
king; or common, which was held of a common person. Co. Litt. h. t.
CHOICE. Preference either of a person or thing, to one of
several other persons or things. Election. (q. v.)
CHOSE, property. This is a French word, signifying thing. In
law, it is applied to personal property; as choses in possession, are such
personal things of which one has possession; choses in action, are such as the
owner has not the possession, but merely a right of action for their
possession. 2 Bl. Com. 889, 397; 1 Chit. Pract. 99; 1 Supp. to Ves. Jr. 26, 59.
Chitty defines choses in actions to be rights to receive or recover a debt, or
money, or damages for breach of contract, or for a tort connected with
contract, but which cannot be enforced without action, and therefore termed
choses, or things in action. Com. Dig. Biens; Harr. Dig. Chose in
ActionChitty's Eq. Dig. b. t. Vide 1 Ch. Pr. 140.
2. It is one of the qualities of a chose in action, that, at common law,
it is not assignable. 2 John. 1; 15 Mass. 388; 1 Crancb, 367. But bills of
exchange and promissory notes, though choses in action, may be assigned by
indorsement, when payable to order, or by delivery when payable to bearer. See
Bills of Exchange.
3. Bonds are assignable in Pennsylvania, and perhaps some other states,
by virtue of statutory provisions.Inequity, however, all choses in action are
assignable and the assignee has an equitable right to enforce the fulfilment of
the obligation in the name of the assignor. 4 Mass. 511; 3 Day. 364; 1 Wheat.
236; 6 Pick. 316 9 ow. 34; 10 Mass. 316; 11 Mass. 157, n. 9 S. & R. 2441; 3
Yeates, 327; 1 Binn. 429; 5 Stew. & Port. 60; 4 Rand. 266; 7 Conn. 399; 2
Green, 510; Harp. 17; Vide, generally, Bouv. Inst. Index, h. t.
4. Rights arising ex delicto are not assignable either at law or in
CHRISTIANITY. The religion established by Jesus Christ.
2. Christianity has been judicially declared to be a part of the common
law of Pennsylvania; 11 Serg. & Rawle, 394; 5 Binn. R.555; of New York, 8
Johns. R. 291; of Connecticut, 2 Swift's System, 321; of Massachusetts, Dane's
Ab. vol. 7, c. 219, a. 2, 19. To write or speak contemptuously and maliciously
against it, is an indictable offence. Vide Cooper on the Law of Libel, 59 and
114, et seq.; and generally, 1 Russ. on Cr. 217; 1 Hawk, c. 5; 1 Vent. 293; 3
Keb. 607; 1 Barn. & Cress. 26. S. C. 8 Eng. Com. Law R. 14; Barnard. 162;
Fitzgib. 66; Roscoe, Cr. Ev. 524; 2 Str. 834; 3 Barn. & Ald. 161; S. C. 5
Eng. Com. Law R. 249 Jeff. Rep. Appx. See 1 Cro. Jac. 421 Vent. 293; 3 Keb.
607; Cooke on Def. 74; 2 How. S. C. 11-ep. 127, 197 to 201.
CHURCH. In a moral or spiritual sense this word signifies a
society of persons who profess the Christian religion; and in a physical or
material sense, the place where such. persons assemble. The term church is
nomen collectivum; it comprehends the chancel, aisles, and body of the churcb.
Ham. N. P. 204.
2. By the English law, the terms church or chapel, and church-yard, are
expressly recognized as in themselves correct and technical descriptions of the
building and place, even in criminal proceedings. 8 B. & C. *25; 1 Salk.
256; 11 Co. 25 b; 2 Esp. 5, 28.
3. It is not within the plan of this work to give an account of the
different local regulations in the United States respecting churches.
References are here given to enable the inquirer to ascertain what they are,
where such regulations are known to exist. 2 Mass. 500; 3 Mass. 166; 8 Mass.
96; 9 Mass. 277; Id. 254; 10 Mass. 323; 15 Mass. 296 16 Mass. 488; 6 Mass. 401;
10 Pick. 172 4 Day, C. 361; 1 Root 3, 440; Kirby, 45; 2 Caines' Cas. 336; 10
John. 217; 6 John. 85; 7 John. 112; 8 John. 464; 9 John. 147; 4 Desaus. 578; 5
Serg. & Rawle, 510; 11 Serg. & Rawle, 35; Metc. & Perk. Dig. h. t.;
4 Whart. 531.
CHURCH-WARDEN. An officer whose duties are, as the name implies,
to take care of, or guard the church.
2. These officers are created in some ecclesiastical corporations by the
charter, and their rights and duties are definitely explained.In England, it is
said, their principal duties are to take care of, 1. the church or building; 2.
the utensils and furniture; 3. the church-yard; 4. - matters of good order
concerning the church and church-yard; 5. the endowments of the church. Bac.
Ab. h. t. By the common law, the capacity of church-wardens to hold property
for the church, is limited to personal property. 9 Cranch, 43.
CINQUE PORTS, Eng. law. Literally, five ports. The name by which
tho five ports of Hastings, Ramenhale, Hetha or Hethe, Dover, and Sandwich, are
known. 2. These ports have peculiar charges and services imposed upon them, and
were entitled to certain privileges and liberties. See Harg. L. Tr.
CIPHER. An arithmetical character, used for numerical notation.
Vide Figures, and 13 Vin. Ab. 210; 18 Eng. C. L. R. 95; 1 Ch. Cr. Law, 176.
2. By cipher is also understood a mode of secret writing. Public
ministers and other public agents frequently use ciphers in their
correspondence, and it is sometimes very useful so to correspond in times of
war. A key is given to each minister before his departure, namely, the cipher
for writing ciphers, (chiffre chiffrant,) and the cipher for deciphering
(chiffre dechiffrant.) Besides these, it is usual to give him a common cipher,
(chiffre banal,) -which is known to all the ministers of the same power, who
occasionally use it in their correspondence with each other.
3. When it is suspected that, a cipher becomes known to the cabinet
where the minister is residing, recourse is had to a preconcerted sign in order
to annul, entirely or in part, what has been written in cipher, or rather to
indicate that the contents are to be understood in an inverted or contrary
sense. A cipher of reserve is also employed in extraordinary cases.
CIRCUIT COURT. The name of a court of the United States, which
has both civil and criminal jurisdiction. In several of the states there are
courts which bear this name. Vide Courts of the United States.
CIRCUITY OFACTION, practice, remedies. It is where a party, by
bringing an action, gives an action to the defendant against him.
2. As, supposing the obligee of a bond covenanted that he would not sue
on it; if he were to sue he would give an. action against himself to the
defendant for a breach of his covenant. The courts prevent such circuitous
actions, for it is a maxim of law, so to judge of contracts as to prevent a
multiplicity of actions; and in the case just put, they would hold that the
covenant not to sue operated as a release. 1 T. R. 441. It is a favorite object
of courts of equity to prevent a multiplicity of actions. 4 Cowen, 682.
CIRCUITS. Certain divisions of the country, appointed for
particular judges to visit for the trial of causes, or for the administration
of justice. See 3 Bl. Com. 58; 3 Bouv. Inst. n. 2532.
CIRCULATING MEDIUM. By this term is understood whatever is used
in making payments, as money, bank notes, or paper which passes from hand to
hand in payment of goods, or debts.
CIRCUMDUCTION, Scotch law. A term applied to the time allowed
for bringing proof of allegiance, which being elapsed, if either party sue for
circumduction of the time of proving, it has the effect that no proof can
afterwards be brought; and the cause must be determined as it stood when
circumduction was obtained. Tech. Dict.
CIRCUMSTANCES, evidence. The particulars which accompany a
2. The facts proved are either possible or impossible, ordinary and
probable, or extraordinary and improbable, recent or ancient; they may have
happened near us, or afar off; they are public or private, permanent or
transitory, clear and simple, or complicated; they are always accompanied by
circumstances which more or less influence the mind in forming a judgment. And
in some instances these circumstances assume the character of irresistible
evidence; where, for example, a woman was found dead in a room, with every mark
of having met with a violent death, the presence of another person at thescene
of action was made manifest by the bloody mark of a left hand visible on her
left arm. 14 How. St. Tr. 1324. These points ought to be carefully examined, in
order to form a correct opinion. The first question ought to be, is the fact
possible ? If so, are there any circumstances which render it impossible ? If
the facts are impossible, the witness ought not to be credited. If, for
example, a man should swear that he saw the deceased shoot himself with his own
pistol, and upon an examination of the ball which killed him, it should be
found too large to enter into the pistol, the witness ought not to be credited.
1 Stark. Ev. 505; or if one should swear that another had been guilty of an
3. Toullier mentions a case, which, were it not for the ingenuity of the
counsel, would require an apology for its introducion here, on account of its
length. The case was this: La Veuve Veron brought an action against M. de
Morangies on some notes, which the defendant alleged were fraudulently
obtained, for the purpose of recovering 300,000 francs, and the question was,
whether the defendant had received the money. Dujonquai, the grandson of the
plaintiff, pretended he had himself, alone and on foot, carried this sum in
gold to the defendant, at his hotel at the upper end of the rue Saint Jacques,
in thirteen trips, between half-past seven and about one o'clock, that is, in
about five hours and a half, or, at most, six hours. The fact was improbable;
Linquet, the counsel of the defendant, proved it was impossible; and this is
4. Dujonquai said that he had divided the sum in thirteen bags, each
containing six hundred louis d'ors, and in twenty-three other bags, each
containing two hundred. There remained twenty-five louis to complete the whole
sum, which, Dujonquai said, he received from the defendant as a gratuity. At
each of 'these trips, he says, he put a bag, containing two hundred louis, that
is, about three pounds four ounces, in each of his coat pockets, which, being
made in the fashion of those times, hung about the thighs, and in walking must
have incommoded him and obstructed his speed; he took, besides, a bag
containing six hundred louis in his arms; by this means his movements were
impeded by a weight of near ten pounds.
5. The measured distance between the house where Dujonquai took the bags
to the foot of the stairs of the defendant, "as five hundred and sixteen
toises, which, multiplied by twenty-six, the thirteen trips going and
returning, make thirteen thousand four hundred and sixteen toises, that is,
more than five leagues and a half (near seventeen miles), of two thousand four
hundred toises, which latter distance is considered sufficient for an hour's
walk, of a good walker. Thus, if Dujonquai had been unimpeded by any obstacle,
he would barely have had time to perform the task in five or six hours, even
without taking any rest orrefreshment. However strikingly improbable this may
have been, it was not physically impossible. But
6.- 1. Dujonquai, in going to the defendant's, had to descend
sixty-three steps from his grandmother's, the plaintiff's chamber, and to
ascend twenty-seven to that of the defendant, in the whole, ninety steps. In
return ing, the ascent and descent were changed, but the steps were the same;
so that by multiplying, by twenty-six, the number of trips going and returning,
it would be seen tbere were two thousand three hundred and forty steps.
Experience had proved that in ascending to the top of the tower of Notre Dame
(a church in Paris), where there are three hundred and eighty-nine steps, it
occupied from eight to nine minutes of time. It must then have taken an hour
out of the five or six which had been employed in making the thirteen
7.-2. Dujonquai had to go up the rue Saint Jacques, which is very steep;
its ascent would necessarily decrease the speed of a man, burdened and
encumberedwith the bags which he carried in his pockets and in his arms.
8.-3. This street, which is very public, is usually, particularly in the
morning, encumbered by a multitude of persons going in every direction, so that
a person going along must make an infinite number of deviations from a direct
line; each by itself, is almost imperceptible, but at the end of five or six
hours, they make a considerable sum, which may be estimated at a tenth part of
the whole course in a straight line; this would make about half a league, to be
added to the five and a half leagues, which is the distance in a direct
9. - 4. On the morning that Dujonquai made these trips, the daily and
usual incumbrances of this street were increased by sixty or eighty workmen,
who were employed in removing by hand and with machine, an enormous stone,
intended for the church of Saint Genevieve, now the pantheon, and by the
immense crowd which this attracted; this was a remarkable eircumstance, which,
supposing that Dujonquai had not yielded to the temptation of stopping a few
moments to see what was doing, must necessarily have impeded his way, and made
him lose seven or eight minutes each trip, which, multiplied by twenty-six
would make about two hours and a half.
10. - 5. The, witness was obliged to open and shut the doors at the
defendant's house; it required time to take up the bags and place them in his
pockets, to take them out and put them on the defendant's table, who, by an
improbable supposition, counted the money in the intervals between the trips,
and not in the presence of the witness. Dujonquai, too, must have taken
receipts or acknowledgments at each trip, he must read them, and on arriving at
home, deposited them in some place of safety all these distractions would
necessarily occasion the loss of a few minutes. By adding these with scrupulous
nicety, and by further adding the time employed in taking and depositing the
bags, the opening and shutting of the doors, the reception of the receipts, the
time occupied in reading and putting them away, the time consumed in several
conversations, which he admitted he had with persons in the street; all these
joined to the obstacles above mentioned, made it evident that it was physically
impossible that Dujonquai should have carried the 300,000 francs to the house
of the defendant, as he affirmed he had done. Toull. tom. 9, n. 241, p. 384.
Vide, gencrally, 1 Stark. Ev. 502; 1 Phil. Ev. 116. See some curious cases of
circumstantial evidence in Alis. Pr. Cr. Law, 313, 314; and 2 Theorie des Lois
Criminelles, 147, n.; 3 Benth. Jud. Ev. 94, 223; Harvey's Meditations on the
Night, note 35; 1 Taylor's Med. Jur. 372; 14 How. St. Tr. 1324; Theory of
Presumptive Proof, passim; Best on Pres. SSSS 187, 188, 197. See Death;
CIRCUMSTANDIBUS, persons, practice. Bystanders from whom jurors
are to be selected when the panel has been exhausted. Vide Tales de
CIRCUMVENTION, torts, Scotch law. Any act of fraud whereby a
person is reduced to a deed by decreet. Tech. Dict. It has the same sense in
the civil law. Dig. 50, 17, 49 et 155; Id. 12, 6, 6, 2; Id. 41, 2, 34. Vide
CITATIO AD REASSUMENDAM CAUSAM, civil law. The name of a
citation, which issued when a party died pending a suit, against the heir of
the defendant, or when the plaintiff died, for the heir of the plaintiff. Our
bill of revivor is probably borrowed from this proceeding.
CITATION, practice. A writ issued out of a court of competent,
jurisdiction, commanding a person therein named to appear and do something
therein mentioned, or to show cause why he should not, on a day named. Proct.
Pr. h. t. In the ecclesiastical law, the citation is the beginning and
foundation of the whole cause; it is said to have six requisites, namely.: the
insertion of the name of the judge; of the promovert; of the impugnant; of the
cause of suit; of the place; and of the time of appearance; to which may be
added the affixing the seal of the court, and the name of the register or his
deputy. 1 Bro. Civ. Law, 453-4; Ayl. Parer. xliii. 175; Hall's Adm. Pr. 5;
Merl. Rep. h. t. By, citation is also understood the act by which a person is
summoned, or cited.
CITATION OF AUTHORITIES. The production or reference to the text
of acts of legislatures and of treatises, and decided cases, in order to
support what is advanced.
2. Works are sometimes surcharged with useless and misplaced citations;
when they are judiciously made, they assist the reader in his researches.
Citations ought not to be made to prove what is not doubted; but when a
controverted point is mooted, it is highly proper to cite the laws and cases,
or other authorities in support of the controverted proposition.
3. The mode of citing statutes varies in the United States; the laws of
the United States are generally cited by their date, as the act of Sept. 24,
1789, s. 35; or act of 1819, eh. 170, 3 Story's U. S. Laws, 1722. In
Pennsylvania, acts of assembly are cited as follows: act of 14th of April,
1834; in Massachusetts, stat. of 1808, c. 92. Treatises and books of reports,
are generally cited by the volume and page, as, 2 Powell on Morts. 600; 3 Binn.
R. 60. Judge Story and some others, following the examples of the civilians,
have written their works and numbered the paragraphs; these are cited as
follows: Story's Bailm. 494; Gould on Pl. c. 5, 30. For other citaions the
reader is referred to the article Abbreviations.
4. It is usual among the civilians on the continent of Europe, in
imitation of those in the darker ages, in their references to the Institutes,
the Code and the Pandects or Digest, to mention the number, not of the book,
but of the law, and the first word of the title to which it belongs; and as
there are more than a thousand of these, it is no easy task for one not
thoroughly acquainted with those collections, to find the place to which
reference is made. The American writers generally follow the natural mode of
reference, by putting down the name of the collection, and then the number of
the book, title, law, and section. For example, Inst. 4, 15, 2, signifies
Institutes, book four, title fifteen, and section two; Dig. 41, 9, 1, 3, means
Digest, book 41, title 9, law 1, section 3; Dig. pro dote, or ff pro dote, that
is, section 3, law 1, of the book and title of the Digest or Pandects, entitled
pro dote. It is proper to remark, that Dig. and ff are equivalent; the former
signifies Digest, and the latter, which is a careless mode of writing the Greek
letter it, the first letter of the word pavdectai, Pandects, and the Digest and
Pandects are different names for one and the same thing. The Code is cited in
the same way. The Novels are cited by their number, with tbat of the chapter
and paragraph; for example, Nov. 185, 2, 4; for Novella Justiniani 185, capite
2, paragrapho 4. Novels are also quoted by the Collation, the title, chapter,
and paragraph as follows: in Authentics, Collatione 1 titulo 1, cap. 281. The
Authentics are quoted by their first words, after which is set down the title
of the Code under which they are placed for example, Authentica cum testator,
Codice ad legem fascidiam Sele Mackel. Man. Intro. 66. Modus Legendi
Abbreviaturas passim in jure tam civili quam pontificii occurrentes, 1577.
CITIZEN, persons. One who, under the constitution and laws of
the United States, has a right to vote for representatives in congress, and
other public officers, and who is qualified to fill offices in the gift of the
people. In a more extended sense, under the word citizen, are included all
white persons born in the United States, and naturalized persons born out of
the same, who have not lost their right as such. This includes men, women, and
2. Citizens are either native born or naturalized. Native citizens may
fill any office; naturalized citizens may be elected or appointed to any office
under the constitution of the United States, except the office of president and
vice-president. The constitution provides, that " the citizens of each state
shall be entitled to all the privileges and immunities of citizens in the
several states." Art. 4, s. 2.
3. All natives are not citizens of the United States; the descendants of
the aborigines, and those of African origin, are not entitled to the rights of
citizens. Anterior to the adoption of the constitution of the United States,
each state had the right to make citizens of such persons as it pleased. That
constitution does not authorize any but white persons to become citizens of the
United States; and it must therefore be presumed that no one is a citizen who
is not white. 1 Litt. R. 334; 10 Conn. R. 340; 1 Meigs, R. 331.
4. A citizen of the United States, residing in any state of the Union,
is a citizen of that state. 6 Pet. 761 Paine, 594;1 Brock. 391; 1 Paige, 183
Metc. & Perk. Dig. h. t.; vide 3 Story's Const. 1687 Bouv. Inst. Index, b.
t.; 2 Kent, Com. 258; 4 Johns. Ch. R. 430; Vatt. B. 1, c. Id, 212; Poth. Des
Personnes, tit. 2, s. 1. Vide Body Politic; Inhabitant.
CITY, government. A town incorporated by that name. Originally,
this word did not signify a town, but a portion of mankind who lived under the
same government: what the Romans called civitas, and, the Greeks polis; whence
the word politeia, civitas seu reipublicae status et administratio. Toull. Dr.
Civ. Fr. 1. 1, t. 1, n. 202; Henrion de Pansey, Pouvoir Municipal, pp. 36,
CIVIL. This word has various significations. 1. It is used in
contradistinction to barbarous or savage, to indicate a state of society
reduced to order and regular government; thus we speak of civil life, civil
society, civil government, and civil liberty
2. It is sometimes used in contradistinction to criminal, to indicate
the private rights and remedies of men, as members of the community, in
contrast to those which are public and relate to the government; thus we speak
of civil process and criminal process, civil jurisdiction and criminal
3. It is also used in contradistinction to military or ecclesiastical,
to natural or foreign; thus we speak of a civil station, as opposed to a
military or ecclesiastical stationa civil death as opposed to a natural death;
a civil warasopposed to a foreign war. Story on the Const. 789; 1 Bl. Coin. 6,
125, 251; Montesq. Sp. of Laws, B 1, c. 3; Ruth. Inst. B. 2, c. 2; Id. ch. 3Id.
ch. 8, p. 359; Hein. Elem. Jurisp. Nat. B. 2, ch. 6.
CIVIL ACTION. In New York, actions are divided only into two
kinds, namely, criminal and civil. A criminal action is prosecuted by the
state, as a party, against a person charged with a public offence, for the
punishment thereof. Every other action is a civil action. Code of Procedure, s.
4, 5, 6; 3 Bouv. Inst. n. 2638. In common parlance, however, writs of mandamus,
certiorari, habeas corpus, &c., are not comprised by the expression, civil
actions. 6 Bin. Rep. 9.
CIVIL COMMOTION. Lord Mansfield defines a civil commotion to be
"an insurrection of the people for general purposes, though it may not amount
to rebellion where there is an usurped power." 2 Marsh. lnsur. 793. In the
printed proposals which are considered as making a part of the contract of
insurance against fire, it is declared that the insurance company will not make
good any loss happening by any civil commotion.
CIVIL DEATH, persons. The change of the state (q. v.) of a
person who is declared civilly dead by judgment of a competent tribunal. In
such case, the person against whom such sentence is pronounced is considered
dead. 2 John. R. 218. See Gilb. Uses, 150; 2 Bulst. 188; Co. tit. 132; Jenk.
Cent. 250; 1 Keble, 398; Prest. on Convey. 140. Vide Death, civil.
CIVIL LAW. The municipal code of the Romans is so called. It is
a rule of action, adopted by mankind in a state of society. It denotes also the
municipal law of the land. 1 Bouv. Inst. n. 11. See Law, civil.
CIVIL LIST. The sum which is yearly paid by the state to its
monarch, and the domains of which he is suffered to have the enjoyment.
CIVIL OBLIGATION, Civil law. One which binds in law, vinculum
juris, and which may be enforeed in a court of justice. Poth. Obl. 173, and
191. See Obligation.
CIVIL OFFICER. The constitution of the United States, art. 2, s.
4, provides, that the president, vice-president, and civil officers of the
United States, shall be removed from office on impeachment for, and conviction
of treason, bribery, or other high crimes and misdemeanors. By this term
areincluded all officers of the United States who hold their appointments under
the national government, whether their duties are executive or judicial, in the
highest or the lowest departments; of the government, with the exception of
officers of the army and navy. Rawle on the Const. 213; 2 Story, Const. 790; a
senator of the United States, it was decided, was not a civil officer, within
the meaning of this clause in the constitution. Senate Journals, 10th January,
1799; 4 Tuck. Bl. Com. Appx. 57, 58; Rawle, Const. 213; Serg. on Const. Law,
376; Story, Const. 791.
CIVIL REMEDY, practice. This term is used in opposition to the
remedy given by indictment in a criminal case, and signifies the remedy which
the law gives to the party against the offender.
2. In cases of treason and felony, the law,, for wise purposes, suspends
this remedy in order to promote the public interest, until the wrongdoer shall
have been prosecuted for the public wrong. 1 Miles, Rep. 316-17; 12 East, 409;
R. T. H. 359; 1 Hale's P. C. 546; 2 T. R. 751, 756; 17 Ves. 329; 4 Bl. Com.
363; Bac. Ab. Trepass, E 2; and Trover, D. This principle has been adopted in
New Hampshire N. H. R. 239; but changed in New York by statutory provision; 2
Rev. Stat. 292, 2 and by decisions in Massachusetts, except perhaps in felonies
punishable with death; 15 Mass. R. 333; in Ohio; 4 Ohio R. 377; in North
Carolina; 1 Tayl. R. 58. By the common law, in cases of homicide, the civil
remedy is merged in the felony. 1 Chit. Pr. 10. Vide art. Injuries; Merger.
CIVIL STATE. The union of individual men in civil society under
a system of laws and a magistracy, or magistracies, charged with the
administration of the laws. It is a fundamental law of the civil state, that no
member of it shall undertake to redress or avenge any violation of his rights,
by another person, but appeal to the constituted authorities for that purpose,
in all cases in which is is possible for him to do so. Hence the citizens are
justly considered as being under the safeguard of the law. 1 Toull. n. 201.
CIVILIAN. A doctor, professor, or student of the civil law.
CIVILITER. Civilly; opposed to criminaliter or criminally.
2. When a person does an unlawful act injurious to another, whether with
or without an intention to commit a tort, he is responsible civiliter. In order
to make him liable criminaliter, he must have intended to do the wrong; for it
is a maxim, actus non facit reum nisi mens sit rea. 2 East, 104.
CIVILITER MORTUUS. Civilly dead; one who is considered as if he
were naturally dead, go far as his rights are concerned.
CLAIM. A claim is a challenge of the ownership of a thing which
a man has not in possession, and is wrongfully withheld by another. Plowd. 359;
Wee i Dall.444; 12 S. & R. 179.
2. In Pennsylvania, the entry on of the demand of a mechanic or
materialman for work done or material furnished in the erection of a building,
in those counties to which the lien laws extend, is called a claim.
3. A continual c1aim is a claim made in a particular way, to preserve
the' rights of a feoffee. See Continual claim.
4. Claim of conusance is defined to be an intervention by a third
person, demanding jurisdiction of a cause against a plaintiff, who has chosen
to commence his action out of the claimant's court. 2 Wils. 409; 1 Cit. Pb.
403; Vin. Ab. Conusance; Com. Dig. Courts, P; Bac. Ab. Courts, D 3; 3 Bl. Com.
CLAIMANT. In the courts of admiralty, when the suit is in rem,
the cause is entitled in the Dame of the libellant against the thing libelled,
as A B v. Ten cases of calico and it preserves that title through the whole
progress of the suit.When a person is authorized and admitted to defend the
libel, he is called the claimant. The United States v. 1960 bags of coffee; 8
Cranch, R. 398; United States v. The Mars; 8 Cranch, R. 417; 30 hhds. of sugar,
(Brentzon, claimant, v. Boyle. 9 Cranch, R. 191.
CLANDESTINE. That which is done in secret and contrary to
2.Generally a clandestine act in case of the limitation of actions will
prevent the act from running. A clandestine marriage is one which has been
contracted without the form which the law has prescribed for this important
contract. Alis. Princ. 543
CLARENDON. The constitutions of Clarendon were certain statutes
made in the reign of Henry H., of England, in a parliament holden at Clarendon,
by which the king cheeked the power of the pope and his clergy. 4 Bl. Com.
CLASS. The order according to which are arranged or distributed,
or are supposed to be arranged or distributed, divers persons or things; thus
we say, a class of legatees.
2. When a legacy is given to a class of individuals, all who answer the
description at the time the will takes effect, are entitled; and though the
expression be in the plural, yet if there be but one, he shall take the whole.
3 M'Cord, Ch. R. 440.
3. When a bond is given to a class of persons, it is good, and all
composing that class are entitled to sue upon it; but if the obligor be a
member of such class, the bond is void, because a man cannot be obligor and
obligee at the same-time; as, if a bond be given to the justices of the county
court, and at the time the obligor is himself one of said justices. 3 Dev. 284,
287,289; 4 Dev. 882.
4. When a charge is made against a class of society, a profession, an
order or body of men, and cannot possibly import a personal application to
private injury, no action lies; but if any one of the class have sustained
special damages inconsequence of such charge, he may maintain an action. 17
Wend. 52, 23, 186. See 12 John. 475. When the charge is against one of a class,
without designating which, no action lies; as, where three persons had been
examined as witnesses, and the defendant said in addressing himself to them, "
one of you three is perjured." 1 Roll. Ab. 81; Cro. Jac. 107; 16 Pick. 132.
CLAUSE, contracts. A particular disposition which makes part of
a treaty; of an act of the legislature; of a deed, written agreement, or other
written contract or will. When a clause is obscurely written, it ought to be
construed in such a way as to agree with what precedes and what follows, if
possible. Vide Dig. 50, 17, 77; Construction; Interpretation.
CLAUSUM FREGIT, torts, remedies. He broke the close. These words
are used in a writ for an action of trespass to real estate, the defendant
being summonedto answer quare clausum fregit, that is, why he broke the close
of the plaintiff. 3 Bl. Com. 209.
2. Trespass quare clausum fregit lies for every unlawful intrusion into
land, whether enclosed or not, though only grass may be trodden. 1 Dev. &
Bat. 371. And to maintain this action there must be a possession in the
plaintiff, and a right to that possession.9 Cowen 39; 4 Yeates, 418; 11 Conn.
60, 10 Conn. 225; 1 John. 511; 12 John. 1834 Watts, 377; 4 Bibb, 218; 15 Pick.
32; 6 Rand. 556; 2 Yeates, 210; 1 Har. & John. 295; 8 Mass. 411.
CLEARANCE, com. law. The name of a certificate given by the
collector of a port, in which is stated the master or commander (naming him) of
a ship or vessel named and described, bound for a port, named, and having on
board goods described, has entered and cleared his ship or vessel according to
2. The Act of Congress of 2d March, 1790, section 93, directs, that the
master of any vessel bound to a foreign place, shall deliver to the collector
of the dis ot from which such vessel shall be about to depart, a manifest of
all the cargo on board, and the value thereof, by him subscribed, and shall
swear or affirm to the truth thereof; whereupon the collector shall grant a
clearance for such vessel and her cargo; but without specifying the particulars
thereof in such clearance, unless required by the master so to do. And if any
vessel bound to any foreign place shall depart on her voyage to such foreign
place, without delivering such a manifest and obtaining a clearance, the master
shall forfeit and pay the sum of five hundred dollars for every such offence.
Provided, anything to the contrary notwithstanding, the collectors and other
officers of the customs shall pay due regard to the inspection laws of the
states in which they respectively act, in such manner, that no vessel having on
board goods liable to inspection, shall be cleared out, until the master or
other person shall have produced such certificate, that all such goods have
been duly inspected, as the laws of the respective states do or may require, to
be produced to the collector or other officer of the customs. And provided,
that receipts for the payment of all legal fees which shall have accrued on any
vessel, shall, before any clearance is granted, be produced to the collector or
other officer aforesaid .
3. According to Boulay-Paty, Dr. Com. tome 2, p. 19, the clearance is
imperiously demanded for the safety of the vessel; for if a vessel should be
found without it at sea, it may be legally taken and brought into some port for
adjudication, on a charge of priacy. Vide Ship's papers.
CLEARING HOUSE, com. law. Among the English bankers, the
clearing house is a place in Lombard street, in London, where the bankers of
that city daily settle with each other the balances which they owe, or to which
they are entitled. Desks are placed around the room, one of which is
appropriated to each bankiug house, and they are: occupied in alphabetical
order. Each clerk has a box or drawer along side of him, and the name of the
house he represents is inscribed over his head. A clerk of each house comes in
about half-past three o'clock in the afternoon, and brings the drafts or cheeks
on the other bankers, which have been paid by his house that day, and deposits
thein in their proper drawers. The clerk at the desk credits their accounts
separately which they have against him, as found in the drawer. Balances are
thus struck from all the accounts, and the claims transferred from one to
another, until they are so wound up and cancelled, that each clerk has only to
settle with two or three others, and the balances are immediately paid. When
drafts are paid at so late an hour that they cannot be cleared that day, they
are sent to the houses on which they are drawn, to be marked, that is, a
memorandum is made on them, and they are to be cleared the next day. See
Gilbert's Practical Treatise on Banking, pp. 16-20, Babbage on the Economy of
Machines, n. 173, 174; Kelly's Cambist; Byles, on Bills, 106, 110; Pulling's
Laws and Customs of London, 437.
CLEMENCY. The disposition to treat with leniency. See Mercy;
CLEMENTINES, eccl. law. The name usually given to the collection
of decretals or constitutious of Pope Clement V., which was made by order of
John XXII. his successor, who published it in 1317. The death of Clement V.,
which happened in 1314, prevented him from publishing this collection, which is
properly a compilation, as well of the epistles and constitutions of this pope,
as of the decrees of the council of Vienna, over which he presided. The
Clementines are divided in five books, in which the matter is distributed
nearly upon the same plan as the Decretals of Gregory IX. VideLa Bibliotheque
des auteurs ecclesiastiques, par Dupin.
CLERGY. All who are attached to the ecclesiastical ministry are
called the clergy; a clergyman is therefore an ecclesiastical minister.
2. Clergymen were exempted by the emperor Constantine from all civil
burdens. Baronius ad ann. 319, 30. Lord Coke says, 2 Inst. 3, ecclesiastical
persons have more and greater liberties than other of the king's subjects,
wherein to set down all, would take up a whole volume of itself.
3. In the United States the clergy is not established by law, but each
congregation or church may choose its own clergyman.
CLERICAL ERROR. An error made by a clerk in transcribing or
otherwise. This is always readily corrected by the court. 2. An error, for
example, in the teste of a fi. fa.; 4 Yeates, 185, 205; or in the teste and
return of a vend. exp.; 1 Dall. 197 or in writing Dowell forMcDowell. 1 Serg.
& R. 120; 8 Rep. 162 a; 9 Serg. & R. 284, 5. An error is amendable
where there is something to amend by, and this even in a criminal case. 2 Bin.
5-16; 5 Burr. 2667; 1 Bin. 367-9; Dougl. 377; Cowp. 408. For the party ought
not to be harmed by the omission of the clerk; 3 Bin. 102; even of his
signature, if he affixes the seal. 1 Serg. & R. 97.
CLERK, commerce, contract. A person in the employ of a merchant,
who attends only to a part of his business, while the merchant himself
superintends the whole. He differs from a factor in this, that the latter
wholly supplies the place of his principal in respect to the property consigned
to him. Pard. Dr. Com. n. 38, 1 Chit. Pract. 80; 2 Bouv. Inst. n. 1287.
CLERK, officer. A person employed in an office, public or
private, for keeping records or accounts. His business is to write or register,
in proper form, the transactions of the tribunal or body to which he belongs.
Some clerks, however, have little or no writing to do in their offices, as, the
clerk of the market, whose duties are confined chiefly to superintending the
markets. In the English law, clerk also signifies a clergyman.
CLERK, eccl. law. Every individual, who is attached to the
ecclesiastical state, and who has submitted to the ceremony of the tonsure, is
CLIENT, practice. One who employs and retains an attorney or
counsellor to manage or defend a suit or action in which he is a party, or to
advise him about some legal matters.
2. The duties of the client towards his counsel are, 1st. to give him a
written authority, 1 Ch. Pr. l9; 2. to disclose his case with perfect candor3.
to offer spontaneously, advances of money to his attorney; 2 Ch. Pr. 27; 4. he
should, at the end of the suit, promptly pay his attorney his fees. Ib. His
rights are, 1. to be diligently served in the management of his business 2. to
be informed of its progress and, 3. that his counsel shall not disclose what
has been professionally confided to him. See Attorney at law; Confidential
CLOSE. Signifies the interest in the soil, and not merely a
close or enclosure in the common acceptation of the term. Doct. & Stud. 307
East, 207 2 Stra. 1004; 6 East, 1541 Burr. 133 1 Ch. R. 160.
2. In every case where one man has a right to exclude another from his
land, the law encircles it, if not already enclosed, with an imaginary fence;
and entitles him to a compensation in damages for the injury he sustains by the
act of another passing through his boundary, denominating the injurious act a
breach of the enclosure. Hamm. N. P. 151; Doct. & Stud. dial. 1, c. 8, p.
30; 2 Whart. 430.
3. An ejectment will not lie for a close. 11 Rep. 55; 1 Rolle's R. 55
Salk. 254 Cro. Eliz. 235; Adams on Eject. 24.
CLOSE ROLLS, or close writs, Eng. law. Writs containing, grants
from the crown, to particular persons, and for particular purposes, and, not
being intended for public inspection, are closed up and sealed on the outside,
and for that reason called close writs ,in contradistinction. to grants
relating to the public in general, which are left open and not sealed up, and
are called letters patent. (q. v.) 2 Bl. Com. 346.
CLOSED DOORS. Signifies that something is done privately. The
senate sits with closed doors on executive business.
2. In general the legislative business of the country is transacted
openly. And the constitution and laws require that courts of justice shall be
open to the public.
CLUB. An association of persons.It differs from a partnersbip in
this, that the members of a club have no authority to bind each other further
than they are authorized, either expressly or by implication, as each other's
agents in the particular transaction; whereas in trading associations, or
common partnerships, one partner may bind his co-partners, as each has a right
of property in the whole. 2 Mees. & Welsb. 172; Colly, Partn. 31; Story,
Partn. 144; Wordsworth on Joint Stock Companies, 154, et seq.; 6 W. & S.
67; 3, W. & S. 118.
CO. A prefix or particle in the nature of an inseparable
proposition, signifying with or in conjunction. Con and the Latin cum are
equivalent, as, co-executors, co-obligor. It is also used as an abbreviation
for company as, John Smith & Co.
COADJUTOR, eccl. law. A fellow helper or assistant; particularly
applied to the assistant of a bishop.
COAL NOTE, Eng. law. A species of promissory note authorized by
the st. 3 Geo. H., c. 26, SSSS 7 and 8, which, having these words expressed
therein, namely, " value received in coals," are to be protected and noted as
inland bills of exchange.
COALITION, French law. By this word is understood an unlawful
agreement among several persons, not to do a thing except on some conditions
2. The most usual coalitions are, 1st. those which take place among
master workmen, to reduce, diminish or fix at a low rate the wages of
journeymen and other workmen; 2d. those among workmen or journeymen, not to
work except at a certain price. These offences are punished by fine and
imprisonment. Dict. de Police, h. t. In our law this offence is known by the
name of conspiracy. (q. v.)
CO-ADMINISTRATOR. One of several administrators. In general,
they have, like executors, the power to act singly to the personal estate of
the intestate. Vide Administrator.
CO-ASSIGNEE. One who is assignee with another.
2. In general, the rights and duties of co-assignees are equal.
CO-EXECUTOR. One who is executor of a will in company with
another. In general each co-executor has the full power over the personal
estate of the testator, that all the executors have jointly. Vide Joint
Executors. But one cannot bring suit without joining with the others.
COAST. The margin of a country bounded by the sea. This term
includes the natural appendages of the territory which rise out of the water,
although they are not of sufficient firmness to be inhabited or fortified.
Shoals perpetually covered with water are not, however, comprehended under the
name of coast. The small islands, situate at the mouth of the Mississippi,
composed of earth and trees drifted down by the river, which are not of
consistency enough to support the purposes of life, and are uninhabited, though
resorted to for shooting birds, were held to form a part of the coast. 5 Rob.
Adm. R. 385. (c).
COCKET, commerce. In England the office at the custom house,
where the goods to be exported are entered, is so called, also the custom house
seal, or the parchment sealed and delivered by the officers of customs to
merchants, as a warrant that their goods are customed. Crabbe's Tech. Dict.
COCKETTUM, commerce. In the English law this word signifies, 1.
the custom- house seal; 2. the office at the custom where cockers are to be
procured. Crabbe's Tech. Dict.
CODE, legislation. Signifies in general a collection of laws. It
is a name given by way of eminence to a collection of such laws made by the
legislature. Among the most noted may be mentioned the following:
CODES, Les Cing Codes; French law. The five codes.
2. These codes are, 1st. Code Civil, which is divided into three books;
book 1, treats of persons, and of the enjoyment and privation of civil rights;
book 2, of property and its different modifications; book 3, of the different
ways of acquiring property. One of the most perspicuous and able, commentators
on this code is Toullier, frequently citedin this work.
3. - 2d. Code de procedure civille, which is divided into two parts.
Part 1, is divided into five books; 1. of justices of the. peace; 2. of
inferior tribunals; 3. of royal courts; 4. of extraordinary means of
proceeding; 5. of execution and judgment. Part 2, is divided into three books;
1. of tender and consignation; 2. of process in relation to the opening of a
succession; 3. of arbitration.
4. - 3d. Code de Commerce, in four books; 1. of commerce in general; 2.
of maritime comraerce; 3. of failures and bankruptcy; 4. of commercial
jurisdiction. Pardessus is one of the ablest commentators on this code.
5. - 4th. Code d'Instructions Criminelle, in two books; 1. of judiciary
police, and its officers; 2. of the administration of justice.
6.-5th. Code Penal, in four books; 1. of punishment in criminal and
correctional cases, and their effects; 2. of the persons punishable, excusable
or responsible, for their crimes or misdemeanors; 3. of crimes, misdemeanors,
(delits,) and their punishment; 4. of contraventions of police, and their
punishment. For the history of these codes, vide Merl. Rep. h. t.; Motifs,
Rapports, Opinions et Discours sur les Codes; Encyclop. Amer. h. t.
7. Henrion de Pansey, late a president of the Court of Cassation,
remarks in reference to these codes: "In the midst of the innovations of these
later times, a system of uniformity has suddenly engrossed all minds, and we
have had imposed upon us the same weights, the same measures, the same laws,
civil, criminal, rural and commercial. These new codes, like everything which
comes from the hand of man, have imperfections and obscurities. The
administration of them is committed to nearly thirty sovereign courts and a
multitude of petty tribunals, composed of only three judges, and yet are
invested with the right of determining in the last resort, under many
circumstances. Each tribunal, the natural interpreter of these laws, applies
them according to its own view, and the new codes were scarcely in operation
before this beautiful system of uniformity became nothing more than a vain
theory. Authorite Judiciaire, c. 31, s. 10.
CODE HENRI. A digest of the laws of Hayti, enacted by Henri,
king of Hayti. It is based upon the Code Napoleon, but not servilely copied. It
is said to be judiciously adapted to the situation of Hayti. A collection of
laws made by order of Henry III of France, is also known by the name of Code
CODE, JUSTINIAN, civil law. A collection of the constitutions of
the emperors, from Adrian to Justinian; the greater part of those from Adrian
to Constantine are mere rescripts; those from Constantine to Justinian are
edicts or laws, properly speaking.
2. The code is divided into twelve books, which are subdivided into
titles, in which the constitutions are collected under proper heads. They are
placed in chronological order, but often disjointed. At the head of each
constitution is placed the name of the emperor who is the author, and that of
the person to whom it is addressed. The date is at the end. Several of these
constitutions, which were formerly in the code were lost, it is supposed by the
neglect of "copyists. Some of them have been restored by modern authors, among
whom may be mentioned Charondas, Cugas, and Contius, who translated them from
CODE, OF LOUISIANA. In 1822, Peter Derbigny, Edward Livingston,
and Moreau Lislet, were selected by the legislature to revise and amend the
civil code, and to add to it sucb laws still in force as were not included
therein. They were authorized to add a system of commercial law, and a code of
practice. The code they prepared having been adopted, was promulgated in 1824,
under the title of the " Civil Code of the State of Louisiana."
2. The code is based on the Code Napoleon, with proper and judicious
modifications, suitable for the state of Louisiana. It is composed of three
books: 1. the first treats of persons; 2. the second of tbings, and of the
different modifications of property; 3. and the third of the different modes of
acquiring the property of tbings. It contains 3522 articles, numbered from the
beginning, for the convenience of reference.
3. This code, it is said, contains many inaccurate definitions. The
legislature modified and changed many of the provisions relating to the
positive legislation, but adopted the definitions and abstract doctrines of the
code without material alterations. From this circumstance, as well as from the
inherent difficulty of the subject, the positive provisions of the code are
often at variance with the theoretical part, which was intended to elucidate
them. 13 L. R. 237.
4. This code went into operation on the 20th day of May,. 1825. 11 L. R.
60. It is in both the French and English languages; and in construing it, it is
a rule that when the expressions used in the French text of the code are more
comprehensive than those used in English, or vice versa, the more enlarged
sense will be taken, as thus full effect will be given to both clauses. 2 N. S.
CODE, NAPOLEON. The Code Civil of France, enacted into law
during the reign of Napoleon, bore his name until the restoration of the
Bourbons when it was deprived of that name, and it is now cited Code Civil.
CODE PAPIRIAN. The name of a collection of the Roman laws,
promulgated by Romulus, Numa, and other kings who governed. Rome till the time
of Tarquin, the Proud. It was so called in honor if Sextus Parrius, the
compiler. Dig. 1, 2, 2.
CODE PRUSSIAN. Allgemeines Landrecht. This code is also known by
the name of Codex Fredericianus, or Frederician code. It was compiled by order
of Frederic H., by the minister of justice, Samuel V. Cocceji, who completed, a
part of it before his death, in 1755. In 1780, the work was renewed under the
superintendence of the minister Von Carmer, and prosecuted with unceasing
activity and was published from 1784 to 1788, in six parts. The opinions of
those who understood the subject were requested, and prizes offered on the best
commentaries on it; and the whole was completed in June, 1791, under the title
" General Prussian Code."
CODE THEODOSIAN. This code, which originated in the eastern
empire, was adopted in the Western empire towards its decline. It is a
collection of the legislation of the Christian emperors, from and including
Constantine to Theodosius, the Younger; it is composed of sixteen books, the
edicts, acts, rescripts, and ordinances of the two empires, that of the east
and that of the west.
CO-DEFENDANT. One who is made defendant in an action with
CODEX. Literally, a volume or roll. It is particularly applied
to the volume of the civil law, collected by the emperor Justinian, from all
pleas and answers of the ancient lawyers, which were in loose scrolls or sheets
of parchment. These he compiled into a book which goes by the name of
CODICIL, devises. An addition or supplement to a will; it must
be executed with the same solemnities. A codicil is a part of the will, the two
instruments making but one will. 4 Bro. C. C. 55; 2 Ves. sen. 242 4 Ves. 610; 2
Ridgw. Irish P. C. 11, 43.
2. There may be several codicils to one will, and the whole will be
taken as one: the codicil does not, consequently, revoke the will further than
it is in opposition to some of its particular dispositions, unless there be
express words of revocation. 8 Cowen, Rep. 56.,
3. Formerly, the difference between a will and a codicil consisted in
this, that in the former an executor was named, while in the latter none was
appointed. Swinb. part 1, s. 5, pl. 2; Godolph. Leg. part 1, c. 6, s. 2. This
is the distinction of the civil law, and adopted by the canon law. Vide
Williams on Wills, ch. 2; Rob. on Wills, 154, n. 388, 476; Lovelass on Wills,
185, 289 4 Kent, Com. 516; 1 Ves. jr. 407, 497; 3 Ves. jr. 110; 4 Ves. jr. 610;
1 Supp. to Ves. jr. 116, 140.
4. Codicils were chiefly intended to mitigate the strictness of the
ancient Roman law, which required that a will should be attested by seven Roman
citizens, omni exceptione majores. A legacy could be bequeathed, but the heir
could not be appointed by codicil, though he might be made heir indirectly by
way of fidei commissum.
5. Codicils owe their origin to the following circumstances. Lucius
Lentulus, dying in Africa, left. codicils, confirmed by anticipation in a will
of former date, and in those codicils requested the emperor Augustus, by way of
fidei commissum, or trust, to do something therein expressed. The emperor
carried this will into effect, and the daughter of Lentulus paid legacies which
she would not otherwise have been legally bound to pay. Other persons made
similar fidei-commissa, and then the emperor, by the advice of learned men whom
he consulted, sanctioned the making of codicils, and thus they became clothed
with legal authority. Just. 2, 25; Bowy. Com. 155, 156.
6. The form of devising by codicil is abolished in Louisiana; Code,
1563; and whether the disposition of the property be made by testament, under
this title, or under that of institution of heir, of legacy, codicil, donation
mortis causa, or under any other name indicating the last will, provided it be
clothed with the forms required for the validity of a testament, it is, as far
as form is concerned, to be considered a testament. Ib. Vide 1 Brown's Civil
Law, 292; Domat, Lois Civ. liv. 4, t. 1, s. 1; Lecons Element, du Dr. Civ. Rom.
COERCION, criminal law, contracts. Constraint; compulsion;
2. It is positive or presumed. 1. Positive or direct coercion takes
place when a man is by physical force compelled to do an act contrary to his
will; for example, when a man falls into the hands of the enemies of his
country, and they compel him, by a just fear of death, to fight against it.
3. - 2. It is presumed where a person is legally under subjection to
another, and is induced, in consequence of such subjection, to do an act
contrary to his win. A married woman, for example, is legally under the
subjection of her husband, and if in his company she commit a crime or offence,
not malum in se, (except the offence of keeping a bawdy-house, In which case
she is considered by the policy of the law as a principal, she is presumed to
act under this coercion.
4. As will (q. v.) is necessary to the commission of a crime, or the
making of a contract, a person coerced into either, has no will on the,
subject, and is not responsible. Vide Roscoe's Cr. Ev. 7 85, and the cases
there cited; 2 Stark. Ev. 705, as to what will, amount to coercion in criminal
CO-EXECUTOR. One who is executor with another.
2. In general, the rights and duties of co-executors are equal.
COGNATION, civil law. Signifies generally the kindred which
exists between two persons who are united by ties of blood or family, or
2. Cognation is of -three kinds: natural, civil, or mixed. Natural
cognation is that which is alone formed by ties of blood; such is the kindred
of those who owe their origin to an illicit connexion, either in relation to
their ascendants or collaterals.
3. Civil cognation is that which proceeds alone from the ties of
families as the kindred between the adopted father and the adopted child.
4. Mixed cognation is that which unites at the same time the ties of
blood and family, as that which exists between brothers, the issue of the same
lawful marriage. 6; Dig. 38, 10.
COGNATI, cognates. This term occurs frequently in the Roman
civil law, and denotes collateral heirs through females. It is not used in the
civil law as it now prevails in France. In the common law it has no technical
sense, but as a word of discourse in English it signifies, generally, allied by
blood, related in origin, of the same family. See Vicat, ad verb.; also,
COGNISANCE, pleading. Where the defendant in an action of
replevin (not being entitled to the distress or goods which are the subject of
the replevin) acknowledges the taking of the distress, and insists that such
taking was legal, not because he himself had a right to distrain on his own
account, but because he made the distress by the command of another, who had a
right to distrain on the goods which are the subject of the suit. Lawes on Pl.
35, 36; 4 Bouv. Inst. n. 3571.
COGNISANCE, practice. Sometimes signifies jurisdiction and
juudicial power, an sometimes the hearing of a matter judicially. It is a term
used in the acknowledgment of a fine. See Vaughan's Rep. 207.
COGNISANCE OF PLEAS, Eng. law. A privilege granted by the king
to a city or town, to hold pleas within the same; and when any one is impleaded
in the courts at Westminster, the owner of the franchise may demand cognisance
of the plea. T. de la Ley.
COGNISEE. He to whom a fine of lands, &c. is acknowledged.
COGNISOR, English law. One who passes or acknowledges,a fine of
lands or tenements to another, in distinction from the cogzisee, to whom the
fine of the lands, &c. is acknowledged.
COGNITIONIBUS ADMITTENDIS, English law, practice. A writ to a
justice ,or other person, who has power to take a fine, and having taken the
acknowledgment of a fine, delays to certify it in the court of common pleas,
requiring him to do it. Crabbe's Tech. Dict.
COGNOMEN. A Latin word, which signifies a family name. The
praenomen among the Romans distinguished the person, the nomen, the gens, or
all the kindred descended from a remote common stock through males, while the
cognomen denoted the particular family. The agnomen was added on account of
some particular event, as a further distinction. Thus, in the designation
Publius Cornelius Scipio Africanus, Publius is the proenomen, Cornelius is the
nomen, Scipio the cognomen, and Africanus the agnomen. Vicat. These several
terms occur frequently in the Roman laws. See Cas. temp. Hardw. 286; 1 Tayl.
148. See Name; Surname.
COGNOVIT, contr. leading. A written confession of an action by a
defendant, subscribed but not sealed, and authorizing the plaintiff to sign
judgment and issue execution, usually for a sum named.
2. It is given after the action is brought to save expense.
3. It differs from a warrant of attorney, which is given before the
commencement of any action, and is under seal. A cognovit actionem is an
acknowledgment and confession of the plaintiff's cause of action against the
defendant to be just and true. Vide 3 Ch. Pr. 664; 3 Bouv. Inst. n. 8299.
COHABITATION. Living together.
2. The law presumes that husband and wife cohabit, even after a
voluntary separation has taken place between them; but where there has been a
divorce a mensa et thoro, or a sentence of separation, the presumption then
arises that they have obeyed the sentence or decree, and do not live
3. A criminal cohabitation will not be presumed by the proof of a single
act of criminal intercourse between a man and woman not married. 10 Mass. R.
4. When a woman is proved to cohabit with a man and to assume his name
with his consent, he will generally be responsible for her debts as if she had
been his wife; 2 Esp. R. 637; 1 Campb. R. 245; this being presumptive evidence
of marriage; B. N. P. 114; but this liability will continue only while they
live together, unless she is actually his were. 4 Campb. R. 215.
5. In civil actions for criminal conversation with the plaintiff's wife,
after the husband and wife have separated, the plaintiff will not in general be
entitled to recover. 1 Esp. R. 16; S. C. 5 T. R. 357; Peake's Cas. 7, 39; sed
vide 6 East, 248; 4 Esp. 39.
CO-HEIR. One of several men among whom an inheritance is to be
CO-HEIRESS. A woman who inherits an estate in common with other
women. A joint heiress.
COIF. A head-dress. In England there are certain serjeants at
law, who are called serjeants of the coif, from the lawn coif they wear on
their heads under their thin caps when they are admitted to that order.
COIN, commerce, contracts. A piece of gold, silver or other
metal stamped by authority of the government, in order to determine its value,
commonly called money. Co. Litt. 207; Rutherf. Inst. 123. For the different
kinds of coins of the United States, see article Money. As to the value of
foreign coins, see article Foreign Coins.
COLLATERAL, collateralis. From latus, a side; that which is
sideways, and not direct.
COLLATERAL ASSURANCE, contracts. That which is made over and
above the deed itself.
COLLATERAL FACTS evidence. Facts unconnected with the issue or
matter in dispute.
2. As no fair and reasonable inference can be drawn from such facts,
they are inadmissible in evidence, for at best they are useless, and may be
mischievous, because they tend to distract the attention of the jury, and to
mislead them. Stark. Ev. h. t.; 2 Bl. Rep. 1169; 1 Stark Ev. 40; 3 Bouv. Inst.
3. It is frequently difficult to ascertain a priori, whether a
particular fact offered in evidence, will, or will not clearly appear to be
material in the progress of the cause, and in such cases it is usual in
practice for the court to give credit to the assertion of the counsel who
tenders such evidence, that the facts will turn out to be material; but this is
always within the sound discretion of the court. It is the duty of the counsel,
however, to offer evidence, if possible, in such order that each part of it
will appear to be pertinent and proper at the time it is offered; and it is
expedient to do so, as this method tends to the success of a good cause.
4. When a witness is cross-examined as to collateral facts, the party
cross-examining will be bound by the answer, and he cannot, in general,
contradict him by another witness. Rosc. Ev. l39.
COLLATERAL ISSUE, practice, pleading. Where a criminal convict
pleads any matter, allowed by law, in bar of execution; as pregnancy, a pardon,
and the like.
COLLATERAL KINSMEN, descent, distribution. Those who descend
from one and the same common ancestor, but not from one another; thus brothers
and sisters are collateral to each other; the uncle and the nephew are
collateral kinmen, and cousins are the same. The term collateral is used in
opposition to the phrase lineal kinsmen. (q. v.)
COLLATERAL SECURITY, contracts. A separate obligation attached
to another contract, to guaranty its performance. By this term is also meant
the transfer of property or of other contracts to insure the performance of a
principal engagement. The property or securities thus conveyed are also called
collateral securities. 1 Pow. Mortg. 393; 2 Id. 666, n. 871; 3 Id. 944,
COLLATERAL WARRANTY, contracts, descent. Where the heir's title
to the land neither was, nor could have been, derived from the warranting
ancestor; and yet barred the heir from ever claiming the land, and also imposed
upon him the same obligation of giving the warrantee other lands, in case of
eviction, as if the warranty were lineal, provided the heir had assets. 4
Cruise, Real Prop. 436.
2. The doctrine of collateral warranty, is, according to Justice Story,
one of the most unjust, oppressive and indefensible, in the whole range of the
common law. 1 Sumn. R. 262.
3. By the statute of 4 & 5 Anne, c. 16, 21, all collateral
warranties of any land to be made after a certain day, by any ancestor who has
no estate of inheritance in possession in the same, were made void against the
heir. This Statute has been reenacted in New. York; 4 Kent, Com. 460, 3d ed.;
and in New Jersey. 3 Halst. R. 106. It has been adopted and is in force in
Rhode Island; 1 Sumn. R. 235; and in Delaware. Harring. R. 50. In Kentucky and
Virginia, it seems that collateral warranty binds the heir to the extent of
assets descended. 1 Dana, R. 59. In Pennsylvania, collateral warranty of the
ancestor, with sufficient real assets descending to the heirs, bars them from
recovering the lands warranted. 4 Dall. R. 168; 2 Yeates, R. 509; 9 S. & R.
275. See 1 Sumn. 262; 3 Halst. 106; Harring. 50; 3 Rand. 549; 9 S. & R.
275; 4 Dall. 168; 2 Yeates, 509; 1 Dana, 50.
COLLATIO BONORUM, descent, distribution. Where a portion or
money advanced to a son or daughter, is brought into botchpot, in order to have
an equal distributive share of the ancestor's personal estate. The same rule
obtains in the civil law. Civil Code of Louis. 1305; Diet. de Jur. mot
Collation; Merlin Rep. mot Collation.
COLLATION, descents. A term used in the laws of Louisiana.
Collation -of goods is the supposed or real return to the mass of the
succession, which an heir makes of the property he received in advance of his
share or otherwise, in order that such property may be divided, together with
the other effects of the succession. Civil Code of Lo. art. 1305.
2. As the object of collation is to equalize the heirs, it follows that
those things are excluded from collation, which the heir acquired by an onerous
title from the ancestor, that is, where he gave a valuable consideration for
them. And upon the same principle, if a co-heir claims no share of the estate,
he is not bound to collate. Qui non vult hereditatem, non cogitur ad
collationem. See Id. art. 1305 to 1367; And Hotchpot.
COLLATION, eccl. law. The act by which the bishop, who has the
bestowing of a benefice, gives it to an incumbent. T. L.
COLLATION, practice. The comparison of a copy with its original,
in order to ascertain its correctness and conformity; the report of the officer
who made the comparison, is also called a collation.
COLLATION OF SEALS. Where, on the same label, one seal was set
on the back or reverse of the other, this was said to be a collation of seals.
Jacob. L. D. h. t.
COLLECTOR, officer. One appointed to receive taxes or other
impositions; as collector of taxes; collector of militia fines, &c. A
collector is also a person appointed by a private person to collect the credits
due him. Metc. & Perk. Dig. h. t.
COLLECTORS OF THE CUSTUMS. Officers of the United States,
appointed for the term of four years, but removable at the pleasure of the
president. Act of May 15, 1820, sect. 1, 3 Story's U. S. Laws, 1790.
2. The duties of a collector of customs are described in general terms,
as follows: " He shall receive all reports, manifests and documents, to be made
or exhibited on the entry of any ship or vessel, according to the regulations
of this act shall record in books, to be kept for the purpose, all manifests;
shall receive the entries of all ships or vessels, and of the goods, wares and
merchandise imported in them; shall, together with the naval officer, where
there is one, or alone, where there is none, estimate the amount of duties
payable thereupon, endorsing the said amounts upon the respective entries;
shall receive all moneys paid for duties, and shall take bonds for securing the
payment thereof; shall grant all permits for the unlading and delivery of
goods; shall, with the approbation of the principal officer of the treasury
department, employ proper persons as weighers, gaugers, measurers and
inspectors, at the several ports within his district; and also, with the like
approbation, provide, at the public expense, storehouses for the safe keeping
of goods, and such scales, weights and measures, as may be necessary." Act of
March 2,1799) s. 21, 1 Story, U. S. Laws, 590. Vide, for other duties of
collectors, 1 Story, U. S. Laws, 592, 612, 620, 632, 659, and vol. 3, 1650,
1697, 1759, 1761, 1791, 1811, 1848, 1854; 10 Wheat. 246.
COLLEGE. A civil corporation, society or company, authorized by
law, having in general a literary object. In some countries by college is
understood the union of certain voters in *one body; such bodies are called
electoral colleges; as, the college of electors or their deputies to the diet
of Ratisbon; the college of cardinals. The term is used in the United States;
as, the college of electors of president and vice-president, of the United
States. Act of Congress of January 23, 1845.
COLLISION, maritime law. It takes place when two ships or other
vessels run foul of each other, or when one runs foul of the other. In such
cases there is almost. always a damage incurred.
2. There are four possibilities under which an accident of this sort may
occur. 1. It may happen without blame being imputable to either party, as when
the loss is occasioned by a storm, or any other vis major; in that case the
loss must be borne by the party on whom it happens to light, the other not
being responsible to him in, any degree.
3. - 2. Both parties may be to blame, as when there has been a want of
due diligence or of skill on both sides; in such cases, the loss must be
apportioned between them, as having been occasioned by the fault of both of
them. 6 Whart. R. 311..
4. - 3. The suffering party may have been the cause of the injury, then
he must bear the loss.
5. - 4. It may have been the fault of the ship which ran down the other;
in this case the injured party would be entitled to an entire corapensation
from the other. 2 Dodson's Rep. 83, 85; 3 Hagg. Adm. R. 320; 1 .How. S. C. R.
89. The same rule is applied to steamers.. Id. 414.
6. - 5. Another case has been put, namely, when there has been some
fault or neglect, but on which side the blame lies, is uncertain. In this case,
it does not appear to be settled whether the loss shall be apportioned or borne
by the suffering party opinions on this subject are divided.
7. A collision between two ships on the high seas, whether it be the
result of accident or negligence, is, in all cases, to be deemed a peril of the
seas within the meaning of a policy of insurance. 2 Story, R. 176; 3 Sumn. R.
889. Vide, generally, Story, Bailm. 607 to 612; Marsh.. Ins. B. 1, c. 12, s. 2;
Wesk. Ins. art. Running Foul; Jacobsen's Sea Laws, B. 4, c. 1; 4 Taunt. 126; 2
Chit. Pr. 513, 535; Code de Com. art. 407; Boulay-Paty, Cours de Dr.
Commercial, tit. 12, s. 6; Pard. n. 652 to 654; Pothier, Avaries, n. 155; 1
Emerig. Assur. ch. 12, 14.
COLLISTRIGIUM. The pillory.
COLLOCATION, French law. The act by which the creditors of an
estate are arranged in the order in which they are to be paid according to law.
The order in which the creditors-are placed, is also called collocation. Merl.
Rep. h. t. Vide Marshalling Assets.
COLLOQUIM, pleading. A discourse a conversation or
2. In actions of slander, it is generally true that an action does not
lie for words, on account of, their being merely disgraceful to a person in his
office, profession or trade; unless it be averred, that at the time of
publishing the words, there was a colloquium concerning the office, profession
or trade of the plaintiff.
3. In its technical sense, the term colloquium signifies an averment in
a declaration that there was a conversation or discourse on the part of the
defendant, which connects the slander with the office, profession or trade of
the plaintiff; and this colloquium must extend to the whole of the prefatory
matter to render the words actionable. 3 Bulst. 83. Vide Bac. Ab. Slander, S,
n. 3; Dane's Ab. Index, h. t.; Com. Dig. Action upon the case for Defamation, G
7, 8, &c.; Stark. on Sland. 290, et seq.
COLLUSION, fraud. An agreement between two or more persons, to
defraud a person of his rights by the forms of law, or to obtain an object
forbidden by law; as, for example, where the husband and wife collude to obtain
a divorce for a cause not authorized by law. It is nearly synonymous with
covin. (q. v.)
2. Collusion and fraud of every kind vitiate all acts which are infected
with them, and render them void. Vide Shelf. on Mar. .& Div. 416, 450; 3
Hagg. Eccl. R. 130, 133; 2 Greenl. Ev. 51; Bousq. Dict. de Dr. mot
COLONEL. An officer in the army, next below a brigadier general,
bears this title.
COLONY. A union of citizens or subjects who have left their
country to people another, and remain subject to the mother country. 3 W. C. C.
R. 287. The country occupied by the colonists is also called a colony. A colony
differs from a possession, or a dependency. (q. v.) For a history of the
American colonies, the reader is referred to Story on the Constitution, book
I.; 1 Kent, Com. 77 to 80; 1 Dane's Ab. Index, b. t.
COLOR, pleading. It is of two kinds, namely, express color, and
implied color. 2. Express color. This is defined to be a feigned matter,
pleaded by the defendant, in an action of trespass, from which the plaintiff
seems to have a good cause of action, whereas he has in truth only an
appearance or color of cause. The practice of giving express color in pleas,
obtained in the mixed actions of assize, the writ of entry in the nature of
assize, as well as in the personal action of trespass. Steph. on Plead. 230;
Bac. Ab. Trespass, 14.
3. It is a general rule in pleading that no man shall be allowed to
plead specially such plea as amounts to the general issue, or a total denial of
the charges contained in the declaration, and must in such cases plead the
general issue in terms, by which the whole question is referred to the jury;
yet, if the defendant in an action of trespass, be desirous to refer the
validity of his title to the court, rather than to the jury; he may in his plea
stated his title specially, by expressly giving color of title to the
plaintiff, or supposing him to have an appearance of title, had indeed in point
of law, but of which the jury are not competent judges. 3 Bl. Com. 309.
Suppose, for example, that the plaintiff wag in wrongful possession of the
close, without any further appearance of title than the possession itself, at
the time of the trespass alleged, and that the defendants, entered upon him in
assertion of their title: but being unable to set forth this title in the
pleading, in consequence of the objection that would arise for want of color,
are driven to plead the general issue of not guilty. By this plea an issue is
produced whether the defendants are-guilty or not of the trespass; but upon the
trial of the issue, it will be found that the question turns entirely upon a
construction of law. The defendants say they are not guilty of the trespasses,
because they are not guilty of breaking the close of the plaintiff, as alleged
in the declaration; and that they are not guilty of breaking the close of the
plaintiff, because they themselves had the property in that close; and their
title is. this, that the father of one of the defendants being seised of the
close in fee, gave it in tail to his eldest son, remainder in tail to one of
the defendants; the eldest son was disseised, but made continual claim till the
death of the disseisor; after whose death, the descent being cast upon the
heir, the disseisee entered upon the heir, and afterwards died, when the
remainder took effect in the said defendant who demised to the other defendant
. Now, this title involves a legal question; namely, whether continual claim
will no preserve the right of entry in the disseisee, notwithstanding a descent
cast on the heir of the disseisor. (See as to this point, Continual Claim.) The
issue however is merely not guilty, and this is triable by jury; and the
effect, therefore, would be, that a jury would have to decide this question of
law, subject to the direction upon it, which they would receive from the court.
But, let it be supposed that the defendants, in a view to the more satisfactory
decision of the question, wish to bring it under the consideration of the court
in bank, rather than have it referred to a jury. If they have any means of
setting forth their title specially in the plea, the object will be attained;
for then the plaintiff, if disposed to question the sufficiently of the title,
may demur to the plea, and thus refer the question to the decision of the
judges. But such plea if pleaded simply, according to the state of the fact,
would be informal for want of color; and hence arises a difficulty.
4. The pleaders of former days, contrived to overcome this difficulty in
the following singular manner. In such case as that supposed, the plea wanting
implied color, they gave in lieu of it an express one, by inserting a
fictitious allegation of some colorable title in the plaintiff, which they, at
the same time avoided by the preferable title of the defendant. S Step . Pl.
225 Brown's Entr. 343, for a form of the plea. Plowd. Rep. 22 b.
5. Formerly various suggestions of apparent right, might be adopted
according to the fancy of the pleader; and though the same latitude is,
perhaps, still available, yet, in practice, it is unusual to resort to any
except certain known fictions, which long usage has applied to the particular
case for example, in trespass to land, the color universally given is that of a
defective charter of the demise. See, in general, 2 Saund. 410; 10 Co. 88; Cro.
Eliz. 76; 1 East, 215; Doct. Pl. 17; Doct. & Stud. lib. 2, c. 53; Bac. Abr.
Pleas, I 8; Trespass, I 4; 1 Chit. Pl. 500 Steph. on Pl. 220.
6. Implied color. That in pleading which admits by implication, an
apparent right in the opposite party, and avoids it by pleading some new matter
by which that apparent right is defeated. Steph. Pl. 225.
7. It is a rule that every pleading by way of confession and avoidance,
must give color; that is, it must admit an apparent right in the opposite
party, and rely, therefore, on some new matter by which that apparent right is
defeated. For example, where the defendant pleads a release to an action for
breach of covenant, the tendency of the plea is to admit an apparent right in
the plaintiff, namely, that the defendant did, as alleged in the declaration,
execute the deed and break the covenant therein contained, and would therefore,
prima facie, be liable on that ground; but shows new matter not before
disclosed, by which that apparent right is done away, namely, that the
plaintiff executed to him a release. Again, if the plaintiff reply that Such
release was obtained by duress, in his, replication, he impliedly admits that
the defendant has, prima facie, a good defence, namely, that such release was
executed as alleged in the plea; and that the defefadant therefore would be
discharged; but relies on new matter by which the plea is avoided, namely, that
the release was obtained by duress. The plea, in this case, therefore, gives
color to the declaration, and the replication, to the plea. But let it be
supposed that the plaintiff has replied, that the release was executed by him,
but to another person, and not to the defendant; this would be an informal
replication wanting color; because, if the release were not to the defendant
there would not exist even an apparent defence, requiring the allegation of new
matter to avoid it, and the plea might be sufficiently answered by a traverse,
denying that the deed stated in the plea is the deed of the plaintiff. See
Steph. Pl. 220; 1 Chit. Pl. 498; Lawes, Civ. Pl. 126; Arch. Pl. 211; Doct. Pl.
17; 4 Vin. Abr. 552; Bac. Abr. Pleas, &e. I 8; Com. Dig. Pleader, 3 M 40,
3-M 41. See an example of giving color in pleading in the Roman law, Inst. lib.
4, tit 14, De replicantionibus.
COLOR OR OFFICE, criminal law. A wrong committed by an officer
under the pretended authority of his office; in some cases the act amounts to a
misdemeanor, and the party may then be indicted. In other cases, the remedy to
redress the wrong is by an action.
COLT. An animal of the horse species, whether male or female,
not more than four years old. Russ. & Ry. 416.
COMBAT, Eng. law. The form of a forcible encounter between two
or more persons or bodies of men; an engagement or battle. A duel.
COMBINATION. A union of different things. A patent may be taken
out for a new combination of existing machinery, or machines. See 2 Mason, 112;
and Composition of matter.
2. By combination is understood, in a bad sense, a union of men for the
purpose of violating the law.
COMBUSTIO DOMORUM. Burning of houses; arson. Vide 4 Bl. Com.
COMES, pleading. In a plea, the defendant says, " And the said C
D, by E F, his attorney, comes, and defends, &c. The word comes, venit,
expresses the appearance of the defendant , in court. It is taken from the
style of the entry of the proceedings on the record, and formed no part of the
viva voce pleading. It is, accordingly, not considered as, in strictness,
constituting a part of the Plea. 1 Chit. Pl. 411; Steph. Pl. 432.
COMES, offices. A Count. An officer during the middle ages, who
possessed civil and military authority. Sav. Dr. Rom. Moy. age, n. 80.
2. Vice-comes, the Latin name for sheriff, was originally the lieutenant
of the comes.
COMITATUS. A county. Most of the states are divided into
counties; some, as Louisiana, are divided into parishes.
COMITES. Persons who are attached to a public minister, are so
called. As to their privileges, see 1 Dall. 117; Baldw. 240; and
COMITY. Courtesy; a disposition to accomodate.
2. Courts of justice in one state will, out of comity, enforce the laws
of another state, when by such enforcement they will not violate their laws or
inflict. an injury on some one of their own citizens; as, for example, the
discharge of a debtor under the insolvent laws of one state, will be respected
in another state, where there is a reciprocity in this respect.
3. It is a general rule that the municipal laws of a country do not
extend beyond its limits, and cannot be enforced in another, except on the
principle of comity. But when those laws clash and interfere with the rights of
citizens, or the laws of the countries where the parties to the contract seek
to enforce it, as one or the other must give way, those prevailing where the
relief is sought must have the preference. 2 Mart. Lo. Rep. N. S. 93; S. C. 2
Harr. Cond. Lo. Rep. 606, 609; 2 B. & C. 448, 471; 6 Binn. 353; 5 Crancb,
299; 2 Mass. 84; 6 Mass. 358; 7 Mart. Lo. R. 318. See Conflict of Laws; Lex
COMMAND. This word has several meanings. 1. It signifies an
order; an apprentice is bound to obey the lawful command of his master; a
constable may command rioters to keep the peace. 2. He who commands another to
do an unlawful act, is accessary to it. 3 Inst. 51, 57; 2 Inst. 182; 1
3. Command is also equivalent to deputation or voluntary substitution;
as, when a master employs one to do a thing, he is said to have Commanded him
to do it; and he is responsible accordingly. Story Ag. 454, note.
COMMENCEMENT OF A SUIT OR ACTION. The suit is considered as
commenced from the issuing of the writ; 3 Bl. Com. 273, 285; 7 T. R. 4; 1 Wils.
147; 18 John. 14; Dunl. Pr. 120; 2 Phil. Ev. 95; 7 Verm. R. 426; 6 Monr. R.
560; Peck's R. 276; 1 Pick. R. 202; Id. 227; 2 N. H. Rep. 36; 4 Cowen, R. 158;
8 Cowen, 203; 3 John. Cas. 133; 2 John. R. 342; 3 John. R. 42; 15 John. R. 42;
17 John. R. 65; 11 John. R. 473; and if the teste or date of the writ be
fictitious, the true time of its issuing may be a and proved, whenever the
purposes of justice require it; as in cases of a plea of tender or of the
statute of limitations. Bac. Ab. Tender D; 1 Stra. 638; Peake's Ev. 259; 2
Saund. 1, n. 1. In Connecticut, the service of, the writ is the commencement of
the action. 1 Root, R. 487; 4 Conn. 149; 6 Conn. R. 30; 9 Conn. R. 530; 7 Conn.
R. 558; 21 Pick. R. 241; 2 C. & M. 408, 492 1 Sim. R. 393. Vide Lis
COMENDAM, eccles. law. When a benefice or church living is void
or vacant, it is commended to the. care of some sufficient clerk to be
supplied, until it can be supplied with a pastor. He to whom the church is thus
commended is said to hold in commendam, and he is entitled to the profits of
the living. Rob. 144; Latch, 236.
2. In Louisiana, there is a species of limited partnership called a
partnership in commendam. It is formed by a contract, by which one person or
partnership agrees to furnish another person or partnership a certain amount,
either in property or money, to be employed by the person or partnership to
whom it is furnished, in his or their own name or firm, on condition of
receiving a share in the profits, in the proportion determined by the contract,
and of being liable to losses and expenses, to the amount furnished, and no
more. Civ. Code of Lo. 2810. A similar partnership exists in France. Code de
Comm. 26, 33; Sirey, tom. 12, part 2, p. 25. He who makes this contract is
called in respect to those to whom he makes the advance of capital, a partner
in commendam. Civ. Code of Lo. art. 2811.
COMMENDATARY. A person who holds a church living or presentment
COMMENDATION. The act of recommending, praising. A merchant who
merely commends goods he offers for sale, does not by that act warrant them,
unless there is some fraud: simplex commendatio non obligat.
COMMENDATORS, eccl. law. Secular persons upon whom
ecclesiastical benefices are bestowed, because they were commended and
instructed to their oversight: they are merely trustees.
COMMERCE, trade, contracts. The exchange of commodities for
commodities; considered in a legal point of view, it consists in the various
agreements which have for their object to facilitate the exchange of the
products of the earth or industry of man, with an intent to realize a profit.
Pard. Dr. Coin. n. 1. In a narrower sense, commerce signifies any reciprocal
agreements between two persons, by which one delivers to the other a thing,
which the latter accepts, and for which he pays a consideration; if the
consideration be money, it is called a sale; if any other thing than money, it
is called exchange or barter. Domat, Dr. Pub. liv. 1, tit. 7, s. 1, n. 2.
Congress have power by the constitution to regulate commerce with foreign
nations and among the several states, and with the Indian tribes. 1 Kent. 431;
Story on Corst. 1052, et seq. The sense in which the word commerce is used in
the constitution seems not only to include traffic, but intercourse and
navigation. Story, 1057; 9 Wheat. 190, 191, 215, 229; 1 Tuck. Bl. App. 249 to
252. Vide 17 John. R. 488; 4 John. Ch. R. 150; 6 John. Ch. R. 300; 1 Halst. R.
285; Id. 236; 3 Cowen R. 713; 12 Wheat. R. 419; 1 Brock. R. 423; 11 Pet. R.
102; 6 Cowen, R. 169; 3 Dana, R. 274; 6 Pet. R. 515; 13 S. & R. 205.
COMMISSARIATE. The whole body of officers who act in the
department of the commissary, are called the, commissariate.
COMMISSARY. An officer whose principal duties are to supply the
army witli provisions.
2. The Act of April 14, 1818, s. 6, requires that the president, by and
with the consent of the senate, shall appoint a commissary general with the
rank, pay, and emoluments of colonel of ordnance, and as many assistants, to be
taken from the sub-alterns of the line, as the service may require. The
commissary general and his assistants shall perform such duties, in the
purchasing and issuing of rations to the armies of the United States, as the
president may direct. The duties of these officers are further detailed in the
subsequent sections of this act,, and in the Act of March 2, 1821.
COMMISSION, contracts, civ. law. When one undertakes, without
reward, to do something for another in respect to a thing bailed. This term is
frequently used synonymously with mandate. (q. v.) Ruth. Inst. 105; Halifax,
Analysis of the Civil Law, 70. If the service the party undertakes to perform
for another is the custody of his goods, this particular sort of, commission is
called a charge.
2. In a commission, the obligation on his part who undertakes it, is to
transact the business without wages, or any other reward, and to use the same
care and diligence in it, as if it were his own.
3. By commission is also understood an act performed, opposed to
omission, which is the want of performance of such an act; is, when a nuisance
is created by an act of commission, it may be abated without notice; but when
it arises from omission, notice to remove it must be given before it is abated.
1 Chit. Pr. 711. Vide dbatement of Nuisances; Branches; Trees.
COMMISSION, office. Persons authorized to act in a certain
matter; as, such a matter was submitted, to the commission; there were several
meetings before the commission. 4 B. & Cr. 850; 10 E. C. L. R. 459.
COMMISSION, crim. law. The act of perpetrating an offence. There
are crimes of commission and crimes of omission.
COMMISSION, government. Letters-patent granted by the
government, under the public seal, to a person appointed to an office, giving
him authority to perform the duties of his office. The commission is not the
appointment, but only evidence of it; and as soon as it is signed and sealed,
vests the office in the appointee. 1 Cranch, 137; 2 N. & M. 357; 1 M'Cord,
233, 238. See Pet. C. C. R. 194; 2 Summ. 299; 8 Conn. 109; 1 Penn. 297; 2
Const. Rep. 696; 2 Tyler, 235.
COMMISSION, practice. An instrument issued by a court of,
justice, or other competent tribunal, to authorize a person to take
depositions, or do any other act by authority of such court, or tribunal, is
called a commission. For a form of a commission to take.depositions, see
Gresley, Eq. Ev. 72.
COMMISSION OF LUNACY, A writ issued out of chancery, or such
court as may have jurisdiction of the case directed to a proper officer, to
inquire whether a person named therein is a lunatic or not. 1 Bouv. Inst. n.
382, et seq.
COMMISSION MERCHANT. One employed to sell goods for another on
commission; a factor. He is sometimes called. a consignee, (q. v.) and the
goods he receives are a consignment. 1 Bouv. Inst. n. 1013.
COMMISSION OF REB ELLION, chan. prac. The name of a writ issuing
out of chancery, generally directed to four special commissioners, named by the
plaintiff, commanding them to attach the defendant wheresoever he may be found
within the state, as a rebel and contemner of the law, so as to have him in
chancery on a certain day therein named. This writ may be issued after an
attachment with proclamation, and a return of non est inventus. Blake's Ch. Pr.
102; Newl. Ch. Pr. 14.
COMMISSIONER, officer. One who has a lawful commission to
execute a public office. In a more restricted sense it is one who is authorized
to execute. a particular duty, as, commissioner of the revenue, canal
commissioner. The term when used in this latter sense is not applied, for
example, to a judge. There are commissioners, too, who have no regular
commissions and derive their author from the elections held by the people.
County commissioners, in Pennsylvania, are officers of the latter kind.
COMMISSIONER OF PATENTS. The name of an officer of the United
States whose duties are detailed in the act to promote the useful arts,
&c., which will be found under the article Patent.
COMMISSIONERS OF BAIL, practice. Officers appointed by some
courts to take recognizances of bail in civil cases.
COMMISSIONERS OF SEWERS, Eng. law. Officers whose duty it is to
repair sea banks aud walls, survey rivers, public streams, ditches, &c.
COMMISSlONS, contracts, practice. An allowance of compensation
to an agent, factor, executor, trustee or other person who manages the affairs
of others, for his services in performing the same.
2. The right of agents, factors or other contractors to commissions, may
either be the subjeot of a special contract, or rest upon the quantum meruit. 9
C. & P. 559; 38 E. C. L. R. 227; 3 Smith's R. 440; 7 C. & P. 584; 32 E.
C. L. R. 641; Sugd. Vend. Index, tit. Auctioneer
3. This compensation is usually the allowance of a certain, per centage
upon the actual amount or value of the business done. When there is a usage of
trade at the particular place, or in the particular business in which the agent
is engaged, the amount of commissions allowed to auctioneers, brokers and
factors, is regulated by such usage. 3 Chit. Com. Law, 221; Smith on Mere. Law,
54; Story, Ag. 326; 3 Camp. R. 412; 4 Camp. R. 96; 2 Stark. 225, 294.
4. The commission of an agent is either ordinary or del credere. (q. v.)
The latter is an increase of the ordinary commission, in consideration of the
responsibility which the agent undertakes, by making himself answerable for the
solvency of those with whom he contracts. Liverm. Agency, 3, et seq.; Paley,
Agency, 88, et seq.
5. In Pennsylvania, the amount missions allowed to executors and
trustees is generally fixed at five per centum on the sum received and paid
out, but this is varied according to circumstances. 1 9 S. & R. 209, 223; 4
Whart. 98; 1 Serg. & Rawle, 241. In England, no commissions are allowed to
executors or trustees. 1 Vern. R. 316, n. and the cases there: cited. 4 Ves.
TO COMMIT. To send a person to prison by virtue of a warrant or
other lawful writ, for the commission of a crime, offence or misdemeanor, or
for a contempt, or non-payment of a debt.
COMMITMENT, criminal law, practice. The warrant. or order by
which a court or magistrate directs a ministerial officer to take a person to
prison. The commitment is either for further hearing, (q. v.) or it is
2. The formal requisites of the commitment are, 1st. that it be in
writing, under hand, and seal, and show the authority of the magistrate, and
the time and place of making it. 3 Har. & McHen. 113; Charl. 280; 3 Crancb,
R. 448; see Harp. R. 313. In this case it is said a seal is not
3. - 2d. It must be made in the name of the United States, or of the
commonwealth, or people, as required by the constitution of the United States
or, of the several states.
4. - 3d. It should be directed to the keeper of the prison, and not
generally to carry the party to prison. 2 Str. 934; 1 Ld. Raym. 424.
5. - 4th. The prisoner should be described by his name and surname, or
the name he gives as his.
6. - 5th. The commitment ought to state that the party has been charged
on oath. 3 Cranch, R.448. But see 2 Virg. Cas. 504; 2 Bail. R. 290.
7. - 6th. The particular crime charged against the prisoner should be
mentioned with convenient certainty. 3 Cranch, R. 449; 11 St. Tr. 304. 318;
Hawk. B. 2, c. 16, s. 16 Chit. Cr. Law, 110.
8. - 7th. The commitment should point out the place of imprisonment, and
not merely direct that the party be taken to prison. 2 Str. 934; 1 Ld. Ray.
9. - 8th. In a final commitment, the command to the keeper of the prison
should be to keep the prisoner "until he shall be discharged by due course of
law," when the offence is not bailable; when it is bailable the gaoler should
be, directed to keep the prisoner in his " said custody for want of sureties,
or until he shall be discharged by due course of law." When the commitment is
not final, it is usual to commit the prisoner " for further hearing." The
commitment is also called a mittimus. (q. v.)
10. The act of sending a person to prison charged with the commission of
a crime by virtue of such a warrant is also called a commitment. Vide,
generally, 4 Vin. Ab. 576; Bac. Ab. h. t.; 4 Cranch, R. 129; 4 Dall. R. 412; 1
Ashm. R. 248; 1 Cowen, R. 144; 3 Conn. R. 502; Wright, R. 691; 2 Virg. Cas.
276; Hardin, R. 249; 4 Mass. R. 497; 14 John. R. 371 2 Virg. Cas. 594; 1 Tyler,
R. 444; U. S. Dig. h. t.
COMMITTEE, practice. When a person has been found non compos,
the law requires that a guardian should be appointed to take care of his person
and estate; this guardian is called the committee.
2. It is usual to select the committee from the next of kin; Shelf. on
Lun. 137; and in case of the lunacy of the husband or wife, the one who is of
sound mind is entitled, unless under very special circumstances, to be the
committee of the other. Id. 140. This is the committee of the person. For
committee of the estate, the heir at law is most favored. Relations are
referred to strangers, but the latter may be appointed. Id. 144.
3. It is the duty of the committee of the person, to take care of the
lunatic; and the committee of the estate is bound to administer the estate
faithfully, and to account for his administration. He cannot in general, make
contracts in relation to the estate of the lunatic, or bind it, without a
Special order of the court or authority that appointed him. Id. 179; 1 Bouv.
Inst. n. 389-91.
COMMITTEE, legislation. One or more members of a legislative
body to whom is specially referred some matter before that body, in order that
they may investigate and examine into it and report to those who delegated this
authority to them.
COMMITTITUR PIECE, Eng. law. An instrument in writing, on paper
or parchment, which charges a person already in prison, in execution at the
suit of, the person who arrested him.
COMMlXTION, civil law. This term is used to signify the act by
which goods are mixed together.
2. The matters which are mixed are dry or liquid. In the commixtion of
the former, the matter retains its substance and individuality; in the latter,
the substances no longer remain distinct. The commixtion of liquids is called
confusion, (q. v.) and that of solids, a mixture. Lec. Elem. du Dr. Rom. 370,
371; Story, Bailm. 40; 1 Bouv. Inst. n. 506.
COMMODATE, contracts. A term used in the Scotch law, which is
synonymous to the Latin commodatum, or loan for use. Ersk. Inst. B. 3, t. 1,
20; 1 Bell's Com. 225; Ersk. Pr. Laws of Scotl. B. 3, t. 1, 9.
2. Judge Story regrets this term has not been adopted and naturalized,
as mandate has been from mandatum. Story, Com. 221. Ayliffe, in his Pandects,
has gone further, and terms the bailor the commodant, and the bailee the
commodatory, thus avoiding those circumlocutions, which, in the common
phraseology of our law, have become almost indispensable. Ayl. Pand. B. 4, t.
16, p. 517. Browne, in his Civil Law, vol. 1, 352, calls the property loaned
"commodated property." See Borrower; Loan for use; Lender.
COMMODATUM. A contract, by which one of the parties binds
himself to return to the other certain personal chattels which the latter
delivers to him, to be used by him, without reward; loan -for use. Vide Loan
COMMON. or right of common, English law. An encorporeal
hereditament, which consists in a profit which a man has in the lands of
another. 12 S. & R. 32; 10 Wend. R. 647; 11 John. R. 498; 2 Bouv. Inst.
1640, et seq.
2. Common is of four sorts; of pasture, piscary, turbary and estovers.
Finch's Law, 157; Co. Litt. 122; 2 Inst. 86; 2 Bl. Com. 32.
3. - 1. Common of pasture is a right of feeding one's beasts on
another's land, and is either appendant, appurtenant, or in gross.
4. Common appendant is of common right, and it may be claimed in
pleading as appendant, without laying a prescription. Hargr. note to 2 Inst.
122, a note.
5. Rights of common appurtenant to the claimant's land are altogether
independent of the tenure, and do not arise from any absolute necessity; but
may be annexed to lands in other lordships, or extended to other beasts
besides. such as are generally commonable.
6. Common in gross, or at large, is such as is neither appendant nor
appurtenant to land, but is annexed to a man's person. All these species of
pasturable common, may be and usually are limited to number and time; but there
are also commons without stint, which last all the year. 2 Bl. Com. 34.
7. - 2. Common of piscary is the liberty of fishing in another man's
water. lb. See Fishery.
8. - 3. Common of turbary is the liberty of digging turf in another
man's ground. Ib.
9.-4. Common of estovers is the liberty of taking necessary wood-for the
use or furniture of a house or farm from another man's estate. Ib.; 10 Wend. R.
639. See Estovers.
10. The right of common is little known in the United States, yet there
are some regulations to be found in relation to this subject. The constitution
of Illinois provides for the continuance of certain commons in that state.
Const. art. 8, s. 8.
11. All unappropriated lands on the Chesapeake Bay, on the Shore of the
sea, or of any river or creek, and the bed of any river or creek, in the
eastern parts of the commonwealth, ungranted and used as common, it is declared
by statute in Virginia, shall remain so, and not be subject to grant. 1 Virg.
Rev. C. 142.
12. In most of the cities and towns in the United States, there are
considerable tracts of land appropriated to public use. These commons were
generally laid out with the cities or towns where they are found, either by the
original proprietors or by the early inhabitants. Vide 2 Pick. Rep. 475; 12 S.
& R. 32; 2 Dane's. Ab. 610; 14 Mass. R. 440; 6 Verm. 355. See, in general,
Vin. Abr. Common; Bac. Abr. Common; Com. Dig. Common; Stark. Ev. part 4, p.
383; Cruise on Real Property, h. t.; Metc. & Perk. Dig. Common, and Common
lands and General fields.
COMMON APPENDANT, Eng. law. A right attached to arable land, and
is an incident of tenure, and supposed to have originated by grant of the lord
or owner of a manor or waste, in consideration of certain rents or services, or
other value, to a freeholder or copyholder of plough land, and at the same time
either expressly or by implication, and as of common right and necessity common
appendant over his other wastes and commons. Co. Litt. 122 a; Willis, 222.
COMMON APPURTENANT, Eng. law. A right granted by deed, by the
owner of waste or other land, to another person, owner of other land, to have
his cattle, or a particular description of cattle; levant and couchant upon the
land, at certain seasons of the year, or at all times of the year. An
uninterrupted usage for twenty years, is evidence of a grant. 15 East, 116.
COMMON ASSURANCES. Title by deeds are so called, because, it is
said, every man ' s estate is assured to him; these deed's or instruments
operate either as conveyances or as charges.
2.- 1. Deeds of conveyance are, first, at common law, and include
feoffments, gifts, grants, leases, exchanges, partition's, releases,
confirmations, surrenders, assignments, and defeasances; secondly, deeds of
conveyance under the statute of uses, as covenants to stand seised to uses,
bargains and sale, lease and release, deeds to lead or declare uses, and deeds
of appointment and revocation.
3. - 2. Deeds which do not convoy, but only charge or discharge lands,
are obligations, recognizances, and defeasances. Vide Assurance; Deed.
COMMON BAIL. The formal entry of fictitious sureties in the
proper office of the court, which is called filing common bail to the action.
COMMON BAR, pleading. A plea to compel the plaintiff to assign
the particular place where the trespass has been Committed. Steph. Pl. 256. It
i's sometime's called a blank bar. (q. v.)
COMMON BENCH, bancus communis. The court of common pleas was
anciently called common bench, because the pleas and controversies there
determined were between common persons. See Bench.
COMMON CARRIER, contracts. One who undertakes for hire or reward
to transport the goods of any who may choose to employ him, from place to
place. 1 Pick. 50, 53; 1 Salk. 249, 250; Story, Bailm. 495 1 Bouv. Inst. n.
2. Common carriers are generally of two descriptions, namely, carriers
by land and carriers by water. Of the former description are the proprietors of
stage coaches, stage wagons or expresses, which ply between different places,
and' carry goods for hire; and truckmen, teamsters, cartmen, and porters, who
undertake to carry goods for hire, as a common employment, from one part of a
town or city to another, are also considered as common carriers. Carriers by
water are the masters and owners of ships and steamboats engaged in the
transportation of goods for persons generally, for hire and lightermen, hoymen,
barge-owners, ferrymen, canal boatmen, and others employed in like manner, are
3. By the common law, a common carrier is generally liable for all
losses which may occur to property entrusted to his charge in the course of
business, unless he can prove the loss happened in consequence of the act of
God, or of the enemies of the United States, or by the act of the owner of the
property. 8 S. & R. 533; 6 John. R. 160; 11 John. R. 107; 4 N. H. Rep. 304;
Harp. R. 469; Peck. R. 270; 7 Yerg. R. 340; 3 Munf. R. 239; 1 Conn. R. 487; 1
Dev. & Bat. 273; 2 Bail. Rep. 157.
4. It was attempted to relax the rigor of the common law in relation to
carriers by water, in 6 Cowen, 266; but that case seems to be at variance with
other decisions. 2 Kent,. Com. 471, 472; 10 Johns. 1; 11 Johns. 107.
5. In respect to carriers by land, the rule of the common law seems
every where admitted in its full rigor in the states governed by the
jurisprudence of the common law. Louisiana follows the doctrine of the civil
law in her code. Proprietors of stage coaches or wagons, whose employment is
solely% to carry passengers, as hackney coachmen, are not deemed common
carriers; but if the proprietors of such vehicles for passengers, also carry
goods for hire, they are, in respect of such goods, to be deemed common
carriers. Bac. Ab. Carriers, A; 2 Show. Rep. 128 1 Salk. 282 Com. Rep. 25; 1
Pick. 50 5 Rawle, 1 79. The like reasoning applies to packet ships and
steam-boats, which ply between different ports, and are accustomed to carry
merchandise as well as passengers. 2 Watts. R. 443; 5 Day's Rep. 415; 1 Conn.
R. 54; 4 Greenl. R. 411; 5 Yerg. R. 427; 4 Har. & J. 291; 2 Verm. R. 92; 2
Binn. Rep. 74; 1 Bay, Rep. 99; 10 John. R. 1; 11 Pick. R. 41; 8 Stew. and Port.
135; 4 Stew. & Port. 382; 3 Misso. R. 264; 2 Nott. & M. 88. But see 6
Cowen, R. 266. The rule which makes acommon carrier responsible for the loss of
goods, does not extend to the carriage of persons; a carrier of slaves is,
therefore, answerable only for want of care and skill. 2 Pet. S. C. R. 150. 4
M'Cord, R. 223; 4 Port. R. 238.
6. A common carrier of goods is in all cases entitled to demand the
price of carriage before he receives the goods, and, if not paid, he may refuse
to take charge of them; if, however, he take charge of them without the hire
being paid, he may afterwards recover it. The compensation which becomes due
for the carriage of goods by sea, is commonly called freight (q.v.); and see
also, Abb. on Sh. part 3, c. 7. The carrier is also entitled to a lien on the
goods for his hire, which, however, he may waive; but if once waived, the right
cannot be resumed. 2 Kent, Com. 497. The consignor or shipper is commonly bound
to the carrier for the hire or freight of goods. 1 T. R. 659. But whenever the
consignee engages to pay it, he also becomes responsible. It is usual in bills
of lading to state, that the goods are to be delivered to the consignee or to
his assigns, he or they paying freight, in which case the consignee and his
assigns, by accepting the goods, impliedly become bound to pay the freight, and
the fact that the consignor is also liable to pay it, will not, in such case,
make any difference. Abbott on Sh. part 3, o. 7, 4.
7. What is said above, relates to common carriers of goods. The duties,
liabilities, and rights of carriers of passengers, are now to be considered.
These are divided into carriers of passengers on land, and carriers of
passengers on water.
8. First, of carriers of passengers on land. The duties of such carriers
are, 1st. those which arise on the commencement of the journey. 1. To carry
passengers whenever they offer themselves and are ready to pay for their
transportation. They have no more right to refuse a passenger, if they have
sufficient room and accommodation, than an innkeeper has to refuse a guest. 3
Brod. & Bing. 54; 9 Price's R. 408; 6 Moore, R. 141; 2 Chit. R. 1; 4 Esp.
R. 460; 1 Bell's Com. 462; Story, Bailm. 591.
9. - 2. To provide coaches reasonably strong and sufficient for the
journey, with suitable horses, trappings and equipments.
10. - 3. To provide careful drivers of reasonable skill and. good habits
for the journey; and to employ horses which are steady and not vicious, or
likely to endanger the safety of the passengers.
11. - 4. Not to overload the coach either with passengers or
12. - 5. To receive and take care of the usual luggage allowed to every
passenger on the journey. 6 Hill, N. Y. Rep. 586.
13. - 2d. Their duties on the progress of the journey. 1. To stop at the
usual places, and allow the..Usual intervals for the refreshment of the
passengers. 5 Petersd. Ab. Carriers, p. 48, note.
14. - 2. To use all the ordinary precautions for the safety of
passengers on the road.
15. - 3d. Their duties on the termination of the journey. 1. To carry
the passengers to the end of the journey.
16. - 2. To put them down at the usual place of stopping, unless there
has been a special contract to the contrary, and then to put them down at the
place agreed upon. 1 Esp. R. 27. ,
17. The liabilities of such carriers. They are bound to use
extraordinary care and diligence to carry safely those whom they take in their
coaches. 2 Esp. R. 533; 2 Camp. R. 79; Peake's R. 80. But, not being insurers,
they are not responsible for accidents, when all reasonable skill and diligence
have been used.
18. The rights of such carriers. 1. To demand and receive their fare at
the time the passenger takes his seat. 2. They have a lien on the baggage of
the passenger for his fare or passage money, but not on the person of the
passenger nor the clothes he has on. Abb. on Sh. part 3, c. 3, 11; 2 Campb. R.
19. Second, carriers of passengers by water. By the act of Congress of
2d March, 1819, 3 Story's Laws U. S. 1722, it is enacted, 1. that no master of
a vessel bound to or from the United States shall take more than two passengers
for every five tons of the ship's custom-house measurement. 2. That the
quantity of water and provisions, which shall be taken on board and secured
under deck, by every Ship bound from the United States to any port on the
continent of Europe, shall be sixty gallons of water, one hundred pounds of
salted provisions, one gallon of vinegar, and one hundred pounds of wholesome
ship bread for each passenger, besides the stores of the crew. The tonnage here
mentioned, is the measurement of the custom-house; and in estimating the number
of passengers in a vessel, no deduction is to be made for children or persons
not paying, but the crew is not to be included. Gilp. R. 334.
20. The act of Congress of February 22, 1847, section 1, provides: "
That if the master of any vessel, owned in whole or in part by a citizen of the
United States of America, or by a citizen of any foreign country, shall take on
board such vessel, at any foreign port or place, a greater number of passengers
than in the following proportion to the space occupied by them and appropriated
for their use, and unoccupied by stores or other goods, not being the personal
luggage of such passengers, that is to say, on the lower deck or platform one
passenger for every fourteen clear superficial feet of deck, if such vessel is
not to pass within the tropics during such voyage; but if such vessel is to
pass within the tropics during such voyage, then one passenger for every twenty
such clear superficial feet of deck, and on the orlop deck (if any) one
passenger for every thirty such superficial feet in all cases, with intent to
bring such passengers to the United States of America, and shall leave such
port or, place with the same, and bring the same, or any number thereof, within
the jurisdiction of the United States aforesaid, or if any such master of a
vessel shall take on board of his vessel at any port or place within the
jurisdiction of the United States aforesaid, any greater number of passengers
than the proportions aforesaid admit, with intent to carry the same to any
foreign port or place, every such master shall be deemed guilty of a
misdemeanor, and, upon conviction thereof before any circuit or district court
of the United States aforesaid, shall, for each passenger taken on board beyond
the above proportions, be fined in the sum of fifty dollars, and may also be
imprisoned for any term not exceeding one year: Provided, That this act shall
not be construed to permit any ship or vessel to carry more than two passengers
to five tons of such ship or vessel."
21. Children under one year of age not to be computed in counting the
passengers, and those over one year and under eight, are to be counted as two
cbildren for one passenger, Sect. 4. But this section is repealed so far as
authorizes shippers to estimate two children of eight years of age and under as
one passenger by the act of March 2, 1847, s. 2.
22. In New York, statutory regulations have been made in relation to
their canal navigation. Vide 6 Cowen's R. 698. As to the conduct of carrier
vessels on the ocean, Vide Story, Bailm. 607 et seq; Marsh. Ins. B. 1, c. 12,
s. 2. And see, generally, 1 Vin. Ab. 219; Bac. Ab. h. t.; 1 Com. Dig. 423;
Petersd. Ab. h. t.; Dane's Ab. Index, h. t.; 2 Kent, Com. 464; 16 East, 247,
note; Bouv. Inst. Index, h. t.
23. In Louisiana carriers and watermen are subject, with respect to the
safe-keeping and preservation of the tbings entrusted to them, to the same
obligations and duties, as are imposed on tavern keepers; Civ. Code, art. 2722;
that is, they are responsible for the effects which are brought, though they
were not delivered into their personal care; provided, however, they were
delivered to a servant or person in their employment; art. 2937. They are
responsible if any of the effects be stolen or damaged, either by their
servants or agents, or even by strangers; art. 2938; but they are not
responsible for what is stolen b force of arms or with exterior breaking open
of doors, or by any other extraordinary violence; art. 2939. For the
authorities on the subject ofCommon carriers in the civil law, the reader is
referred to Dig. 4, 9, 1 to 7; Poth. Pand. lib. 4, t. 9; Domat liv. 1, t. 16,
S. 1 and 2; Pard. art. 537 to 555; Code Civil, art. 1782, 1786, 1952; Moreau
& Carlton, Partidas 5, t. 8, 1. 26; Ersk. Inst. B. 2, t. 1, 28; 1 Bell's
Com. 465; Abb. on Sh. part 3, c. 3, 3, note (1); 1 Voet, ad Pand. lib. 4, t. 9;
Merl. Rep. mots Voiture, Voiturier; Dict. de Police, Voiture.
COMMON COUNCIL. In many cities the charter provides for their
government, in imitation of the national and state governments. There are two
branches of the legislative assembly; the less numerous, called the select, the
other, the common council.
2. In English law, the common council of the whole realm means the
parliament. Fleta, lib. 2, cap. 13.
COMMON COUNTS. Certain general counts, not founded on any
special contract, which are introduced in a declaration, for the purpose of
preventing a defeat of a just right by the accidental variance of the evidence.
These are in an action of assumpsit; counts founded on express or implied
promises to pay money in consideration of a precedent debt, and are of four
descriptions: 1. The indebitatus assumpsit; 2. The quantum meruit; 3 . The
quantum valebant; and, 4. The account stated.
COMMON FISHERY. A fishery to which all persons have a right,
such as the cod fisheries off Newfoundland. A common fishery is different from
a common of fishery, which is the right to fish in another's pond, pool, or
river. See Fishery.
COMMON HIGHWAY. By this term is meant a road to be used by the
community at large for any purpose of transit or traffic. Hamm. N. P. 239. See
COMMON INFORMER. One who, without being specially required by
law, or by virtue of his office, gives information of crimes, offences or
misdemeanors, which have been committed, in order to prosecute the offenders; a
prosecutor. Vide Informer; Prosecutor.
COMMON INTENT, construction. The natural sense given to
2. It is a rule that when words are used which will bear a natural sense
and an artificial one, or one to be made out by argument and inference, the
natural sense shall prevail; it. is simply a rule of construction and not of
addition common intent cannot add to a sentence words which have been omitted.
2 H. Black. 530. In pleading, certainty is required, but certainty to a common
intent is sufficient; that is, what upon a reasonable construction may be
called certain, without recurring to possible facts. Co. Litt. 203, a; Dougl.
163. See Certainty.
COMMON LAW. That which derives its force and authority from the
universal consent and immemorial practice of the people. See Law, common.
COMMON NUISANCE. One which affects the public in general, and
not merely some particular person. 1 Hawk. P. C. 197. See Nuisance.
COMMON PLEAS. The name of a court having jurisdiction generally
of civil actions. For a historical account of the origin of this court in
England, see Boote's Suit at Law, 1 to 10. Vide Common Bench and Bench.
2. By common pleas, is also understood, such pleas or actions as are
brought by private persons against private persons; or by the government, when
the cause of action is of a civil nature. In England, whence we derived this
phrase, common pleas are so called to distinguish them from pleas of the crown.
COMMON RECOVERY. A judgment recovered in a fictitious suit,
brought against the tenant of the freehold, in consequence of a default made by
the person who is last vouched to warranty in the suit., A common recovery is a
kind of conveyance. 2 Bouv. Inst. n. 2088, 2092-3. Vide Recovery.
COMMON SCOLD, Crim. law, communes rixatrix. A woman, who, in
consequence of her boisterous, disorderly and quarrelsome tongue, is a public
nuisance to the neighborhood.
2. Such a woman may be indicted, and on conviction, punished. At common
law, the punishment was by being placed in a certain engine of correction
called the trebucket or cocking stool.
3. This punisbment has been abolished in Pennsylvania, where the offence
may be punished by fine and imprisonment.12 Serg. & Rawle, 220; vide 1
Russ. on Cr. 802 Hawk. B. 2, c. 25, s. 59 1 T. R. 756 4 Rogers' Rec. 90; Roscoe
on Cr. Ev. 665.
COMMON SEAL, A seal used by a corporation. See Corporation.
COMMON SENSE , med. jur. When a person possesses those
perceptions, associations and judgments, in relation to persons and things,
which agree with those of the generality of mankind, he is said to possess
common sense. On the contrary, when a particular individual differs from the
generality of persons in these respects, he is said not to have common sense,
or not to be in his senses. 1 Chit. Med. Jur. 334.
COMMON, TENANTS IN. Tenants in common are such as hold an
estate, real or personal, by several distinct titles, but by a unity of
possession. Vide Tenant in common; Estate in common.
COMMON TRAVERSE. This kind of traverse differs from those called
technical traverses principally in this, that it is preceded by no inducement
general or special; it is taken without an absque hoc, or any similar words,
and is simply a direct denial of the adverse allegations, in common language,
and always concludes to the country. It can be used properly only when an
inducement is not requisite; that is, when the party traversing has no need to
allege any new matter. 1 Saund. 103 b. ii. 1.
2. This traverse derives its name, it is presumed, from the fact that
common language is used, and that it is more informal than other traverses.
COMMON VOUCHEE. In common recoveries, the person who vouched to
warranty. In this fictitious proceeding, the crier of the court usually
performs the office of a common vouchee. 2 Bl. Com. 358; 2 Bouv. Inst. n.
COMMONALTY, Eng. law. This word signifies, 1st. the common
people of England, as contradistinguished from the king and the nobles; 2d. the
body of a society as the masters, wardens, and commonalty of such a
COMMONER. One who is entitled with others to the use of a
COMMONS, Eng. law. Those subjects of the English nation who are
not noblemen. They are represented in parliament in the house of commons.
COMMONWEALTH, government. A commonwealth is properly a free
state, or republic, having a popular or representative government. The term has
been, applied to the government of Great Britain. It is not applicable to
absolute governments. The states composing the United States are, properly, so
2. It is a settled principle, that no sovereign power is amenable to
answer suits, either in its own courts or in those of a foreign country, unless
by its own consent. 4 Yeates, 494.
COMMORANCY, persons. An abiding dwelling, or continuing as an
inhabitant in any place. It consists, properly, in sleeping usually in one
COMMORANT. One residing or inhabiting a particular place.
COMMORIENTES. This Latin word signifies those wbo die at the
same time, as, for example, by shipwreck.
2. When several persons die by the same accident, and there is no
evidence as to who survived, the presumption of law is, they all died at the
same time. 2 Phillim. R. 261 Fearne on Rem. iv.; 5 B. & Adol. 91; Cro.
Eliz. 503; Bac. Ab. Execution, D; 1 Mer. R. 308. See Death; Survivor.
COMMUNICATION, contracts. Information; consultation;
2. In order to make a contract, it is essential there should be an
agreement; a bare communication or conference will not, therefore, amount to a
contract; nor can evidence of such communication be received in order to take
from, contradict, or alter a written agreement. 1 Dall. 426; 4 Dall. 340; 3
Serg. & Rawle, 609. Vide Pour-parler; Wbarton's Dig. Evid. R.
COMMUNINGS, Scotch law. This term is used to express the
negotiations which have taken place before making a contract, in relation
thereto. See Pourparler.
2. It is a general rule, that such communings or conversations, and the
propositions then made, are no part of the contract for no parol evidence will
be allowed to be given to contradict, alter, or vary a written instrument. 1
Serg. & R. 464 Id. 27; Add. R. 361; 2 Dall. R. 172 1 Binn. 616; 1 Yeates,
R. 140; 12 John. R. 77; 20 John. R. 49; 3 Conn. R. 9; 11 Mass. R. 30; 13 Mass.
R. 443; 1 Bibb's R. 271; 4 Bibb's R. 473; 3 Marsh. (Kty.) R. 333; Bunb. 175; 1
M. & S. 21; 1 Esp. C. 58; 3 Campb. R. 57.
COMMUNIO BONORUM, civil law. Common goods.
2. When a person has the management of common property, owned by himself
and others, not as partners, he is bound to account for the profits, and is
entitled to be reimbursed for the expenses which he has sustained by virtue of
the quasi-contract which is created by his act, called communio bonorum. Vicat;
1 Bouv. Inst. n. 907, note.
COMMUNITY. This word has several meanings; when used in common
parlance it signifies the body of the people.
2. In the civil law, by community is understood corporations, or bodies
politic. Dig. 3, 4.
3. In the French law, which has been adopted in this respect in
Louisiana, Civ. Code, art. 2371, community is a species of partnership, which a
man and woman contract when they are lawfully married to each other. It
consists of the profits of all, the effects of which the husband has the
administration and enjoyment, either of right or in fact; of the produce of the
reciprocal industry and labor of both husband and wife, and of the estates
which they may acquire during the marriage, either by donations made jointly to
them, or by purchase, or in any other similar way, even although the purchase
he made in the name of one of the two, and not of both; because in that case
the period of time when the purchase is made is alone attended to, and not the
person who made the purchase. 10 L. R. 146; Id. 172, 181; 1 N. S. 325; 4 N. S.
212. The debts contracted during the marriage enter into the community, and
must be acquitted out of the common fund; but not the debts contracted before
4. The community is either, first, conventional, or that which is formed
by an express agreement in the contract of marriage itself; by this contract
the legal community may be modified, as to the proportions which each shall
take, or as to the things which shall compose it; Civ. Code of L. art. 2393;
second, legal, which takes place when the parties make no agreement on this
subject in the contract of marriage; when it is regulated by the law of the
domicil they had at the time of marriage.
5. The effects which compose the community of gains, are divided *into
two equal portions between the heirs, at the dissolution of the marriage. Civ.
Code of L. art. 2375. See Poth. h. t.; Toull. h. t.; Civ. Code of Lo. tit. 6,
c. 2, s. 4.
6. In another sense, community is the right which all men have,
according to the laws of nature, to use all things. Wolff, Inst. 186.
COMMUTATION, punishments. The change of a punishment to which a
person has been condemned into a less severe one. This can be granted only by
the executive authority in which the pardoning power resides.
COMMUTATIVE CONTRACT, civil law. One in which each of the
contracting parties gives and, receives an equivalent. The contract of sale is
of this kind. The seller gives the thing sold, and receives the price, which is
the equivalent. The buyer gives the price and receives the thing sold, which is
2. These contracts are usually distributed into four classes, namely; Do
ut des; Facio ut facias; Facio ut des; Do ut facias. Poth. Obl. n. 13. See'
Civ. Code of Lo. art. 1761.
COMMUTATIVE JUSTICE. That virtue whose object is, to render to
every one what belongs to him, as nearly as may be, or that which governs
2. The word commutative is derived from commutare, which signifies to
exchange. Lepage, El. du Dr. ch. 1, art. 3, 3. See Justice.
TO COMMUTE. To substitute one punishment in the place of
another. For example, if a man be sentenced to be hung, the executive may, in
some states, commute his punishment to that of imprisonment.
COMPACT, contracts. In its more general sense, it signifies an
agreement. In its strict sense, it imports a contract between parties, which
creates obligations and rights capable of being enforeed, and contemplated as
such between the parties, in their distinct and independent characters. Story,
Const. B. 3, c. 3; Rutherf. Inst. B. 2, c. 6, 1. 2. The constitution of the
United States declares that " no state shall, without the consent of congress,
enter into agreement or compact with another state, or with a foreign power."
See 11 Pet: 1; 8 Wheat. 1 Bald. R. 60; 11 Pet. 185.
COMPANION, dom. rel. By 5 Edw. III., st. 5, c. 2, 1, it is
declared to be high treason in any one who " doth compass or imagine the death
of our lord the king, or our lady his companion," &c. See 2 Inst. 8, 9; 1
H. H. P. C. 124.
COMPANIONS, French law. This is a general term, comprehending
all persons who compose the crew of a ship or vessel. Poth. Mar. Contr. n.
COMPANY. An association of a number of individuals for the
purpose of carrying on some legitimate business.
2. This term is not synonymous with partnership, though every such
unincorporated compass is a partnership.
3. Usage has reserved this term to associations whose members are in
greater number, their capital more considerable, and their enterprizes greater,
either on account of their risk or importance.
4. When these companies are authorized by the government, they are known
by the name of corporations. (q. v.)
5. Sometimes the word is used to represent those members of a
partnership whose names do not appear in the name of the firm; as, A.B &
Company. Vide, 12 Toull. n, 97; Mortimer on Commerce, 128. Vide Club;
Corporation; Firm; Parties to actions; Partnership.
COMPARISON OF HANDWRITING, evidence. It is a general rule that
comparison of hands is not admissible; but to this there are some exceptions.
In some instances, when the antiquity of the writing makes it impossible for
any living witness to swear that he ever saw the party write, comparison of
handwriting, with documents known to be in his handwriting, has been admitted.
For the general principle, see Skin. 579, 639; 6 Mod. 167; 1 Lord Ray. 39, 40;
Holt. 291; 4 T. R. 497; 1 Esp. N. P. C. 14, 351; Peake's Evid. 69; 7 East, R.
282; B. N. P. 236; Anthon's N. P. 98, n.; 8 Price, 653; 11 Mass. R. 309 2
Greenl. R. 33 2 Johns. Cas. 211 1 Esp. 351; 1 Root, 307; Swift's Ev. 29; 1
Whart. Dig 245; 5 Binn. R. 349; Addison's R. 33; 2 M'Cord, 518; 1 Tyler, R. 4 6
Whart. R. 284; 3 Bouv. Inst. n. 3129-30. Vide Diploma.
TO COMPASS. To imagine; to contrive.
2. In England, to compass the death of the king is high treason. Bract.
1. 3, c. 2 Britt. c. 8; Mirror, c. 1, s. 4.
COMPATIBILITY. In speaking of public offices it is meant by this
term to convey the idea that two of them may be held by the same person at the
same time. It is the opposite of incompatibility. (q. v.)
COMPENSATIO CRIMINIS. The compensation or set-off of one crime
against another; for example, in questions of divorce, where one party claims
the divorce on the ground of adultery of his or her companion, the latter may
show that the complainant has been guilty of the same offence, and having
himself violated the contract, he cannot complain of its violation on the other
side. This principle is incorporated in the codes of most civilized nations. 1
Ought. Ord. per tit. 214; 1 Hagg. Consist. R. 144; 1 Hagg. Eccl. R. 714; 2
Paige, 108; 2 Dev. & Batt. 64. See Condonation.
COMPENSATION, chancery practice. The performance of tbat which a
court of chancery orders to be done on relieving a party who has broken a
condition, which is to place the opposite party in no worse situation than if
the condition had not been broken.
2. Courts of equity will not relieve from the consequences of a broken
condition, unless compensation can be made to the opposite party. Fonb. c. 6;
s. 51 n. (k) Newl. Contr: 251, et. seq.
3. When a simple mistake, not a fraud, affects a contract, but does not
change its essence, a court of equity will enforce it, upon making compensation
for the error, The principle upon wbich courts of equity act," says Lord
Chancellor Eldon, "is by all the authorities brought to the true standard, that
though the party had not a title at law, because he had not strictly complied
with the terms so as to entitle him to an action, (as to time for instance,)
yet if the time, though introduced, as some time must be fixed, where something
is to be done on one side, as a consideration for something to be done on the
other, is not the essence of the contract; a material object, to which they
looked in the first conception of it, even though the lapse of time has not
arisen from accident, a court of equity will compel the execution of the
contract upon this ground, that one party is ready to perform, and that the
other ma, have performance in substance if he will permit it." 13 Ves. 287. See
10 Ves. 505; 13 Ves. 73, 81, 426; 6 Ves. 675; 1 Cox, 59.
COMPENSATION, contracts. A reward for services rendered.
COMPENSATION, contracts, civil law. When two persons are equally
indebted to each other, there takes place a compensation between them, which
extinguishes both debts. Compensation is, therefore, a reciprocal liberation
between two persons who are creditors and debtors to each other, which
liberation takes place instead of payment, and prevents a circuity. Or it may
be more briefly defined as follows; compensatio est debiti et crediti intter se
2. Compeasation takes places, of course, by the more operation of law,
even unknown to the debtors the two debts are reciprocally extinguished, as
soon as they exist simultaneously, to the, amount of their respective sums.
Compensation takes place only between two debts, having equally for their
object a sum of money, or a certain quantity of consumable things of one and
the same kind, and which are equally liquidated and demandable. Compensation
takes place, whatever be the cause of either of the debts, except in case, 1st.
of a demand of restitution of a tbing of which the owner has been unjustly
deprived; 2d. of a demand of restitution of a deposit and a loan for use; 3d.
of a debt which has for its cause, aliments declared not liable to seizure.
Civil Code of. Louis. 2203 to 2208. Compensation is of three kinds: 1. legal or
by operation of law; 2. compensation by way of exception; and, 3. by
reconvention. 8 L. R. 158; Dig. lib. 16, t. 2; Code, lib. 4, t. 31; Inst. lib.
4, t' 6, s. 30; Poth. Obl. partie. 3eme, ch. 4eme, n. 623; Burge on Sur., Book
2, c. 6, p. 181.
3. Compensation very nearly resembles the set-off (q. v.) of the common
law. The principal difference is this, that a set-off, to have any effect, must
be pleaded; whereas compensation is effectual without any such plea, only the
balance is a debt. .2 Bouv. Inst. n. 1407.
COMPENSATION, crim. law; Compeusatio crimiuura, or recrimination
2. In cases of suits for divorce on the ground of adultery, a
compensation of the crime hinders its being granted; that is, if the defendant
proves that the party has also committed adultery, the defendant is absolved as
to the matters charged in the libel of the plaintiff. Ought. tit. 214, Pl. 1;
Clarke's Prax. tit. 115; Shelf. on Mar. & Div. 439; 1 Hagg. Cons. R. 148.
See Condonation; Divorce.
COMPENSATION, remedies. The damages recovered for an injury, or
the violation of a contract.. See Damages.
COMPERUIT AD DIEM, pleading. He appeared at the day. This is the
name of a plea in bar to an action of debt on a bail-bond. The usual
replication to this plea is nul tiel record: that there is not any such record
of appearance of the said. For forms of this plea, vide 5 Wentw. 470; Lil.
Entr. 114; 2 Chit. Pl. 527.
2. When the issue is joined on this plea, the trial is by the record.
Vide 1 Taunt. 23; Tidd, 239. And see, generally, Com. Dig. Pleader, 2 W. 31; 7
B. & C. 478.
COMPETENCY, evidence. The legal fitness or ability of a witness
to be heard on the trial of a cause. This term is also applied to written or
other evidence which may be legally given on such trial, as, depositions,
letters, account-books, and the like.
2. Prima facie every person offered is a competent witness, and must be
received, unless Lis incompetency (q. v.) appears. 9 State Tr. 652.
3. There is a difference between competency and credibility. A witness
may be competent, and, on examination, his story may be so contradictory and
improbable that he may not be believed; on the contrary he may be incompetent,
and yet be perfectly credible if he were examined.
4. The court are the sole judges of the competency of a witness, and
may, for the purpose of deciding whether the witness is or is not competent,
ascertain all the facts necessary to form a judgment. Vide 8 Watts, R. 227; and
articles Credibility; Incompetency; Interest; Witness.
5. In the French law, by competency is understood the right in a court
to exercise jurisdiction in a particular case; as, where the, law gives
jurisdiction to the court when a thousand francs shall be in dispute, the court
is competent if, the sum demanded is a thousand francs or upwards, although the
plaintiff may ultimately recover less.
COMPETENT WITNESS. One who is legally qualified to be heard to
testify in a cause. In Kentucky, Michigan, and Missouri, a will must be
attested, for the purpose of passing lands, by competent witnesses; but if
wbolly written by the testator, in Kentucky, it need not be so attested. See
Attesting witness; Credible witness; Disinterested witness; Respectable
witness; and Witness.
COMPETITORS, French law. Persons who compete or aspire to the
same office, rank or employment. As an English word in common use, it has a
much wider application. Ferriere, Dict. de Dr. h. t.
COMPILATION. A literary production, composed of the works of
others, and arranged in some methodical manner.
2. When a compilation requires in its execution taste, learning,
discrimination and intellectual labor, it 'is an object of copyright; as, for
example, Bacon's Abridgment. Curt. on Copyr. 186.
COMPLAINANT. One who makes a complaint. A plaintiff in a suit in
chancery is so called.
COMPLAINT, crim. law. The allegation made to a proper officer,
that some person, whether known or unknown, has been guilty of a designated
offence, with an offer to prove the fact, and a request that the offender may
2. To have a legal effect, the complaint must be supported by such
evidence as shows that an offence has been committed, and renders it certain or
probable that it was committed by the person named or described in the
COMPOS MENTIS. Of sound mind. See non compos mentis.
COMPOSITION, contracts. An agreement, made upon a sufficient
consideration, between a debtor and creditor, by which the creditor accepts
part of the debt due to him in satisfaction of the whole. Montagu on Compos. 1;
3 Co. 118; Co. Litt. 212, b; 4 Mod. 88; 1 Str. 426; 2 T. R. 24, 26; 2 Chit. R.
541, 564; 5 D. & R. 56 3 B. & C. 242; 1 R. & M. 188; 1 B. & A.
103, 440; 3 Moore's R. 11; 6 T. R. 263; 1 D. & R. 493; 2 Campb. R. 283; 2
M. & S. 120; 1 N. R. 124; Harr. Dig. Deed VIII.
2. In England, compositions were formerly allowed for crimes and
misdemeanors, even for murder. But these compositions are no longer allowed,
and even a qui tam action cannot be lawfully compounded. Bac. Ab. Actions qui
tam, See 2 John. 405; 9 John. 251; 10 John. 118; 11 John. 474; 6 N. H.-Rep.
COMPOSITION OF MATTER. In describing the subjects of patents,
the Act of Congress of July 4, 1836, sect. 6, uses the words "composition of
matter;" these words are usually applied to mixtures and chemical compositions,
and in these cases it is enough that the compound is new. Both the composition
and the mode of compounding may be considered as included in the invention,
when the compound is new.
COMPOUND INTEREST. Interest allowed upon interest; for example,
when a sum of money due for interest, is added to the principal, and then bears
interest. This is not, in general, allowed. See Interest for money.
COMPOUNDER, in Louisiana. He who makes a composition. An
amicable compounder is one who has undertaken by the agreement of the parties
to compound or settle differences. between them. Code of Pract. of Lo. art.
COMPOUNDING A FELONY, The act of a party immediately aggrieved,
who agrees with a thief or other felon that he will not prosecute him, on
condition that he return to him the goods stolen, or who takes a reward not to
prosecute. This is an offence punishable by fine and imprisonment. The mere
retaking by the owner of stolen goods is no offence, unless the offender is not
to be prosecuted. Hale, P. C. 546 1 Chit. Cr. Law, 4.
COMPROMISE, contracts. An agreement between two or more persons,
who, to avoid a lawsuit, amicably settle their differences, on such terms as
they can agree upon. Vide Com. Dig. App. tit. Compromise.
2. It will be proper to consider, 1. by whom the compromise must be
made; 2. its form; 3. the subject of the compromise; 4. its effects.
3. It must be made by a person having a right and capacity to enter into
the contract, and carry out his part of it, or by one having lawful authority
from such person.
4. The compromise may be by parol or in writing, and the writing may be
under seal or not: though as a general rule a partner cannot bind his copartner
by deed, unless expressly authorized, yet it would seem that a compromise with
the principal is an act which a partner may do in behalf of his copartners, and
that, though under seal, it would conclude the firm. 2 Swanst. 539.
5. The compromise may relate to a civil claim, either as a matter of
contract, or for a tort, but it must be of something uncertain; for if