C.

CABALLERIA, Spanish law. A measure of land, which is different in different
provinces. Diccionario por la Real Academia. In those parts of the United
States, which formerly belonged to Spain, the caballeria is a lot of one
hundred feet front and two hundred feet deep, and equal, in all respects, to
five peonias. (q.v.) 2 White's Coll. 49; 12 Pet. 444. note. See Fanegas.

CABINET. Certain officers who taken collectively make a board; as, the
president's, cabinet, which is usually composed of the secretary of state,
secretary of the treasury, the attorney general, and some others.
2. These officers are the advisers of the president.

CADASTRE. A term derived from the French, which has been adopted in
Louisiana, and which signifies the official statement of the quantity and
value of real property in any district, made for the purpose of justly
apportioning the taxes payable on such property. 3 Am. St. Pap. 679; 12 Pet.
428, n.

CADET. A younger brother, one trained up for the army or navy.

CADI. The name of a civil magistrate among the Turks.

CALENDER. An almanac. Julius Caesar ordained that the Roman year should
consist of 365 days, except every fourth year, which should contain 366, the
additional day to be reckoned by counting the twenty-fourth day of February
(which was the 6th of the calends of March) twice. See Bissextile is period
of time exceeds the solar year by eleven minutes or thereabouts, which
amounts to the error of a day in about 131 years. In 1582, the error
amounted to eleven days or more, which was corrected by Pope Gregory. Out of
this correction grew the distinction between Old and New Style. The
Gregorian or New Style was introduced into England in 1752, the 2d day of
September (0. S.) of that year being reckoned as the 14th day of September,
(N. S.) glee Almanac.

CALENDER, crim. law. A list of prisoners, containing their names, the time
when they were committed, and by whom, and the cause of their commitments.

CALIFORNIA. The name of one of the states of the United States. It was
admitted into the Union, by an Act of Congress, passed the 9th September,
1850, entitled "An act for the admission of the state of California into the
Union."
Sec. 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.
Sec. 2. Enacts that the state of California shall be entitled to two
representatives, until the representatives in Congress shall be apportioned
according to the actual enumeration of the inhabitants, of the United
States.
Sec. 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 which 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, authorizing lotteries, and creating corporations, except
by general laws, and from establishing any bank's of issue or circulation.
It provides also that every stockholder of a corporation or joint-stock
association, shall be individually and personally liable for his proportion
of all its, debts or liabilities. There is also a clause prohibiting
slavery, which, it is said, was inserted by the unanimous vote of the
delegates.

CALLING THE PLAINTIFF, practice. When a plaintiff perceives that he has not
given evidence to maintain his issue, and intends to become nonsuited, he
withdraws himself, when the cryer is ordered to call the plaintiff, and on
his failing to appear, he becomes nonsuited. 3 Bl. Com. 376.

CALUMNIATORS, civil law. Persons who accuse others, whom they know to be
innocent, of having committed crimes. Code 9, 46, 9.

CAMBIST. A person skilled in exchange; one who deals or trades in promissory
notes or bills of exchange.

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

CAMPARTUM. A part or portion of a larger field or ground, which would
otherwise be in gross or common. Vide Champerty.

CANAL. A trench dug for leading water in a particular direction, and
confining it.
2. Public canals are generally protected by the law which authorizes
their being made. Various points have arisen under numerous laws authorizing
the construction of canals, which have been decided in cases reported in 1
Yeates, 430; 1 Binn. 70; 1 Pennsyl. 462; 2 Pennsyl. 517; 7 Mass. 169; 1
Sumu. 46; 20 Johns. 103, 735; 2 Johns. 283; 7 John. Ch. 315; 1 Wend. 474; 5
Wend. 166; 8 Wend. 469; 4 Wend. 667; 6 Cowen, 698; 7 Cowen, 526 4 Hamm. 253;
5 Hamm. 141, 391; 6 Hamm. 126; 1 N. H. Rep. 339; See River.

CANCELLARIA CURIA. The name formerly given to the court of chancery.

CANCELLATION. Its general acceptation, is the act of crossing a writing; it
is used sometimes to signify the manual operation of tearing or destroying
the instrument itself. Hyde v. Hyde, 1 Eq. Cas. Abr. 409; Rob. on Wills,
367, n.
2. Cancelling a will, animo revocandi, is a revocation of it, and it is
unnecessary to show a complete destruction or obliteration. 2 B. & B. 650; 3
B. & A. 489; 2 Bl. R. 1043; 2 Nott & M'Cord, 272; Whart. Dig. Wills, c.; 4
Mass. 462. When a duplicate has been cancelled, animo revocandi, it is the
cancellation of both parts. 2 Lee, Ecc. R. 532.
3. But the mere act of cancelling a will is nothing, unless it be done
animo revocandi, and evidence is admissible to show, quo animo, the testator
cancelled it., 7 Johns. 394 2 Dall. 266; S. C. 2 Yeates, 170; 4 Serg. &
Rawle, 297; cited 2 Dall. 267, n.; 3 Hen. & Munf. 502; Rob. on Wills, 365;
Lovel, 178; Toll. on Ex'rs, Index, h.t.; 3 Stark. Ev. 1714; 1 Adams' Rep.
529 Mass. 307; 5 Conn. 262; 4 Wend. 474; 4 Wend. 585; 1 Harr. & M'H. 162; 4
Conn. 550; 8 Verm. 373; 1 N. H. Rep. 1; 4 N. H. Rep. 191; 2 Eccl. Rep. 23.
4. As to the effect of cancelling a deed, which has not been recorded,
see 1 Adams' Rep. 1; Palm. 403; Latch. 226; Gilb. Law, Ev. 109, 110; 2 H.
Bl. 263: 2 Johns. 87 1 Greenl. R. 78; 10 Mass. 403; 9 Pick. 105; 4 N. H.
Rep. 191; Greenl. Ev. Sec. 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 office.

CANON, eccl. law. This word is taken from the Greek, and signifies a rule or
law. In ecclesiastical law, it is also used to designate an order of
religious persons. Francis Duaren says, the reason why the ecclesiastics
called the rules they established canons or rules, (canones id est regulas)
and not laws, was modesty. They did not dare to call them (leges) laws, lest
they should seem to arrogate to themselves the authority of princes and
magistrates. De Sacris Ecclesiae Ministeriis, p. 2, in pref. See Law, Canon.

CANONIST. One well versed in canon or ecclesiastical law.

CANNON SHOT, war. The distance which a cannon will throw a ball. 2. The
whole space of the sea, within cannon shot of the coast, is considered as
making a part of the territory; and for that reason, a vessel taken under
the cannon of a neutral fortress, is not a lawful prize. Vatt. b. 1, c. 23,
s. 289, in finem Chitt. Law of Nat. 113; Mart. Law of Nat. b. 8, c. 6, s. 6;
3 Rob. Adm. Rep. 102, 336; 5 Id. 373; 3 Hagg. Adm. R. 257. This part of the
sea being considered as part of the adjacent territory, (q.v.) it follows
that magistrates can cause the orders of their governments to be executed
there. Three miles is considered as the greatest distance that the force of
gunpowder can carry a bomb or a ball. Azun. far. Law, part 2, c. 2, art. 2,
Sec. 15; Bouch. Inst. n. 1848. The anonymous author of the poem, Della
Natura, lib. 5, expresses this idea in the following lines: Tanto slavanza
in mar questo dominio, Quant esser puo d'antemurale e guardia, Fin dove puo
da terra in mar vibrandosi Correr di cavo bronzo acceso fulinine. Far as the
sovereign can defend his sway, Extends his empire o'er the watery way; The
shot sent thundering to the liquid plain, Assigns the limits of his just
domain. Vide League.

CAPACITY. This word, in the law sense, denotes some ability, power,
qualification, or competency of persons, natural, or artificial, for the
performance of civil acts, depending on their state or condition, as defined
or fixed by law; as, the capacity to devise, to bequeath, to grant or convey
lands; to take; or to take. and hold lands to make a contract, and the like.
2 Com. Dig. 294; Dane's Abr. h.t.
2. The constitution requires that the president, senators, and
representatives should have attained certain ages; and in the case of the
senators and representatives, that out these they have no capacity to serve
in these offices.
3. All laws which regulate the capacity of persons to contract, are
considered personal laws; such are the laws which relate to minority and
majority; to the powers of guardians or parents, or the disabilities of
coverture. The law of the domicil generally governs in cases of this kind.
Burge. on Sureties, 89.

CAPAX DOLI. Capable of committing crime. This is said of one who has
sufficient mind and understanding to be made responsible for his actions.
See, Discretion.

CAPE, English law. A judicial writ touching a plea of lands and tenements.
The writs which bear this name are of two kinds, namely, cape magnum, or
grand, cape, and cape parvum, or petit cape. The petit cape, is so called,
not so much on account of the smallness of the writ, as of the letter.
Fleta, lib. 6, c. 55, Sec. 40. For the difference between the form and the
use of these writs, see 2 Wms. Saund. Rep. 45, c, d; and Fleta, ubi sup.

CAPERS. Vessels of war owned by private persons, and different from ordinary
privateers (q.v.) only in size, being smaller. Bea. Lex. Mer. 230.

CAPIAS, practice. This word, the signification of which is "that you take,"
is applicable to many heads of practice. Several writs and processes,
commanding the sheriff to take the person of the defendant, are known by the
name of capias. For example: there are writs of capias ad respondendum,
writs of capias ad computandum, writs of capias ad satisfaciendum, &c., each
especially adapted to the purposes indicated by the words used for its
designation. See 3 Bl. Com. 281; 3 Bouv. Inst. n. 2794.

CAPIAS AD AUDIENDUM JUDICIUM, practice. A writ issued in a case of
misdemeanor, after the defendant has appeared and found guilty, and is not
present when called. This writ is to bring him to judgment. 4 BI. Com. 368.

CAPIAS AD COMPUTANDUM, practice. A writ issued in the action of account
render, upon the judgment quod computet, when the defendant refuses to
appear, in his proper person, before the auditors, and enter into his
account. According to the ancient practice, the defendant, after arrest upon
this process, might be delivered on main-prize, or in default of finding
mainpernors, he was committed to the Fleet prison, where the auditors
attended upon him to hear and receive his account. As the object of this
process is to compel the defendant to render an account, it does not appear
to be within the scope of acts abolishing imprisonment for debt. For
precedents, see Thesaurus Brevium, 38, 39, 40; 3 Leon. 149; 1 Lutw. 47, 51
Co. Ent. 46, 47; Rast. Ent. 14, b, 15.

CAPIAS AD RESPONDENDUM, practice. A writ commanding the sheriff, or other
proper officer, to "take the body of the defendant and to keep the same to
answer, ad respondendum, the plaintiff in a plea," &c. The amount of bail
demanded ought to, be indorsed on the writ.
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 him.
4. The special capias utlagatum, like the general writ, commands the
sheriff to take the defendant. The defendant is discharged upon an
attorney's undertaking, or upon giving bond to the sheriff, in the same
manner as when the writ is general. But the special writ also commands the
sheriff to inquire by a jury, of the defendant's goods and lands, to extend
and appraise the same, and to take them in the king's hands and safely keep
them, so that he may answer to the king for the value and issue's of the
same. 2 Arch. Pr. 161. See Outlawry.

CAPIAS IN WITHERNAM, practice. A writ issued after a return of elongata or
eloigned has been made to a writ of retorno habendo, commanding the sheriff
to take so many of the distrainer's goods by way of reprisal, as will equal
the goods mentioned in the retorno habendo. 2 Inst. 140; F. N. B. 68; and
see form in 2 Sell. Pr. 169.

CAPIATUR, pro fine. The name of a writ which was issued to levy a fine due
to the king. Bac. Ab. Fines and Amercements, in prin. See Judgment of
Capiatur.

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 the children, others the grandchildren or the great grandchildren of
the, deceased,) those more remote take er stirpem or per stirpes, that is,
they take respectively the shares their parents (or other relation standing
in the same degree with them of the surviving kindred entitled) who are in
the nearest degree of kindred to the intestate,) would have taken had they
respectively survived the intestate. Reeves' Law of Descent, Introd. xxvii.;
also 1 Rop. on Leg. 126, 130. See Per Capita; Per Stirpes; Stirpes;

CAPITAL, political economy, commerce. In political economy, it is that
portion of the produce of a country, which may be made directly available
either to support the human species or to the facilitating of production.
2. In commerce, as applied to individuals, it is those objects, whether
consisting of money or other property, which a merchant, trader, or other
person adventures in an undertaking, or which he contributes to the common
stock of a partnership. 2 Bouv. Inst. n. 1458.
3. It signifies money put out at interest.
4. The fund of a trading company or corporation is also called capital,
but in this sense the word stock is generally added to it; thus we say the
capital stock of the Bank of North America.

CAPITAL CRIME. One for the punishment of which death is inflicted, which
punishment is called capital punishment. Dane's Ab. Index, h.t.
2. The subject of capital punishment has occupied the attention of
enlightened men for a long time, particularly since the middle of the last
century; and none deserves to be more carefully investigated. The right of
punishing its members by society cannot be denied; but how far this right
extends, by the laws of nature or of God, has been much disputed by
theoretical writers, although it cannot be denied, that most nations,
ancient and modern, have deemed capital punishment to be within the scope of
the legitimate powers of government. Beccaria contends with zeal that the
punishment of death ought not to be inflicted in times of peace, nor at
other times, except in cases where the laws can be maintained in no other
way. Bee. Chap. 28.
3. It is not within the plan of this work to examine the question,
whether the punishment is allowed by the natural law. The principal
arguments for and against it are here given.
4.-1. The arguments used in favor of the abolition of capital
punishment, are;
5.-1st. That existence is a right which men hold from God, and which
society in body can, no more than a member of that society, deprive them of,
because society is governed by the immutable laws of humanity.
6.-2d. That, even should the right be admitted, this is a restraint
badly selected, which does not attain its end, death being less dreaded than
either solitary confinement for life, or the performance of hard labor and
disgrace for life.
7.-3d. That the infliction of the punishment does not prevent crimes,
any more than, 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 punishments; and that if they keep
within these bounds, the law may permit an extreme remedy, even the
punishment of death, when it is requisite for the safety of society.
14.-2d. That, whatever be said to the contrary, this punishment is
more repulsive than any other, as life is esteemed above all things, and
death is considered as the greatest of evils, particularly when it is
accompanied by infamy.
15.-3d. That restrained, as this punishment ought to be, to the
greatest crimes, it can never lose its efficacy as an example, nor harden
the multitude by the frequency of executions.
16.-4th. That unless this punishment be placed at the top of the scale
of punishment, criminals will always kill, when they can, while committing
an inferior crime, as the punishment will be increased only by a more
protracted imprisonment, where they still will hope for a pardon or an
escape.
17th.-5th. The essays which have been made by two countries at least;
Russia, under the reign of Elizabeth, and Tuscany, under the reign of
Leopold, where the punishment of death was abolished, have proved
unsuccessful, as that punishment has been restored in both.
18. Arguments on theological grounds have also been advanced on both
sides. See Candlish's Contributions towards the Exposition of the Book of
Genesis, pp. 203-7. Vide Beccaria on Crimes and Punishments; Voltaire,
h.t.; Livingston's Report on a Plan of a Penal Code; Liv. Syst. Pen. Law,
22; Bentham on Legislation, part 3, c. 9; Report to the N. Y. Legislature;
18 Am. Jur. 334.

CAPITATION. A poll tax; an imposition which is yearly laid on each person
according to his estate and ability.
2. The Constitution of the United States provides that "no capitation,
or other direct tax, shall be laid, unless in proportion to the census, or
enumeration, therein before directed to be taken." Art. 1, s. 9, n. 4. See 3
Dall. 171; 5 Wheat. 317.

CAPITE, descents. By the head. Distribution or succession per capita, is
said to take place when every one of the kindred in equal degree, and not
jure representationis, receive an equal part of an estate.

CAPITULARIES.The Capitularia or Capitularies, was a code of laws promulgated
by Childebert, Clotaire, Carloman, Pepin, Charlemagne, and other kings. It
was so called from the small chapters or heads into which they were divided.
The edition by Baluze, published in 1677, is said to be the best.

CAPITULATION, war. The treaty which determines the conditions under which a
fortified place is abandoned to the commanding officer of the army which
besieges it.
2. On surrender by capitulation, all the property of the inhabitants
protected by the articles, is considered by the law of nations as neutral,
and not subject to capture on the high seas, by the belligerent or its ally.
2 Dall.

CAPITULATION, civ.law. An agreement by which the prince and the people, or
those who have the right of. the people, regulate the manner in which the
government is to be administered. Wolff, Sec. 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 willful 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 an 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 over the crew, being
responsible for the abuse of his authority. Ab. on Shipp. 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 powers 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. Sec. 116 to 123, Sec. 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 inferior 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
parchments. 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 has lost his liberty, a captive does not by his
captivity lose his civil rights.

CAPTOR, war. One who has taken property from an enemy; this term is also
employed to designate one who has taken an enemy.
2. Formerly, goods taken in war were adjudged to belong to the captor;
they are now considered to vest primarily, in the state or sovereign, and
belong to the individual captors only to the extent that the municipal laws
provide.
3. Captors are responsible to the owners of the property for all losses
and damages, when the capture is tortious and without reasonable cause in
the exercise of belligerent rights. But if the capture is originally
justifiable, the captors will not be responsible, unless by subsequent
misconduct they become trespassers ab initio. i Rob. R. 93, 96. See 2 Gall.
374; 1 Gall. 274; 1 Pet. Adm. Dee. 116; 1 Mason, R. 14.

CAPTURE, war. The taking of property by one belligerent from another.
2. To make a good capture of a ship, it must be subdued and taken by an
enemy in open war, or by way of reprisals, or by a pirate, and with intent
to deprive the owner of it.
3. Capture may be with intent to possess both ship and cargo, or only
to seize the goods of the enemy, or contraband goods which are on board: The
former is the capture of the ship in the proper sense of the word; the
latter is only an arrest and detention, without 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 much 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 the 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. 729, 744.

CARNAL KNOWLEDGE, crim. law. This phrase is used to signify a sexual
connexion; as, rape is the carnal knowledge of a woman, &c. See Rape.

CARNALLY KNEW, pleadings. This is a technical phrase, essential in an
indictment to charge the defendant with the crime of rape; no other word or
circumlocution will answer the same purpose as these word's. Vide Ravished,
and Bac. Ab. Indictment, G 1; Com. Dig. Indictment, G 6; 1 Hale, 632; 3
Inst. 60; Co. Litt. 137; ) 1 Chit. Cr. Law, *243. It has been doubted
whether these words were indispensible. 1 East, P. C. 448. But it would be
unsafe to omit them.

CARRIERS, contracts. There are two kinds of carriers, namely, common
carriers, (q.v.) who have been considered under another head; and private
carriers. These latter are persons who, although they do not undertake to
transport the goods of such as choose to employ them, yet agree to carry the
goods of some particular person for hire, from one place to another.
2. In such case the carrier incurs no responsibility beyond that of any
other ordinary bailee for hire, that is to say, the responsibility of
ordinary diligence. 2 Bos. & Pull. 417; 4 Taunt. 787; Selw. N. P. 382 n.; 1
Wend. R. 272; 1 Hayw. R. 14; 2 Dana, R. 430; 6 Taunt. 577; Jones, Bailm.
121; Story on Bailm, Sec. 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 writing.
2. In the course of business, it not unfrequently occurs that for the
sake of convenience, signatures in blank are given with authority to fill
them up.. These are binding upon the parties. But the blank must be filled
up by the very person authorized. 6 Mart. L. R. 707. Vide Ch. on Bills, 702
Penna. R. 200. Vide Blank.

CARTEL,war. An agreement between two belligerent powers for the delivery of
prisoners or deserters, and also a written challenge to a duel.
2. Cartel ship, is a ship commissioned in time of war, to exchange
prisoners, or to carry any proposals between hostile powers; she must carry
no cargo, ammunitions, or implements of war, except a single gun for
signals. The conduct of ships of this description cannot be too narrowly
watched. The service on which they are sent is so highly important to the
interests of humanity, that it is peculiarly incumbent on all parties to
take care that it should be conducted in such a manner as not to become a
subject of jealousy and distrust between the two nations. 4 Rob. R. 357.
Vide Merl. Rep. b. t.; Dane's Ab. c. 40, a. 6, 7; Pet. C. C. R. 106; 3 C.
Rob. 141 C. Rob. 336; 1 Dods. R. 60.

CARTMEN. Persons who carry goods and merchandise in carts, either for great
or short distances, for hire.
2. Cartmen who undertake to carry goods for hire as a common
employment, are common carriers. Story on Bailm. Sec. 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 justice, a 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 to
which covenant or trespass will not lie. Steph. Pl. 153 Wodd. 167 Ham. N. P.
1. Vide Writ of trespass on the case. In its most comprehensive
signification, case includes assumpsit as well as an action in form ex
delicto; but when simply mentioned, it is usually understood to mean an
action in form ex delicto. 7 T. R. 36. It is a liberal action; Burr, 906,
1011 1 Bl. Rep. 199; bailable at common law. 2 Barr 927-8; founded on the
justice and conscience of the Tiff's case, and is in the nature of a bill in
equity 3 Burr, 1353, 1357 and the substance of a count in case is the damage
assigned. 1 Bl. Rep. 200.
2. An action on the case lies to recover damages for torts not
committed with force actual or implied, or having been occasioned by force,
where the matter affected was not tangible, or where the injury was not
immediate but consequential; 11 Mass. 59, 137 1 Yeates, 586; 6 S. & R. 348;
12 S. & R. 210; 18 John. 257 19 John. 381; 6 Call, 44; 2 Dana, 378 1 Marsh.
194; 2 H. & M. 423; Harper, 113; Coxe, 339; or where the interest in the
property was only in reversion. 8 Pick. 235; 7 Conn. 3282 Green, 8 1 John.
511; 3 Hawks, 2462 Murph. 61; 2 N. H. Rep. 430. In these several cases
trespass cannot be sustained. 4 T. 11. 489 7 T. R. 9. Case is also the
proper remedy for a wrongful act done under legal process regularly issuing
from a court of competent jurisdiction. 2 Conn. 700 11 Mass. 500 6 Greenl.
421; 1 Bailey, 441, 457; 9 Conn. 141; 2 Litt. 234; 3 Conn. 5373 Gill & John.
377. Vide Regular and irregular process.
3. It will be proper to consider, 1. in what cases the action of
trespass on the case lies; 2. the pleadings 3. the evidence; 4. the
judgment.
4.-1. This action lies for injuries, 1. to the absolute rights of
persons 2. to the relative rights of persons; 3. to personal property; 4. to
real property.
5.-1. When the injury has been done to the absolute rights of persons
by an act not immediate but consequential, as in the case of special damages
arising 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, but when the injury is done in the house of another, case is the
proper remedy. 5 Greenl. 546.
7.-3. When the injury to personal property is without force and. not
immediate, but consequential, or when the plaintiff Is right to it is in
reversion, as, where property is injured by a third person while in the
hands of a hirer; 3 Camp. 187; 2 Murph. 62; 3 Hawks, 246, case is the proper
remedy. 8 East, 693; Ld. Raym. 1399; Str. 634; 1 Chit. Pl. 138.
8.-4. When the real property which has been injured is corporeal, and
the injury is not immediate but consequential, as for example, putting a
spout so near the plaintiff's land that the water runs upon it; 1 Chit. Pl.
126, 141; Str. 634; or where the plaintiff's property is only in reversion.
When the injury has been done to, incorporeal rights, as for obstructing a
private way, or disturbing a party in the use of a pew, or for injury to a
franchise, as a ferry, and the like, case is the proper remedy. l Chit. Pl.
143.
9.-2. The declaration in case, technically so called, differs from a
declaration in trespass, chiefly in this, that in case, it must not, in
general, state the injury to have been committed vi et armis; 3 Conn. 64;
see 2 Ham. 169; 11 Mass. 57; Coxe, 339; yet after verdict, the words "with
force and arms" will, be rejected as surplusage; Harp. 122; and it ought not
to conclude contra pacem. Com. Dig. Action on the Case, C 3. The plea is
usually the general issue, not guilty.
10.-3. Any matter may, in general, be given in evidence, under the
plea of not guilty, except the statute of limitations. In cases of slander
and a few other instances, however, this cannot be done. 1 Saund. 130, n. 1;
Wilies, 20. When the plaintiff declares in case, with averments appropriate
to that form of action and the evidence shows that the injury was trespass;
or when he declares in trespass, and the evidence proves an injury for which
case will lie, and not trespass, the defendant should be acquitted by the
jury, or the plaintiff should be nonsuited. 5 Mass. 560; 16 Mass. 451; Coxe,
339; 3 John. 468.
11.-4. The judgment is, that the plaintiff recover a sum of money,
ascertained by a jury, for his damages sustained by the committing of the
grievances complained of in the declaration, and costs.
12. In the civil law, an action was given in all cases of nominate
contracts, which was always of the same name. But in innominate contracts,
which had always the same consideration, but not the same name, there could
be no action of the same denomination, but an action which arose from the
fact, in factum, or an action with a form which arose from the particular
circumstance, praescriptis verbis actio. Lec. Elem. Sec. 779. Vide,
generally, Bouv. Inst. Index, h.t.

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. Sec. 7, it is usual in the
agreement to insert a clause that the case stated shall be considered in the
nature of special verdict.
3. In that case, a writ of error lies on the judgment which may be
rendered upon it. And a writ of error will also lie on a judgment on a case
stated, when the parties have agreed to it. 8 Serg. & Rawle, 529.
4. In another sense, by a case stated is understood a statement of all
the facts of a case, together with the names of the witnesses, and, a detail
of the documents which are to support them. In other words, it is a brief.
(q.v.)

CASH, commerce. Money on hand, which a merchant, trader or other person has
to do business with.
2. Cash price, in contracts, is the price of articles paid for in cash,
in contradistinction to the credit price. Pard. n. 85; Chipm. Contr. 110. In
common parlance, bank notes are considered as cash; but bills receivable are
not.

CASH-BOOK, Commerce, accounts. One in which a merchant or trader enters an
account of all the money, or paper moneys he receives or pays. An entry of
the same thing ought to be made under the proper dates, in the journal. The
object of the cash-book is to afford a constant facility to ascertain the
true state of a man's cash. Pard. n. 87.

CASHIER. An officer of a moneyed institution, who is entitled by virtue of
his office to take care of the cash or money of such institution.
2. The cashier of a bank is usually entrusted with all the funds of the
bank, its notes, bills, and other choses in action, to be used from time to
time for the ordinary and extraordinary exigencies of the bank. He usually
receives directly, or through subordinate officers, all moneys and notes of
the bank delivers 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 discounted by 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. Sec. 114, 115; 3
Halst. R. 1; 12 Wheat. R. 183; 1 Watts & Serg. 161.

To CASHIER, punishment. To break; to deprive a military man of his office.
Example: every officer who shall be convicted, before a general court
martial, of leaving signed a false certificate relating to the absence of
either officer or private soldier, or relative to his daily pay, shall be,
cashiered. Articles of war, art. 14.

CASSATION, French law. A decision which emanates from the sovereign
authority, and by which a sentence or judgment in the last resort is
annulled., Merl. Rep. h.t. This jurisdiction is now given to the Cour de
Cassation.
2. This court is composed of fifty-two judges, including four
presidents, an attorney-general, and six substitutes, bearing the title of
advocates general; a chief clerk, four subordinate clerks, and eight
huissiers. Its jurisdiction extends to the examination and superintendence
of the judgments and decrees of the inferior court, both in civil and
criminal cases. It is divided into three sections, namely, the section des
requetes, the section civile, and the section criminelle. Merl. Rep. mots
Cour de Cassation.

CASSETUR BREVE, practice. That the writ be quashed. This is the name of a
judgment sometime sentered against a plaintiff when he cannot prosecute his
writ with effect, in consequence of some allegation on the defendant's part.
The plaintiff, in order to put an end to any further proceeding in the
action,enters on the roll cassetur breve, the effect of which is to quash
his own writ,which exonerates him from the liability to any future costs,
and allows him to sue out new process. A cassetur bill a may be entered with
like effect. 3 Bl. Com. 340; and vide 5 T. R. 634; Gould's Plead. c. 5,
Sec. 139; 3 Bouv. Inst. n. 2913-14. Vide To quash.

CASTIGATORY, punishments. An engine used to punish women who have been
convicted of being common scolds it is sometimes called the trebucket,
tumbrel, ducking stool, or cucking stool. This barbarous punishment has
perhaps never been inflicted in the United States. 12 S. & It. 225. Vide
Common Scold.

CASTING VOTE, legislation. The vote given by the president or speaker of a
deliberate assembly; when the votes of the other members are equal on both
sides, the casting vote then decides the question. Dane's Ab. h.t.
CASTRATION, crim. law. The act of gelding. When this act is maliciously
performed upon a man, it is a mayhem, and punishable as such, although the
sufferer consented to it.
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 of castration, when complete, are impotence and sterility. 1

Beck's Med. Jur. 72.

CASUPROVISO, practice. A writ of entry given by the statute of Gloucester,
c. 7, when a tenant in dower aliens in fee or for life. It might have been
brought by the reversioner against the alienee. This, is perhaps an obsolete
remedy, having yielded to the writ of ejectment. F. N. B. 205 Dane's Ab.
Index, h.t.

CASUAL. What happens fortuitously what is accidental as, the casual
revenue's of the government, are those which are contingent or uncertain.

CASUAL EJECTOR, practice, 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, Sec. 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 P.Wms. 290, 293, n.; 1 Cro. 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 a man yet alive, is generally
void.Merl. Rep. mots Succession Future. Vide also Dig. 14,6, and Lesion.

CATCHPOLE, officer. A name formerly given to a sheriff's deputy, or to a
constable, or other officer whose duty it is to arrest persons. He was a
sort of serjeant. The word is not now in use as an official designation.
Minshew ad verb.

CAUSA MATRIMONII PRAELOCUTI, Engl. law. An obsolete writ, which lies when a
woman gives land to a man in fee simple, or for a less estate, to the intent
that he should marry her and he refuses upon request. New. Nat. Bre. 455.

CAUSE, civ. law. This word has two meanings. 1. It signifies the delivery of

the thing, or the accomplishment of the act which is the object of a
convention. Datio vel factum, quibus ab una parte conventio, impleri caepta
est. 6 Toull. n. 13, 166. 2. it is the consideration or motive for making a
contract. An obligation without a cause, or with a false or unlawful cause,
has no effect; but an engagement is not the less valid, though the cause be
not expressed. The cause is illicit, when it is forbidden by law, when it is
contra bones mores, or public order. Dig. 2, 14, 7, 4; Civ. Code of Lo. a.
1887-1894 Code Civil, liv. 3, c. 2, s. 4, art. 1131-1133; Toull. liv. 3,
tit. 3, c. 2, s. 4.

CAUSE, contra torts, crim. That which produces an effect.
2. In considering a contract, an injury, or a crime, the law for many
purposes looks to the immediate, and not to any remote cause. Bac. Max. Reg.
1; Bac. Ab. Damages, E; Sid. 433; 2 Taunt. 314. If the cause be lawful, the
party will be justified; if unlawful, he will be condemned. The following is
an example in criminal law of an immediate and remote cause. If Peter, of
malice prepense, should discharge a pistol at Paul, and miss him, and then
cast away the pistol and fly and, being pursued by Paul, he turn round, and
kill him with a dagger, the law considers the first as the impulsive cause,
and Peter would be guilty of murder. But if Peter, with his dagger drawn,
had fallen down, and Paul in his haste had fallen upon it and killed
himself, the cause of Paul's death would have been too remote to charge
Peter as the murderer. Id.
3. In cases of insurance, the general rule is that the immediate and
not the remote cause of the loss is to be considered; causa proximo non
remota spedatur. This rule may, in some cases, apply to carriers. Story,
Bailm. Sec. 515.
4. For the reach of contracts, the contractor is liable for the
immediate effects of such breach, but not for any remote cause, as the
failure of a party who was to receive money, and did not receive it, in
consequence of which he was compelled to stop payment. 1 Brock. Cir. C. Rep.
103. See Remote; and also Domat, liv. 3, t. 5, s. 2, n. 4; Toull. liv. 3, n.
286; 6 Bing. R. 716; 6 Ves. 496; Pal. Ag. by Lloyd, 10; Story, Ag. Sec. 200;
3 Sumn. R. 38.

CAUSE, pleading.The reason; the motive.
2. In a replication de injuria, for example, the plaintiff alleges that
the defendant of his own wrong, and without the cause by him in his plea
alleged, did, &c. The word cause here means without the matter of excuse
alleged, and though in the singular number, it puts in issue all the facts
in the plea, which constitute but one cause. 8 Co. 67; 11 East, 451; 1 Chit.
Pl. 585.

CAUSE, practice. A Contested question before a court of justice; it is a
Suit or action. Causes are civil or criminal. Wood's Civ. Law, 302; Code, 2,
416.

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 Bing.
686.
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 establishment within the state, he is not required to give such

caution. Faelix, Droit. Intern. Prive, n. 106.

CAUTION. A term of the Roman civil law, which is used in various senses. It
signifies, sometimes, security, or security promised. Generally every
writing is called cautio, a caution by which any object is provided for.
Vicat, ad verb. In the common law a distinction is made between a contract
and the security. The contract may be good and the security void. The
contract may be divisible, and the security entire and indivisible. 2 Burr,
1082. The securities or cautions judicially required of the defendant, are,
judicio sisti, to attend and appear during the pendency of the suit; de
rato, to confirm the acts of his attorney or proctor; judicium solvi, to pay
the sum adjudged against him. Coop. Just. 647; Hall's Admiralty Practice,
12; 2 Brown, Civ. Law, 356.

CAUTION, TURATORY, Scotch law. Juratory caution is that which a suspender
swears is the best he can offer in order to obtain a suspension. Where the
suspender cannot, from his low or suspected circumstances, procure
unquestionable security, juratory caution is admitted. Ersk. Pr. L. Scot. 4,
3, 6.

CAUTIONER, Scotch law, contracts. One who becomes bound as caution or surety
for another, for the performance of any obligation or contract contained in
a deed.

CAVEAT, practice. That he beware. 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, Sec. 3; Ayl. Parer. 145 Nelson's Ab.
h.t.; Dane's Ab. c. 223, a. 15, Sec. 2, and a. 8, Sec. 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. Sec. 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 alive, 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. Sec. 334. The rule of the civil law on this
subject will be found in Dig. lib. 50, t. 16, 1. 132 et 141; lib. 5, t. 2,
1. 6; lib. 28, t. 2, 1. 12.

CAETERORUM. 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 representation 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 Indians not taxed, three-
fifths of all other persons. The actual enumeration shall be made within
three years after the first meeting of the congress of the United States,
and within every subsequent term of ten years, in such a manner as they
shall by law direct." Art. 1, s. 2; vide 1 Story, L. U. S., 73, 722, 751; 2
Id. 1134, 1139, 1169, 1194; 3 Id. 1776; 4 Sharsw. continuation, 2179.

CENT, money. A copper coin of the United States of the value of ten mills;
ten of them are equal to a dime, and one hundred, to one dollar. Each cent
is required to contain one hundred and sixty-eight grains. Act of January
18th, 1837, 4 Sharsw. cont. of Story',s L. U. S. 2524.

CENTIME. The name of a French money; the one hundredth part of a franc.

CENTRAL. Relating to the centre, or placed in the centre; as, the central
courts of the United States, are those located in the city of Washington,
whose jurisdiction extends over the whole country. These are, first, the
Senate of the United States, when organized to try impeachments; secondly,
the Supreme Court of the United States.
2. The government of the United States is the central government.

CENTUMVIRI, civil law. the citizens of Rome were distributed into thirty-
five tribes, and three persons out of each tribe were elected judges, who
were called centumviri, although they were one hundred and five in number.
They were distributed into four different tribunals, but in certain causes
called centumvirales causas, the judgments of the four tribunals were
necessary. Vicat,.ad verb.; 3 Bl. Com. 315.

CENTURY, civil law. One hundred. The Roman people were divided into
centuries. In England they were divided into hundreds. Vide Hundred. Century
also means one hundred years.

CEPI. A Latin word signifying I have taken. Cepi corpus, I have taken the
body; cepi and B. B., I have taken the body and discharged him on bail bond;
cepi corpus et est in custodia, I have taken the body and it is in custody;
cepi corpus, et est languidus, I have taken the body of, &c. and he is sick.
These are some of the various returns made by the sheriff to a writ of
capias.

CEPI CORPUS, practice. The return which the sheriff, or other proper 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.
123.
3. It is a maxim of law, that, that is certain which may be made
certain; certum est quod certum reddi potest Co. Litt. 43; for example, when
a man sells the oil he has in his store at so much a gallon, although there
is uncertainty as to the quantity of oil, yet inasmuch as it can be
ascertained, the maxim applies, and the sale is good. Vide generally, Story,
Eq. El. Sec. 240 to 256; Mitf. Pl. by Jeremy, 41; Coop. Eq. Pl. 5; Wigr. on
Disc. 77.

CERTAINTY, pleading. By certainty is understood a clear and distinct
statement of the facts which constitute the cause of action, or ground of
defence, so that they may be understood by the party who is to answer them,
by the jury who are to ascertain the truth of the allegations, and by the
court who are to give the judgment. Cowp. 682; Co. Litt. 308; 2 Bos. & Pull.
267; 13 East, R. 107; Com. Dig. Pleader, C 17; Hob. 295. Certainty has been
stated by Lord Coke, Co. Litt. 303, a, to be of three sorts namely, 1.
certainty to a common intent 2. to a certain intent in general; and, 3. to a
certain intent in every particular. In the case of Dovaston.v. Paine Buller,
J. said he remembered to have heard Mr. Justice Ashton treat these
distinctions as a jargon of words without meaning; 2 H. Bl. 530. They have,
however, long been made, and ought not altogether to be departed from.
2.-1. Certainty to a common intent is simply a rule of construction.
It occurs when words are used which will bear a natural sense, and also an
artificial one, or one to be made out by argument or inference. Upon the
ground of this rule the natural sense of words is adopted, without addition.
2 H. Bl. 530.
3.-2. Certainty to, a certain intent in general, is a greater degree
of certainty than the last, and means what upon a fair and reasonable
construction may be called certain, without recurring to possible facts
which do not appear; 9 Johns. R. 317; and is what is required in
declarations, replications, and indictments, in the charge or accusation,
and in returns to writs of mandamus. See 1 Saund. 49, n. 1; 1 Dougl. 159; 2
Johns. Cas. 339; Cowp. 682; 2 Mass. R. 363 by some of which authorities, it
would seem, certainty to a common intent is sufficient in a declaration.
4.-3. The third degree of certainty, is that which precludes all
argument, inference, or presumption against the party, pleading, and is that
technical accuracy which is not liable to the most subtle and scrupulous
objections, so that it is not merely a rule of construction, but of
addition; for where this certainty is necessary, the party must not only
state the facts of his case in the most precise way, but add to them such as
show that they are not to be controverted, and, as it were, anticipate the
case of his adversary. Lawes on Pl. 54, 55. See 1 Chitty on Pl. 235 to 241.

CERTIFICATE, practice. A writing made in any court, and properly
authenticated, to give notice to another court of anything done therein; or
it is a writing by which an officer or other person bears testimony that a
fact has or has not taken place.
2. There are two kinds of certificates; those required by the law, and
those which are merely voluntary. Of the first kind are certificates given
to an insolvent of his discharge, and those given to aliens, that they have
been naturalized. Voluntary certificates are those which are not required by
law, but which are given of the mere motion of the party. The former are
evidence of the facts therein mentioned, while the latter are not entitled
to any credit, because the facts certified, may be proved in the usual way
under the solemnity of an oath or affirmation. 2 Com. Dig. 306; Ayl. Parerg.
157; Greenl. Ev. Sec. 498.

CERTIFICATE, JUDGE'S, English practice. The judge who tries the cause is
authorized by several statutes in certain cases to certify, so as to decide
when the party or parties shall or shall not be entitled to costs. It is of
great importance in many cases, that these certificates should be obtained
at the time of trial. See 3 Camp. R. 316; 5 B. & A. 796; Tidd's Pr. 879; 3
Ch. Pr. 458, 486.
2. The Lord Chancellor often requires the opinion of the judges upon a
question of law; to obtain this, a case is trained, containing the
admissions on both sides, and upon these the legal question is stated; the
case is then submitted to the judges, who, after hearing counsel, transmit
to the chancellor their opinion. This opinion, signed by the judges of the
court, is called their certificate. See 3 Bl. Com. 453.

CERTIFICATE, ATTORNEY'S, Practice, English law. By statute 37 Geo. III., c.
90, s. 26, 28, attorneys are required to deliver to the commissioners of
stamp duties, a paper or note in writing, containing the name and usual
place of residence of such person, and thereupon, on paying certain duties,
such person is entitled to a certificate attesting the payment of such
duties, which must be renewed yearly. And by the 30th section, an attorney
is liable to the penalty of fifty pounds for practising without.

CERTIFICATION or CERTIFICATE OF ASSISE. A term used in the old English law,
applicable to a writ granted for the reexamination or retrial 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, 179.
3. Sometimes the writ of certiorari is used as auxiliary process, in
order to obtain a full return to some other process. When, for example, the
record of an inferior court is brought before a superior court by appeal,
writ of error, or other lawful mode, and there is a manifest defect, or a
suggestion of diminution, a certiorari is awarded requiring a perfect
transcript and all papers. 3 Dall. R. 413; 3 John. R. 23; 7 Cranch, R. 288;
2 South. R. 270, 551; 1 Blackf. R. 32; 9 Wheat. R. 526; 7 Halst. R. 85; 3
Dev. R. 117; 1 Dev. & Bat. 382; 11 Mass. 414; 2 Munf. R. 229; 2 Cowen, R.
38. Vide Bouv. Inst. Index, h.t.

CESSET EXECUTIO. The staying of an execution.
2. When a judgment has been entered, there is sometimes, by the
agreement of the parties, a cesset executio for a period of time fixed upon
and when the defendant enters security for the amount of the judgment, there
is a cesset executio until the time allowed by law has expired.

CESSET PROCESSUS, practice. An entry made on the record that there be a stay
of the procas or proceedings.
2. This is made in cases where the plaintiff has become insolvent after
action brought. 2 Dougl. 627.

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 chattels to be distrained. F. N. B. 208.

CESSIO BONORUM, civil law. The relinquishment which a debtor made of his
property for the benefit of his creditors.
2. This exempted the debtor from imprisonment, not, however, without
leaving an ignominious stain on his reputation. Dig. 2, 4, 25; Id. 48, 19,
1; Nov. 4, c. 3, and Nov. 135. By the latter Novel, an honest unfortunate
debtor might be discharged, by simply affirming that he was insolvent,
without having recourse to the benefit of cession. By the cession the
creditors acquired title to all the property of the insolvent debtor.
3. The cession discharged the debtor only to the extent of the property
ceded, and he remained responsible for the difference. Dom. Lois Civ. liv.
4, tit. 5., s. 1, n. 2. Vide, for the law of Louisiana, Code, art. 2166, et
seq. 2 M. R. 112; 2 L. R. 354; 11 L. R. 531; 5 N. S. 299; 2 L. R. 39; 2 N.
S. 108; 3 M. R. 232; 4 Wheat. 122; and Abandonment.

CESSION, contracts. Yielding up; release.
2. France ceded Louisiana to the United States, by the treaty of Paris,
of April 30, 1803 Spain made a cession of East and West Florida, by the
treaty of February 22, 1819. Cessions have been severally made of a part of
their territory, by New York, Virginia, Massachusetts, Connecticut) South
Carolina, North Carolina, and Georgia. Vide Gord. Dig. art. 2236 to 2250.

CESSION, civil law. The, act by which a party assigns or transfers property
to a other; an assignment.

CESSION, eccl. law. When an ecclesiastic is created bishop, or when a parson
takes another benefice, without dispensation, the first benefice becomes
void by a legal cession, or surrender. Cowel, h.t.

CESTUI. He. This word is frequently used in composition as, cestui que
trust, cestui que vie, &c.

CESTUI QUE TRUST, A barbarous phrase, to signify the beneficiary of an
estate held in trust. He for whose benefit another person is enfeoffed or
seised of land or tenements, or is possessed of personal property. The
cestui que trust is entitled to receive the rents and profits of the land;
he may direct such conveyances, consistent with the trust, deed or will, as
he shall choose, and the trustee (q.v.) is bound to execute them: he may
defend his title in the name of the trustee. 1 Cruise, Dig. tit. 12, c. 4,
s. 4; vide Vin. Ab. Trust, U, W, X, and Y 1 Vern. 14; Dane's Ab. Index,
h.t.: 1 Story, Eq. Jur. Sec. 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, Sec. 6. See, generally, 6 J. J. Marsh. 120; 1 Munf. 468; 1 Russ.
on Cr. 275; 6 J. J. Marsh. 1 19; Coust. Rep. 10 7; Joy on Chal. passim.

CHALLENGE, practice. An exception made to jurors who are to pass on a trial;
to a judge; or to a sheriff.
2. It will be proper here to consider, 1. the several kinds of
challenges; 2. by whom they are to be made; 3. the time and manner of making
them.
3.-1. The several kinds of challenges may be divided into those which
are peremptory, and those which are for cause. 1. Peremptory challenges are
those 'which are made without assigning any reason, and which the court must
allow. The number of these which the prisoner was allowed at common law, in
all cases of felony, was thirty-five, or one under three full juries. This
is regulated by the local statutes of the different states, and the number
except in capital cases, has been probably reduced.
4.-2. Challenges for cause are to the array or to the polls. 1. A
challenge to the array is made on account of some defect in making the
return to the venire, and is at once an objection to all the jurors in the
panel. It is either a principal challenge, that is, one founded on some
manifest partiality, or error committed in selecting, depositing, drawing or
summoning the jurors, by not pursuing the directions of the acts of the
legislature; or a challenge for favor.
5.-2. A challenge to the polls is objection made separately to each
juror as he is about to be sworn. Challenges to the polls, like those to the
array, are either principal or to the favor.
6. First, principal challenges may be made on various grounds: 1st.
propter defectum, on account of some personal objection, as alienage,
infancy, old age, or the want of those qualifications required by
legislative enactment. 2d. Propter affectum, because of some presumed or
actual partiality in the juryman who is made the subject of the objection;
on this ground a juror may be objected to, if he is related to either within
the ninth degree, or is so connected by affinity; this is supposed to bias
the juror's mind, and is only a presumption of partiality. Coxe, 446; 6
Greenl. 307; 3 Day, 491. A juror who has conscientious scruples in finding a
verdict in a capital case, may be challenged. 1 Bald. 78. Much stronger is
the reason for this challenge, where the juryman has expressed his wishes as
to the result of the trial, or his opinion of the guilt or innocence of the
defendant. 4 Harg. St. Tr. 748; Hawk. b. 2, c. 43, s. 28; Bac. Ab. Juries, E
5. And the smallest degree of interest in the matter to be tried is a
decisive objection against a juror. 1 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 challenge 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 which 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 challenge; 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 overruled. 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 challenged 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 the 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 maintain 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 Cowen, 90.

CHAMPION. He who fights for another, or takes his place in a quarrel; it
also includes him who fights his own battles. Bract. lib. 4, t. 2, c. 12.

CHANCE, accident. As the law punishes a crime only when there is an
intention to commit it, it follows that when those acts are done in a lawful
business or pursuit by mere chance or accident, which would have been
criminal if there had been an intention, express or implied, to commit them,
there is no crime. For example, if workmen were employed in blasting rocks
in a retired field, and a person not knowing of the circumstance should
enter the field, and be killed by a piece of the rock, there would be no
guilt in the workmen. 1 East, P. C. 262 Poster, 262; 1 Hale's P. C. 472; 4
Bl. Com. 192. Vide Accident.

CHANCE-MEDLEY, criminal law. A sudden affray. This word is sometimes applied
to any kind of homicide by misadventure, but in strictness it is applicable
to such killing only as happens se defendendo. (q.v.) 4 Bl. Com. 184.

CHANCELLOR. An officer appointed to preside over a court of chancery,
invested with various powers in the several states.
2. The office of chancellor is of Roman origin. He appears, at 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 chancery 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 decision 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 testimony 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 chaplain.

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 dishonest or outrageous act in the particular
instance. Such presumptions, however, are so remote from fact, and it is
frequently so difficult to estimate a person's real character, that
they are 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 unblemished.
When, however, the defendant justifies the slander, it seems to be doubtful
whether the evidence of reports as to the conduct and character of the
plaintiff can be received. See 1 M. & S. 286, n (a) 3 Mass. R. 553 1 Pick.
R. 19. When evidence is admitted touching the general character of a party,
it is manifest that it is to be confined to matters in reference to the
nature of the, charge against him. 2 Wend. 352.
5.-3. The party against whom a witness is called, may disprove the
fact& stated by him, or may examine other witnesses as to his general
character; but they will not be allowed to speak of particular facts or
parts of his conduct. B. N. P. 296. For example, evidence of the general
character of a prosecutrix for a rape, may be given, as that she was a
street walker; but evidence of specific acts of criminality cannot be
admitted. 3 Carr. & P. 589. The regular mode is to inquire whether the
witness under examination has the means of knowing the former witness
general character, and whether from such knowledge he would believe, him on
his oath. 4 St. Tr. 693; 4 Esp. C. 102. In answer to such evidence against
character, the other party may cross-examine the witness as to his means of
knowledge, and the grounds of his opinion; or he may attack such witness
general character, and by fresh evidence 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. Sec.
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, international law. These
phrases, the first of which is used in the acts of congress, are synonymous.
2. The officer who bear; this title is a diplomatic representative or
minister of an inferior grade, to whose care are confided the affairs of his
nation. He has not the title of minister, and is generally introduced and
admitted through a verbal presentation of the minister, at his departure, or
through letters of credence addressed to the minister of state of the court
to which they are sent. He has the essential rights of a minister. Mart. Law
of Nat. 206; 1 Kent, Com. 39, n.; 4 Dall. 321.
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 Cranch, 331; 4 Wheat. 1; 9 Wend. 394; 2 N. H. Rep. 21, 510; 9
Cow. 437; 7 John. Cb. R. 292; 3 Leigh. 450; 1 Dev. Eq. Rep. 276; 4 Bouv.
Inst. n. 3976, et seq.

CHARRE OF LEAD, Eng. law, commerce. A quantity of lead consisting of thirty
pigs, each pig containing six stones wanting two pounds, and every stone
being twelve pounds. Jacob.

CHARTA. An ancient word which signified not only a charter or deed in
writing, but any signal or token by which an estate was held.

CHARTA CHYROGRAPIHATA VEL COMMUNIS. Signifies an indenture. Shep. Touch. 50;
Beames, Glanv. 197-8; Fleta, lib. 3, c. 14, Sec. 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. Sec. 161; 1 Bl. Com. 108 Encycl. Amer. Charte Constitutionelle.
2. A charter differs from a CONSTITUTION in this, that the former is
granted by the sovereign, while the latter is established by the people
themselves : both are the fundamental law of the land.
3. This term is susceptible of another signification. During the middle
ages almost every document was called carta, charta, or chartula. In this
sense the term is nearly synonymous with deed. Co. Litt. 6; 1 Co. 1; Moor.
Cas. 687.
4. The act of the legislature creating a corporation, is called its
charter. Vide 3 Bro. Civ. and Adm. Law, 188; Dane's Ab. h.t.

CHARTER, mar. contr. An agreement by which a vessel is hired by the owner to
another; as A B chartered the ship Benjamin Franklin to C D.

CHARTER-LAND, Eng. law. Land formerly held by deed under certain rents and
free services, and it differed in nothing from free socage land. It was also
called bookland. 2 Bl. Com. 90.

CHARTER-PARTY, contracts. A contract of affreightment in writing, by which
the owner of a ship or other vessel lets the whole, or a part of her, to a
merchant or other person for the conveyance of goods, on a particular
voyage, in consideration of the payment of freight. This term is derived
from the fact, that the contract which bears this name, was formerly written
on a card, and afterwards the card was cut into two parts from top to
bottom, and one part was delivered to each of the parties, which was
produced when required, and by this means counterfeits were prevented.
2. This instrument ought to contain, 1. the name and tonnage of the
vessel; 2. the name of the captain; 3. the names of the letter to freight
and the freighter; 4. the place and time agreed upon for the loading and
discharge; 5. the price of the freight; 6. the demurrage or indemnity in
case of delay; 7. such other conditions as the parties may agree upon.
Abbott on Ship. pt. 3, c. 1, s. 1 to 6; Poth. h.t. n. 4; Pardessus, Dr.
Coin. pt. 4, t. 4, c. 1, n. 708.
3. When a ship is chartered, this instrument serves to authenticate
many of the facts on which the proof of her neutrality must rest, law. He
must not leave his master's service during the term of the apprenticeship.
The apprentice is entitled to payment for extraordinary services, when
promised by the master; 1 Penn. Law Jour. 368. See 1 Whart. 113; and even
when no express promise has been made, under peculiar circumstances. 2
Cranch, 240, 270; 3 Rob. Ad. Rep. 237; but see 1 Whart, 113. See generally,
2 Kent, Com. 211-214; Bac. Ab. Master and Servant; 1 Saund. R. 313, n. 1, 2,
3, and 4; 3 Rawle, R. 307 3 Vin. Ab. 19; 1 Bohip and Shipping, iv.

CHARTERED SHIP. When a ship is hired or freighted by one or more merchants
for a particular voyage or on time, it is called a chartered ship. It is
freighted by a special contract of affreightment, executed between the
owners, ship's husband, or master on the one hand, and the merchants on the
other. It differs, from a general ship. (q.v.)

CHARTIS REDDENDIS, Eng. law. An ancient writ, now obsolete, which lays
against one who had charters of feoffment entrusted to his keeping, and who
refused to deliver them. Reg. Orig. 159.

CHASE, Eng. law. The liberty of keeping beasts of chase, or royal gaine, on
another man's ground as well as on one's own ground, protected even from the
owner of the land, with a power of hunting them thereon. It differs from a
park, because it may be on another's ground, and because it is not enclosed.
2 Bl. Com. 38.

CHASE, property. The act of acquiring possession of animals ferae naturae by
force, cunning or address. The hunter acquires a right to such animals by
occupancy, and they become his property. 4 Toull. n. 7. No man has a right
to enter on the lands of another for the purpose of hunting, without his
consent. Vide 14 East, R. 249 Poth. Tr. du Dr. de Propriete, part 1, c. 2,
art. 2. CHASTITY. That virtue which prevents the unlawful commerce of the
sexes.
2. A woman may defend her chastity by killing her assailant. See Self
Defence. And even the solicitation of her chastity is indictable in some of
the states; 7 Conn. 267; though in England, and perhaps elsewhere, such act
is not indictable. 2 Chit. Pr. 478. Words charging a woman with a violation
of chastity are actionable in themselves. 2 Conn. 707.

CHATTELS, property. A term which includes all hinds of property, except the
freehold or things which are parcel of it. It is a more extensive term than
goods or effects. Debtors taken in execution, captives, apprentices, are
accounted chattels. Godol. Orph. Leg. part 3, chap. 6, Sec. 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, 1st. of a public nature
for every species of fraud and dishonesty in transactions between
individuals is not the subject-matter of a criminal charge at common law; it
must be such as is calculated to defraud numbers, and to deceive the people
in general. 2 East, P. C. 816; 7 John. R. 201; 14 John. R. 371; 1 Greenl. R.
387; 6. Mass. R. 72; 9 Cowen, R. 588; 9 Wend. R. 187; 1 Yerg. R. 76; 1 Mass.
137. 2. The cheating must be done by false weights, false measures, false
tokens, or the like, calculated to deceive numbers. 2 Burr, 1125; 1 W. Bl.
R. 273; Holt, R. 354.
3. That the object of the defendant in defrauding the prosecutor was
successful. If unsuccessful, it is a mere attempt. (q.v.) 2 Mass. 139. When
two or more enter into an agreement to cheat, the offence is a conspiracy.
(q.v.) To call a man a cheat is slanderous. Hetl. 167; 1 Roll's Ab. 53; 2
Lev. 62. Vide Illiterate; Token.

CHECK, contracts. A written order or request, addressed to a bank or persons
carrying on the banking business, and drawn upon them by a party having
money in their hands, requesting them to pay on presentment to a person
therein named or to bearer, a named sum of money.
2. It is said that checks are uniformly payable to bearer Chit. on
Bills, 411; but that is not so in practice in the United States. they are
generally payable to bearer, but sometimes they are payable to order.
3. Cheeks are negotiable instruments, as bills of exchange; though,
strictly speaking, they are due before payment has been demanded, i$n which
respect they differ from promissory notes and bills of exchange payable on a
particular day. 7 T. R. 430.
4. The differences between a common check and a bill of exchange, are,
First, that a check may be taken after it is overdue, and still the holder
is not subject to the equities which 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, Sec. 492.
5. There is a kind of check known by the name of memorandum cheeks;
these are given in general with an understanding that they are not to be
presented at the bank on which they are drawn for payment; and, as between
the parties, they have no other effect than an IOU, or common due bill; but
third persons who become the holders of them, for a valuable consideration,
without notice, have all the rights which the holders of ordinary cheeks can
lawfully claim. Story, Prom. Notes, Sec. 499.
6. Giving a creditor a cheek on a bank does not constitute payment of a
debt. 1 Hall, 56, 78; 7 S. & R. 116; 2 Pick. 204; 4 John. 296. See 3 Rand.
481. But a tender was held good when made by a check contained in a letter,
requesting a receipt in return, which the plaintiff sent back, demanding a
larger sum, without objecting to the nature of the tender. 3 Bouv. Inst. n.
2436.
7. A cheek delivered by a testator in his lifetime to a person as a
gift, and not presented till after his death, was considered as a part of
his will, and allowed to be proved as such. 3 Curt. Ecc. R. 650. Vide,
generally,4 John. R. 304; 7 John. R. 26; 2 Ves. jr. 111; Yelv. 4, b, note; 7
Serg. & Rawle, 116; 3 John. Cas. 5, 259; 6 Wend. R. 445; 2 N. & M. 251; 1
Blackf. R. 104; 1 Litt. R. 194; 2 Litt. R. 299; 6 Cowen, R. 484; 4 Har. & J.
276; 13 Wend. R. 133; 10 Wend. R. 304; 7 Har. & J. 381; 1 Hall, R. 78; 15
Mass. R. 74; 4 Yerg. R. 210; 9 S. & R. 125; 2 Story, R. 502; 4 Whart. R.
252.

CHECK BOOK, commerce. One kept by persons who have accounts in bank, in
which are printed blank forms of cheeks, or orders upon the bank to pay
money.

CHEMISTRY med. jur. The science which teaches the nature and property of all
bodies by their analysis and combination. In considering cases of poison,
the lawyer will find a knowledge of chemistry, even very limited in degree,
to be greatly useful. 2 Chit. 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 testaments.
3.-1. Children born in lawful wedlock, or within a competent time
afterwards, are presumed to be the issue of the father, and follow his
condition; those born out of lawful wedlock, follow the condition of the
mother. The father is bound to maintain his children and to educate them,
and to protect them from injuries. Children are, 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 direct line."
5. Children are divided into legitimate children, or those born in
lawful wedlock; and natural or illegitimate children, who are born bastards.
(q.v.) Vide Natural Children. Illegitimate children are incestuous
bastards, or those which are not incestuous.
6. Posthumous children are those who are born after the death of their
fathers. Domat, Lois Civ. liv. prel. t. 2, s. 1, Sec. 7 L. 3, Sec. 1, ff de
inj. rupt.
7. In Pennsylvania, the will of their fathers, in, which no provision
is made for them, is revoked, as far as regards them, by operation of law. 3
Binn. R. 498. See, as to the law of Virginia on this subject, 3 Munf. 20,
and article In ventre sa mere. Vide, generally, 8 Vin. Ab. 318; 8 Com. Dig.
470; Bouv. Inst. Index, h.t.; 2 Kent, Com. 172; 4 Kent, Com. 408, 9; 1 Rop.
on Leg. 45 to 76; 1 Supp. to Ves. jr. 442 Id. 158; Natural children.

CHILDISHNESS. Weakness of intellect, such as that of a child.
2. When the childishness is so great that a man has lost his memory, or
is incapable to plan a proper disposition of his property, he is unable to
make a will. Swinb. part. 11, Sec. 1; 6 Co. 23. See 9 Conn. 102; 9 Phil. R.
57.

CHIMIN. This is a corruption of the French word chemin, a highway. It is
used by old writers. Com. Dig. Chimin.

CHINESE INTEREST. Interest for money charged in China. In a case where a
note was given in China, payable eighteen mouths after date, without, any
stipulation respecting interest, the court allowed the Chinese interest of
one per cent. per month, from the expiration of the eighteen months. 2 Watts
& Serg. 227, 264.

CHIROGRAPH, conveyancing. Signifies a deed or public instrument in writing.
Chirographs were anciently attested by the subscription and crosses of
witnesses; afterwards, to prevent frauds and concealments, deeds of mutual
covenant were made in a script and rescript, or in a part and counterpart;
and in the middle, between the two copies, they drew the capital letters of
the alphabet, and then tallied, or cut asunder in an indented manner, the
sheet or skin of parchment, one of 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 parties, &c.

CHIVALRY, ancient Eng. law. This word is derived from the French chevelier,
a horseman. It is. the name of a tenure of land by knight's service.
Chivalry was of two kinds: the first; which was regal, or held only of the
king; or common, which was held of a common person. Co. Litt. h.t.

CHOICE. Preference either of a person or thing, to one of several other
persons or things. Election. (q.v.)

CHOSE, property. This is a French word, signifying thing. In law, it is
applied to personal property; as choses in possession, are such personal
things of which one has possession; choses in action, are such as the owner
has not the possession, but merely a right of action for their possession. 2
Bl. Com. 889, 397; 1 Chit. Pract. 99; 1 Supp. to Ves. Jr. 26, 59. Chitty
defines choses in actions to be rights to receive or recover a debt, or
money, or damages for breach of contract, or for a tort connected with
contract, but which cannot be enforced without action, and therefore termed
choses, or things in action. Com. Dig. Biens; Harr. Dig. Chose in
Action Chitty'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 Cranch, 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
equity.

CHRISTIANITY. The religion established by Jesus Christ.
2. Christianity has been judicially declared to be a part of the common
law of Pennsylvania; 11 Serg. & Rawle, 394; 5 Binn. R.555; of New York, 8
Johns. R. 291; of Connecticut, 2 Swift's System, 321; of Massachusetts,
Dane's Ab. vol. 7, c. 219, a. 2, 19. To write or speak contemptuously and
maliciously against it, is an indictable offence. Vide Cooper on the Law of
Libel, 59 and 114, et seq.; and generally, 1 Russ. on Cr. 217; 1 Hawk, c. 5;
1 Vent. 293; 3 Keb. 607; 1 Barn. & Cress. 26. S. C. 8 Eng. Com. Law R. 14;
Barnard. 162; Fitzgib. 66; Roscoe, Cr. Ev. 524; 2 Str. 834; 3 Barn. & Ald.
161; S. C. 5 Eng. Com. Law R. 249 Jeff. Rep. Appx. See 1 Cro. Jac. 421 Vent.
293; 3 Keb. 607; Cooke on Def. 74; 2 How. S. C. 11 ep. 127, 197 to 201.

CHURCH. In a moral or spiritual sense this word signifies a society of
persons who profess the Christian religion; and in a physical or material
sense, the place where such. persons assemble. The term church is nomen
collectivum; it comprehends the chancel, aisles, and body of the church.
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 Sec. 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 the five
ports of Hastings, Ramenhale, Hetha or Hethe, Dover, and Sandwich, are
known. 2. These ports have peculiar charges and services imposed upon them,
and were entitled to certain privileges and liberties. See Harg. L. Tr. 106-
113.

CIPHER. An arithmetical character, used for numerical notation. Vide
Figures, and 13 Vin. Ab. 210; 18 Eng. C. L. R. 95; 1 Ch. Cr. Law, 176.
2. By cipher is also understood a mode of secret writing. Public
ministers and other public agents frequently use ciphers in their
correspondence, and it is sometimes very useful so to correspond in times of
war. A key is given to each minister before his departure, namely, the
cipher for writing ciphers, (chiffre chiffrant,) and the cipher for
deciphering (chiffre dechiffrant.) Besides these, it is usual to give him a
common cipher, (chiffre banal,) which is known to all the ministers of the
same power, who occasionally use it in their correspondence with each other.
3. When it is suspected that, a cipher becomes known to the cabinet
where the minister is residing, recourse is had to a preconcerted sign in
order to annul, entirely or in part, what has been written in cipher, or
rather to indicate that the contents are to be understood in an inverted or
contrary sense. A cipher of reserve is also employed in extraordinary cases.

CIRCUIT COURT. The name of a court of the United States, which has both
civil and criminal jurisdiction. In several of the states there are courts
which bear this name. Vide Courts of the United States.

CIRCUITY OFACTION, practice, remedies. It is where a party, by bringing an
action, gives an action to the defendant against him.
2. As, supposing the obligee of a bond covenanted that he would not sue
on it; if he were to sue he would give an. action against himself to the
defendant for a breach of his covenant. The courts prevent such circuitous
actions, for it is a maxim of law, so to judge of contracts as to prevent a
multiplicity of actions; and in the case just put, they would hold that the
covenant not to sue operated as a release. 1 T. R. 441. It is a favorite
object of courts of equity to prevent a multiplicity of actions. 4 Cowen,
682.

CIRCUITS. Certain divisions of the country, appointed for particular judges
to visit for the trial of causes, or for the administration of justice. See
3 Bl. Com. 58; 3 Bouv. Inst. n. 2532.

CIRCULATING MEDIUM. By this term is understood whatever is used in making
payments, as money, bank notes, or paper which passes from hand to hand in
payment of goods, or debts.

CIRCUMDUCTION, Scotch law. A term applied to the time allowed for bringing
proof of allegiance, which being elapsed, if either party sue for
circumduction of the time of proving, it has the effect that no proof can
afterwards be brought; and the cause must be determined as it stood when
circumduction was obtained. Tech. Dict.

CIRCUMSTANCES, evidence. The particulars which accompany a fact.
2. The facts proved are either possible or impossible, ordinary and
probable, or extraordinary and improbable, recent or ancient; they may have
happened near us, or afar off; they are public or private, permanent or
transitory, clear and simple, or complicated; they are always accompanied by
circumstances which more or less influence the mind in forming a judgment.
And in some instances these circumstances assume the character of
irresistible evidence; where, for example, a woman was found dead in a room,
with every mark of having met with a violent death, the presence of another
person at the scene of action was made manifest by the bloody mark of a left
hand visible on her left arm. 14 How. St. Tr. 1324. These points ought to be
carefully examined, in order to form a correct opinion. The first question
ought to be, is the fact possible ? If so, are there any circumstances which
render it impossible ? If the facts are impossible, the witness ought not to
be credited. If, for example, a man should swear that he saw the deceased
shoot himself with his own pistol, and upon an examination of the ball which
killed him, it should be found too large to enter into the pistol, the
witness ought not to be credited. 1 Stark. Ev. 505; or if one should swear
that another had been guilty of an impossible crime.
3. Toullier mentions a case, which, were it not for the ingenuity of
the counsel, would require an apology for its introduction 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 his argument:
4. Dujonquai said that he had divided the sum in thirteen bags, each
containing six hundred louis d'ors, and in twenty-three other bags, each
containing two hundred. There remained twenty-five louis to complete the
whole sum, which, Dujonquai said, he received from the defendant as a
gratuity. At each of 'these trips, he says, he put a bag, containing two
hundred louis, that is, about three pounds four ounces, in each of his coat
pockets, which, being made in the fashion of those times, hung about the
thighs, and in walking must have incommoded him and obstructed his speed; he
took, besides, a bag containing six hundred louis in his arms; by this means
his movements were impeded by a weight of near ten pounds.
5. The measured distance between the house where Dujonquai took the
bags to the foot of the stairs of the defendant, "as five hundred and
sixteen toises, which, multiplied by twenty-six, the thirteen trips going
and returning, make thirteen thousand four hundred and sixteen toises, that
is, more than five leagues and a half (near seventeen miles), of two
thousand four hundred toises, which latter distance is considered sufficient
for an hour's walk, of a good walker. Thus, if Dujonquai had been unimpeded
by any obstacle, he would barely have had time to perform the task in five
or six hours, even without taking any rest or refreshment. However strikingly

improbable this may have been, it was not physically impossible. But
6.-1. Dujonquai, in going to the defendant's, had to descend sixty-
three steps from his grandmother's, the plaintiff's chamber, and to ascend
twenty-seven to that of the defendant, in the whole, ninety steps. In
returning, the ascent and descent were changed, but the steps were the same;
so that by multiplying, by twenty-six, the number of trips going and
returning, it would be seen there were two thousand three hundred and forty
steps. Experience had proved that in ascending to the top of the tower of
Notre Dame (a church in Paris), where there are three hundred and eighty-
nine steps, it occupied from eight to nine minutes of time. It must then
have taken an hour out of the five or six which had been employed in making
the thirteen trips.
7.-2. Dujonquai had to go up the rue Saint Jacques, which is very
steep; its ascent would necessarily decrease the speed of a man, burdened
and encumbered with 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 line.
9.-4. On the morning that Dujonquai made these trips, the daily and
usual incumbrances of this street were increased by sixty or eighty workmen,
who were employed in removing by hand and with machine, an enormous stone,
intended for the church of Saint Genevieve, now the pantheon, and by the
immense crowd which this attracted; this was a remarkable circumstance,
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, generally, 1
Stark. Ev. 502; 1 Phil. Ev. 116. See some curious cases of circumstantial
evidence in Alis. Pr. Cr. Law, 313, 314; and 2 Theorie des Lois Criminelles,
147, n.; 3 Benth. Jud. Ev. 94, 223; Harvey's Meditations on the Night, note
35; 1 Taylor's Med. Jur. 372; 14 How. St. Tr. 1324; Theory of Presumptive
Proof, passim; Best on Pres. SSSS 187, 188, 197. See Death; Presumption;
Sonnambulism.

CIRCUMSTANDIBUS, persons, practice. Bystanders from whom jurors are to be
selected when the panel has been exhausted. Vide Tales de circumstandibus.

CIRCUMVENTION, torts, Scotch law. Any act of fraud whereby a person is
reduced to a deed by decree. Tech. Dict. It has the same sense in the civil
law. Dig. 50, 17, 49 et 155; Id. 12, 6, 6, 2; Id. 41, 2, 34. Vide
Parphrasis.

CITATIO AD REASSUMENDAM CAUSAM, civil law. The name of a citation, which
issued when a party died pending a suit, against 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. Sec. 494; Gould on Pl. c. 5, Sec. 30.
For other citations 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 that 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. Sec. 66. Modus Legendi Abbreviaturas
passim in jure tam civili quam pontificii occurrentes, 1577.

CITIZEN, persons. One who, under the constitution and laws of the United
States, has a right to vote for representatives in congress, and other
public officers, and who is qualified to fill offices in the gift of the
people. In a more extended sense, under the word citizen, are included all
white persons born in the United States, and naturalized persons born out of
the same, who have not lost their right as such. This includes men, women,
and children.
2. Citizens are either native born or naturalized. Native citizens may
fill any office; naturalized citizens may be elected or appointed to any
office under the constitution of the United States, except the office of
president and vice-president. The constitution provides, that "the citizens
of each state shall be entitled to all the privileges and immunities of
citizens in the several states." Art. 4, s. 2.
3. All natives are not citizens of the United States; the descendants
of the aborigines, and those of African origin, are not entitled to the
rights of citizens. Anterior to the adoption of the constitution of the
United States, each state had the right to make citizens of such persons as
it pleased. That constitution does not authorize any but white persons to
become citizens of the United States; and it must therefore be presumed that
no one is a citizen who is not white. 1 Litt. R. 334; 10 Conn. R. 340; 1
Meigs, R. 331.
4. A citizen of the United States, residing in any state of the Union,
is a citizen of that state. 6 Pet. 761 Paine, 594;1 Brock. 391; 1 Paige, 183
Metc. & Perk. Dig. h.t.; vide 3 Story's Const. Sec. 1687 Bouv. Inst. Index,
b. t.; 2 Kent, Com. 258; 4 Johns. Ch. R. 430; Vatt. B. 1, c. Id, Sec. 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, 37.

CIVIL. This word has various significations. 1. It is used in
contradistinction to barbarous or savage, to indicate a state of society
reduced to order and regular government; thus we speak of civil life, civil
society, civil government, and civil liberty
2. It is sometimes used in contradistinction to criminal, to indicate
the private rights and remedies of men, as members of the community, in
contrast to those which are public and relate to the government; thus we
speak of civil process and criminal process, civil jurisdiction and criminal
jurisdiction.
3. It is also used in contradistinction to military or ecclesiastical,
to natural or foreign; thus we speak of a civil station, as opposed to a
military or ecclesiastical station, a civil death as opposed to a natural
death; a civil war as opposed to a foreign war. Story on the Const. Sec. 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 enforced 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 are included 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. Sec. 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.
Sec. 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, Sec. 2 and by decisions in
Massachusetts, except perhaps in felonies punishable with death; 15 Mass. R.
333; in Ohio; 4 Ohio R. 377; in North Carolina; 1 Tayl. R. 58. By the common
law, in cases of homicide, the civil remedy is merged in the felony. 1 Chit.
Pr. 10. Vide art. Injuries; Merger.

CIVIL STATE. The union of individual men in civil society under a system of
laws and a magistracy, or magistracies, charged with the administration of
the laws. It is a fundamental law of the civil state, that no member of it
shall undertake to redress or avenge any violation of his rights, by another
person, but appeal to the constituted authorities for that purpose, in all
cases in which is is possible for him to do so. Hence the citizens are
justly considered as being under the safeguard of the law. 1 Toull. n. 201.
Vide Self-defence.

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, so far as his rights are concerned.

CLAIM. A claim is a challenge of the ownership of a thing which a man has
not in possession, and is wrongfully withheld by another. Plowd. 359; Wee i
Dall.444; 12 S. & R. 179.
2. In Pennsylvania, the entry on of the demand of a mechanic or
materialman for work done or material furnished in the erection of a
building, in those counties to which the lien laws extend, is called a
claim.
3. A continual c1aim is a claim made in a particular way, to preserve
the' rights of a feoffee. See Continual claim.
4. Claim of conusance is defined to be an intervention by a third
person, demanding jurisdiction of a cause against a plaintiff, who has
chosen to commence his action out of the claimant's court. 2 Wils. 409; 1
Cit. Pb. 403; Vin. Ab. Conusance; Com. Dig. Courts, P; Bac. Ab. Courts, D 3;
3 Bl. Com. 298.

CLAIMANT. In the courts of admiralty, when the suit is in rem, the cause is
entitled in the Dame of the libellant against the thing libelled, as A B v.
Ten cases of calico and it preserves that title through the whole progress
of the suit.When a person is authorized and admitted to defend the libel, he
is called the claimant. The United States v. 1960 bags of coffee; 8 Cranch,
R. 398; United States v. The Mars; 8 Cranch, R. 417; 30 hhds. of sugar,
(Brentzon, claimant, v. Boyle. 9 Cranch, R. 191.

CLANDESTINE. That which is done in secret and contrary to law.
2.Generally a clandestine act in case of the limitation of actions will
prevent the act from running. A clandestine marriage is one which has been
contracted without the form which the law has prescribed for this important
contract. Alis. Princ. 543

CLARENDON. The constitutions of Clarendon were certain statutes made in the
reign of Henry H., of England, in a parliament holden at Clarendon, by which
the king checked the power of the pope and his clergy. 4 Bl. Com. 415.

CLASS. The order according to which are arranged or distributed, or are
supposed to be arranged or distributed, divers persons or things; thus we
say, a class of legatees.
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 in consequence 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
summoned to answer quare clausum fregit, that is, why he broke the close of
the plaintiff. 3 Bl. Com. 209.
2. Trespass quare clausum fregit lies for every unlawful intrusion into
land, whether enclosed or not, though only grass may be trodden. 1 Dev. &
Bat. 371. And to maintain this action there must be a possession in the
plaintiff, and a right to that possession.9 Cowen 39; 4 Yeates, 418; 11
Conn. 60, 10 Conn. 225; 1 John. 511; 12 John. 1834 Watts, 377; 4 Bibb, 218;
15 Pick. 32; 6 Rand. 556; 2 Yeates, 210; 1 Har. & John. 295; 8 Mass. 411.

CLEARANCE, com. law. The name of a certificate given by the collector of a
port, in which is stated the master or commander (naming him) of a ship or
vessel named and described, bound for a port, named, and having on board
goods described, has entered and cleared his ship or vessel according to
law.
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 piracy. 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 banking 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 checks on
the other bankers, which have been paid by his house that day, and deposits
them 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; Pardon.

CLEMENTINES, eccl. law. The name usually given to the collection of
decretals or constitutions 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. Vide La

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, Sec. 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 for McDowell. 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 a clerk.

CLIENT, practice. One who employs and retains an attorney or counsellor to
manage or defend a suit or action in which he is a party, or to advise him
about some legal matters.
2. The duties of the client towards his counsel are, 1st. to give him a
written authority, 1 Ch. Pr. 19; 2. to disclose his case with perfect
candor3. to offer spontaneously, advances of money to his attorney; 2 Ch.
Pr. 27; 4. he should, at the end of the suit, promptly pay his attorney his
fees. Ib. His rights are, 1. to be diligently served in the management of
his business 2. to be informed of its progress and, 3. that his counsel
shall not disclose what has been professionally confided to him. See
Attorney at law; Confidential communication.

CLOSE. Signifies the interest in the soil, and not merely a close or
enclosure in the common acceptation of the term. Doct. & Stud. 307 East, 207
2 Stra. 1004; 6 East, 1541 Burr. 133 1 Ch. R. 160.
2. In every case where one man has a right to exclude another from his
land, the law encircles it, if not already enclosed, with an imaginary
fence; and entitles him to a compensation in damages for the injury he
sustains by the act of another passing through his boundary, denominating
the injurious act a breach of the enclosure. Hamm. N. P. 151; Doct. & Stud.
dial. 1, c. 8, p. 30; 2 Whart. 430.
3. An ejectment will not lie for a close. 11 Rep. 55; 1 Rolle's R. 55
Salk. 254 Cro. Eliz. 235; Adams on Eject. 24.

CLOSE ROLLS, or close writs, Eng. law. Writs containing, grants from the
crown, to particular persons, and for particular purposes, and, not being
intended for public inspection, are closed up and sealed on the outside, and
for that reason called close writs,in contradistinction. to grants relating
to the public in general, which are left open and not sealed up, and are
called letters patent. (q.v.) 2 Bl. Com. 346.

CLOSED DOORS. Signifies that something is done privately. The senate sits
with closed doors on executive business.
2. In general the legislative business of the country is transacted
openly. And the constitution and laws require that courts of justice shall
be open to the public.

CLUB. An association of persons.It differs from a partnership 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. & Welsh. 172; Colly, Partn. 31; Story, Partn.
144; Wordsworth on Joint Stock Companies, 154, et seq.; 6 W. & S. 67; 3, W.
& S. 118.

CO. A prefix or particle in the nature of an inseparable proposition,
signifying with or in conjunction. Con and the Latin cum are equivalent, as,
co-executors, co-obligor. It is also used as an abbreviation for company as,
John Smith & Co.

COADJUTOR, eccl. law. A fellow helper or assistant; particularly applied to
the assistant of a bishop.

COAL NOTE, Eng. law. A species of promissory note authorized by the st. 3
Geo. H., c. 26, SSSS 7 and 8, which, having these words expressed therein,
namely, "value received in coals," are to be protected and noted as inland
bills of exchange.

COALITION, French law. By this word is understood an unlawful agreement
among several persons, not to do a thing except on some conditions agreed
upon.
2. The most usual coalitions are, 1st. those which take place among
master workmen, to reduce, diminish or fix at a low rate the wages of
journeymen and other workmen; 2d. those among workmen or journeymen, not to
work except at a certain price. These offences are punished by fine and
imprisonment. Dict. de Police, h.t. In our law this offence is known by the
name of conspiracy. (q.v.)

CO-ADMINISTRATOR. One of several administrators. In general, they have,
like executors, the power to act singly to the personal estate of the
intestate. Vide Administrator.

CO-ASSIGNEE. One who is assignee with another.
2. In general, the rights and duties of co-assignees are equal.

CO-EXECUTOR. One who is executor of a will in company with another. In
general each co-executor has the full power over the personal estate of the
testator, that all the executors have jointly. Vide Joint Executors. But one
cannot bring suit without joining with the others.

COAST. The margin of a country bounded by the sea. This term includes the
natural appendages of the territory which rise out of the water, although
they are not of sufficient firmness to be inhabited or fortified. Shoals
perpetually covered with water are not, however, comprehended under the name
of coast. The small islands, situate at the mouth of the Mississippi,
composed of earth and trees drifted down by the river, which are not of
consistency enough to support the purposes of life, and are uninhabited,
though resorted to for shooting birds, were held to form a part of the
coast. 5 Rob. Adm. R. 385. (c).

COCKET, commerce. In England the office at the custom house, where the goods
to be exported are entered, is so called, also the custom house seal, or the
parchment sealed and delivered by the officers of customs to merchants, as a
warrant that their goods are customed. Crabbe's Tech. Dict.

COCKETTUM, commerce. In the English law this word signifies, 1. the custom-
house seal; 2. the office at the custom where cockers are to be procured.
Crabbe's Tech. Dict.

CODE, legislation. Signifies in general a collection of laws. It is a name
given by way of eminence to a collection of such laws made by the
legislature. Among the most noted may be mentioned the following:

CODES, Les Cing Codes; French law. The five codes.
2. These codes are, 1st. Code Civil, which is divided into three books;
book 1, treats of persons, and of the enjoyment and privation of civil
rights; book 2, of property and its different modifications; book 3, of the
different ways of acquiring property. One of the most perspicuous and able,
commentators on this code is Toullier, frequently cited in this work.
3.-2d. Code de procedure civille, which is divided into two parts.
Part 1, is divided into five books; 1. of justices of the. peace; 2. of
inferior tribunals; 3. of royal courts; 4. of extraordinary means of
proceeding; 5. of execution and judgment. Part 2, is divided into three
books; 1. of tender and consignation; 2. of process in relation to the
opening of a succession; 3. of arbitration.
4.-3d. Code de Commerce, in four books; 1. of commerce in general; 2.
of maritime commerce; 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 Henri.

CODE, JUSTINIAN, civil law. A collection of the constitutions of the
emperors, from Adrian to Justinian; the greater part of those from Adrian to
Constantine are mere rescripts; those from Constantine to Justinian are
edicts or laws, properly speaking.
2. The code is divided into twelve books, which are subdivided into
titles, in which the constitutions are collected under proper heads. They
are placed in chronological order, but often disjointed. At the head of each
constitution is placed the name of the emperor who is the author, and that
of the person to whom it is addressed. The date is at the end. Several of
these constitutions, which were formerly in the code were lost, it is
supposed by the neglect of "copyists. Some of them have been restored by
modern authors, among whom may be mentioned Charondas, Cugas, and Contius,
who translated them from Greek, versions.

CODE, OF LOUISIANA. In 1822, Peter Derbigny, Edward Livingston, and Moreau
Lislet, were selected by the legislature to revise and amend the civil code,
and to add to it such laws still in force as were not included therein. They
were authorized to add a system of commercial law, and a code of practice.
The code the prepared having been adopted, was promulgated in 1824, under
the title of the "Civil Code of the State of Louisiana."
2. The code is based on the Code Napoleon, with proper and judicious
modifications, suitable for the state of Louisiana. It is composed of three
books: 1. the first treats of persons; 2. the second of things, and of the
different modifications of property; 3. and the third of the different modes
of acquiring the property of things. It contains 3522 articles, numbered
from the beginning, for the convenience of reference.
3. This code, it is said, contains many inaccurate definitions. The
legislature modified and changed many of the provisions relating to the
positive legislation, but adopted the definitions and abstract doctrines of
the code without material alterations. From this circumstance, as well as
from the inherent difficulty of the subject, the positive provisions of the
code are often at variance with the theoretical part, which was intended to
elucidate them. 13 L. R. 237.
4. This code went into operation on the 20th day of May,. 1825. 11 L.
R. 60. It is in both the French and English languages; and in construing it,
it is a rule that when the expressions used in the French text of the code
are more comprehensive than those used in English, or vice versa, the more
enlarged sense will be taken, as thus full effect will be given to both
clauses. 2 N. S. 582.

CODE, NAPOLEON. The Code Civil of France, enacted into law during the reign
of Napoleon, bore his name until the restoration of the Bourbons when it was
deprived of that name, and it is now cited Code Civil.

CODE PAPIRIAN. The name of a collection of the Roman laws, promulgated by
Romulus, Numa, and other kings who governed. Rome till the time of Tarquin,
the Proud. It was so called in honor if Sextus Parrius, the compiler. Dig.
1, 2, 2.

CODE PRUSSIAN. Allgemeines Landrecht. This code is also known by the name of
Codex Fredericianus, or Frederician code. It was compiled by order of
Frederic H., by the minister of justice, Samuel V. Cocceji, who completed, a
part of it before his death, in 1755. In 1780, the work was renewed under
the superintendence of the minister Von Carmer, and prosecuted with
unceasing activity and was published from 1784 to 1788, in six parts. The
opinions of those who understood the subject were requested, and prizes
offered on the best commentaries on it; and the whole was completed in June,
1791, under the title "General Prussian Code."

CODE THEODOSIAN. This code, which originated in the eastern empire, was
adopted in the Western empire towards its decline. It is a collection of the
legislation of the Christian emperors, from and including Constantine to
Theodosius, the Younger; it is composed of sixteen books, the edicts, acts,
rescripts, and ordinances of the two empires, that of the east and that of
the west.

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

CODEX. Literally, a volume or roll. It is particularly applied to the volume
of the civil law, collected by the emperor Justinian, from all pleas and
answers of the ancient lawyers, which were in loose scrolls or sheets of
parchment. These he compiled into a book which goes by the name of Codex.

CODICIL, devises. An addition or supplement to a will; it must be executed
with the same solemnities. A codicil is a part of the will, the two
instruments making but one will. 4 Bro. C. C. 55; 2 Ves. sen. 242 4 Ves.
610; 2 Ridgw. Irish P. C. 11, 43.
2. There may be several codicils to one will, and the whole will be
taken as one: the codicil does not, consequently, revoke the will further
than it is in opposition to some of its particular dispositions, unless
there be express words of revocation. 8 Cowen, Rep. 56.,
3. Formerly, the difference between a will and a codicil consisted in
this, that in the former an executor was named, while in the latter none was
appointed. Swinb. part 1, s. 5, pl. 2; Godolph. Leg. part 1, c. 6, s. 2.
This is the distinction of the civil law, and adopted by the canon law. Vide
Williams on Wills, ch. 2; Rob. on Wills, 154, n. 388, 476; Lovelass on
Wills, 185, 289 4 Kent, Com. 516; 1 Ves. jr. 407, 497; 3 Ves. jr. 110; 4
Ves. jr. 610; 1 Supp. to Ves. jr. 116, 140.
4. Codicils were chiefly intended to mitigate the strictness of the
ancient Roman law, which required that a will should be attested by seven
Roman citizens, omni exceptione majores. A legacy could be bequeathed, but
the heir could not be appointed by codicil, though he might be made heir
indirectly by way of fidei commissum.
5. Codicils owe their origin to the following circumstances. Lucius
Lentulus, dying in Africa, left. codicils, confirmed by anticipation in a
will of former date, and in those codicils requested the emperor Augustus,
by way of fidei commissum, or trust, to do something therein expressed. The
emperor carried this will into effect, and the daughter of Lentulus paid
legacies which she would not otherwise have been legally bound to pay. Other
persons made similar fidei-commissa, and then the emperor, by the advice of
learned men whom he consulted, sanctioned the making of codicils, and thus
they became clothed with legal authority. Just. 2, 25; Bowy. Com. 155, 156.
6. The form of devising by codicil is abolished in Louisiana; Code,
1563; and whether the disposition of the property be made by testament,
under this title, or under that of institution of heir, of legacy, codicil,
donation mortis causa, or under any other name indicating the last will,
provided it be clothed with the forms required for the validity of a
testament, it is, as far as form is concerned, to be considered a testament.
Ib. Vide 1 Brown's Civil Law, 292; Domat, Lois Civ. liv. 4, t. 1, s. 1;
Lecons Element, du Dr. Civ. Rom. tit. 25.

COERCION, criminal law, contracts. Constraint; compulsion; force.
2. It is positive or presumed. 1. Positive or direct coercion takes
place when a man is by physical force compelled to do an act contrary to his
will; for example, when a man falls into the hands of the enemies of his
country, and they compel him, by a just fear of death, to fight against it.
3.-2. It is presumed where a person is legally under subjection to
another, and is induced, in consequence of such subjection, to do an act
contrary to his win. A married woman, for example, is legally under the
subjection of her husband, and if in his company she commit a crime or
offence, not malum in se, (except the offence of keeping a bawdy-house, In
which case she is considered by the policy of the law as a principal, she is
presumed to act under this coercion.
4. As will (q.v.) is necessary to the commission of a crime, or the
making of a contract, a person coerced into either, has no will on the,
subject, and is not responsible. Vide Roscoe's Cr. Ev. 7 85, and the cases
there cited; 2 Stark. Ev. 705, as to what will, amount to coercion in
criminal cases.

CO-EXECUTOR. One who is executor with another.
2. In general, the rights and duties of co-executors are equal.

COGNATION, civil law. Signifies generally the kindred which exists between
two persons who are united by ties of blood or family, or both.
2. Cognation is of three kinds: natural, civil, or mixed. Natural
cognation is that which is alone formed by ties of blood; such is the
kindred of those who owe their origin to an illicit connexion, either in
relation to their ascendants or collaterals.
3. Civil cognation is that which proceeds alone from the ties of
families as the kindred between the adopted father and the adopted child.
4. Mixed cognation is that which unites at the same time the ties of
blood and family, as that which exists between brothers, the issue of the
same lawful marriage. 6; Dig. 38, 10.

COGNATI, cognates. This term occurs frequently in the Roman civil law, and
denotes collateral heirs through females. It is not used in the civil law as
it now prevails in France. In the common law it has no technical sense, but
as a word of discourse in English it signifies, generally, allied by blood,
related in origin, of the same family. See Vicat, ad verb.; also, Biret's
Vocabulaire.

COGNISANCE, pleading. Where the defendant in an action of replevin (not
being entitled to the distress or goods which are the subject of the
replevin) acknowledges the taking of the distress, and insists that such
taking was legal, not because he himself had a right to distrain on his own
account, but because he made the distress by the command of another, who had
a right to distrain on the goods which are the subject of the suit. Lawes on
Pl. 35, 36; 4 Bouv. Inst. n. 3571.

COGNISANCE, practice. Sometimes signifies jurisdiction and judicial power,
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. See Cognisor.

COGNISOR, English law. One who passes or acknowledges,a fine of lands or
tenements to another, in distinction from the cognisee, 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
together.
3. A criminal cohabitation will not be presumed by the proof of a
single act of criminal intercourse between a man and woman not married. 10
Mass. R. 153.
4. When a woman is proved to cohabit with a man and to assume his name
with his consent, he will generally be responsible for her debts as if she
had been his wife; 2 Esp. R. 637; 1 Campb. R. 245; this being presumptive
evidence of marriage; B. N. P. 114; but this liability will continue only
while they live together, unless she is actually his were. 4 Campb. R. 215.
5. In civil actions for criminal conversation with the plaintiff's
wife, after the husband and wife have separated, the plaintiff will not in
general be entitled to recover. 1 Esp. R. 16; S. C. 5 T. R. 357; Peake's
Cas. 7, 39; sed vide 6 East, 248; 4 Esp. 39.

CO-HEIR. One of several men among whom an inheritance is to be divided.

CO-HEIRESS. A woman who inherits an estate in common with other women. A
joint heiress.

COIF. A head-dress. In England there are certain serjeants at law, who are
called serjeants of the coif, from the lawn coif they wear on their heads
under their thin caps when they are admitted to that order.

COIN, commerce, contracts. A piece of gold, silver or other metal stamped by
authority of the government, in order to determine its value, commonly
called money. Co. Litt. 207; Rutherf. Inst. 123. For the different kinds of
coins of the United States, see article Money. As to the value of foreign
coins, see article Foreign Coins.

COLLATERAL, collateralis. From latus, a side; that which is sideways, and
not direct.

COLLATERAL ASSURANCE, contracts. That which is made over and above the deed
itself.

COLLATERAL FACTS evidence. Facts unconnected with the issue or matter in
dispute.
2. As no fair and reasonable inference can be drawn from such facts,
they are inadmissible in evidence, for at best they are useless, and may be
mischievous, because they tend to distract the attention of the jury, and to
mislead them. Stark. Ev. h.t.; 2 Bl. Rep. 1169; 1 Stark Ev. 40; 3 Bouv.
Inst. n. 3087.
3. It is frequently difficult to ascertain a priori, whether a
particular fact offered in evidence, will, or will not clearly appear to be
material in the progress of the cause, and in such cases it is usual in
practice for the court to give credit to the assertion of the counsel who
tenders such evidence, that the facts will turn out to be material; but this
is always within the sound discretion of the court. It is the duty of the
counsel, however, to offer evidence, if possible, in such order that each
part of it will appear to be pertinent and proper at the time it is offered;
and it is expedient to do so, as this method tends to the success of a good
cause.
4. When a witness is cross-examined as to collateral facts, the party
cross-examining will be bound by the answer, and he cannot, in general,
contradict him by another witness. Rosc. Ev. l39.

COLLATERAL ISSUE, practice, pleading. Where a criminal convict pleads any
matter, allowed by law, in bar of execution; as pregnancy, a pardon, and the
like.

COLLATERAL KINSMEN, descent, distribution. Those who descend from one and
the same common ancestor, but not from one another; thus brothers and
sisters are collateral to each other; the uncle and the nephew are
collateral kinmen, and cousins are the same. The term collateral is used in
opposition to the phrase lineal kinsmen. (q.v.)

COLLATERAL SECURITY, contracts. A separate obligation attached to another
contract, to guaranty its performance. By this term is also meant the
transfer of property or of other contracts to insure the performance of a
principal engagement. The property or securities thus conveyed are also
called collateral securities. 1 Pow. Mortg. 393; 2 Id. 666, n. 871; 3 Id.
944, 1001.

COLLATERAL WARRANTY, contracts, descent. Where the heir's title to the land
neither was, nor could have been, derived from the warranting ancestor; and
yet barred the heir from ever claiming the land, and also imposed upon him
the same obligation of giving the warrantee other lands, in case of
eviction, as if the warranty were lineal, provided the heir had assets. 4
Cruise, Real Prop. 436.
2. The doctrine of collateral warranty, is, according to Justice Story,
one of the most unjust, oppressive and indefensible, in the whole range of
the common law. 1 Sumn. R. 262.
3. By the statute of 4 & 5 Anne, c. 16, Sec. 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 CUSTOMS. 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
compensation 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. Sec. 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, Sec. 14.

COLLISTRIGIUM. The pillory.

COLLOCATION, French law. The act by which the creditors of an estate are
arranged in the order in which they are to be paid according to law. The
order in which the creditors-are placed, is also called collocation. Merl.
Rep. h.t. Vide Marshalling Assets.

COLLOQUIM, pleading. A discourse a conversation or conference.
2. In actions of slander, it is generally true that an action does not
lie for words, on account of, their being merely disgraceful to a person in
his office, profession or trade; unless it be averred, that at the time of
publishing the words, there was a colloquium concerning the office,
profession or trade of the plaintiff.
3. In its technical sense, the term colloquium signifies an averment in
a declaration that there was a conversation or discourse on the part of the
defendant, which connects the slander with the office, profession or trade
of the plaintiff; and this colloquium must extend to the whole of the
prefatory matter to render the words actionable. 3 Bulst. 83. Vide Bac. Ab.
Slander, S, n. 3; Dane's Ab. Index, h.t.; Com. Dig. Action upon the case
for Defamation, 6, 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. Sec. 51; Bousq. Dict. de Dr.
mot Abordage.

COLONEL. An officer in the army, next below a brigadier general, bears this
title.

COLONY. A union of citizens or subjects who have left their country to
people another, and remain subject to the mother country. 3 W. C. C. R. 287.
The country occupied by the colonists is also called a colony. A colony
differs from a possession, or a dependency. (q.v.) For a history of the
American colonies, the reader is referred to Story on the Constitution, book
I.; 1 Kent, Com. 77 to 80; 1 Dane's Ab. Index, b. t.

COLOR, pleading. It is of two kinds, namely, express color, and implied
color.
2. Express color. This is defined to be a feigned matter, pleaded by
the defendant, in an action of trespass, from which the plaintiff seems to
have a good cause of action, whereas he has in truth only an appearance or
color of cause. The practice of giving express color in pleas, obtained in
the mixed actions of assize, the writ of entry in the nature of assize, as
well as in the personal action of trespass. Steph. on Plead. 230; Bac. Ab.
Trespass, 14.
3. It is a general rule in pleading that no man shall be allowed to
plead specially such plea as amounts to the general issue, or a total denial
of the charges contained in the declaration, and must in such cases plead
the general issue in terms, by which the whole question is referred to the
jury; yet, if the defendant in an action of trespass, be desirous to refer
the validity of his title to the court, rather than to the jury; he may in
his plea stated his title specially, by expressly giving color of title to
the plaintiff, or supposing him to have an appearance of title, had indeed
in point of law, but of which the jury are not competent judges. 3 Bl. Com.
309. Suppose, for example, that the plaintiff wag in wrongful possession of
the close, without any further appearance of title than the possession
itself, at the time of the trespass alleged, and that the defendants,
entered upon him in assertion of their title: but being unable to set forth
this title in the pleading, in consequence of the objection that would arise
for want of color, are driven to plead the general issue of not guilty. By
this plea an issue is produced whether the defendants are-guilty or not of
the trespass; but upon the trial of the issue, it will be found that the
question turns entirely upon a construction of law. The defendants say they
are not guilty of the trespasses, because they are not guilty of breaking
the close of the plaintiff, as 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 defendant
therefore would be discharged; but relies on new matter by which the plea is
avoided, namely, that the release was obtained by duress. The plea, in this
case, therefore, gives color to the declaration, and the replication, to the
plea. But let it be supposed that the plaintiff has replied, that the
release was executed by him, but to another person, and not to the
defendant; this would be an informal replication wanting color; because, if
the release were not to the defendant there would not exist even an apparent
defence, requiring the allegation of new matter to avoid it, and the plea
might be sufficiently answered by a traverse, denying that the deed stated
in the plea is the deed of the plaintiff. See Steph. Pl. 220; 1 Chit. Pl.
498; Lawes, Civ. Pl. 126; Arch. Pl. 211; Doct. Pl. 17; 4 Vin. Abr. 552; Bac.
Abr. Pleas, &e. I 8; Com. Dig. Pleader, 3 M 40, 3-M 41. See an example of
giving color in pleading in the Roman law, Inst. lib. 4, tit 14, De
replicantionibus.

COLOR OR OFFICE, criminal law. A wrong committed by an officer under the
pretended authority of his office; in some cases the act amounts to a
misdemeanor, and the party may then be indicted. In other cases, the remedy
to redress the wrong is by an action.

COLT. An animal of the horse species, whether male or female, not more than
four years old. Russ. & Ry. 416.

COMBAT, Eng. law. The form of a forcible encounter between two or more
persons or bodies of men; an engagement or battle. A duel.

COMBINATION. A union of different things. A patent may be taken out for a
new combination of existing machinery, or machines. See 2 Mason, 112; and
Composition of matter.
2. By combination is understood, in a bad sense, a union of men for the
purpose of violating the law.

COMBUSTIO DOMORUM. Burning of houses; arson. Vide 4 Bl. Com. 372.

COMES, pleading. In a plea, the defendant says, "And the said C D, by E F,
his attorney, comes, and defends, &c. The word comes, venit, expresses the
appearance of the defendant, in court. It is taken from the style of the
entry of the proceedings on the record, and formed no part of the viva voce
pleading. It is, accordingly, not considered as, in strictness, constituting
a part of the Plea. 1 Chit. Pl. 411; Steph. Pl. 432.

COMES, offices. A Count. An officer during the middle ages, who possessed
civil and military authority. Sav. Dr. Rom. Moy. age, n. 80.
2. Vice-comes, the Latin name for sheriff, was originally the
lieutenant of the comes.

COMITATUS. A county. Most of the states are divided into counties; some, as
Louisiana, are divided into parishes.

COMITES. Persons who are attached to a public minister, are so called. As to
their privileges, see 1 Dall. 117; Baldw. 240; and Ambassador.

COMITY. Courtesy; a disposition to accommodate.
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 Cranch, 299; 2 Mass. 84; 6 Mass. 358; 7 Mart. Lo. R. 318. See Conflict of
Laws; Lex loci contractus.

COMMAND. This word has several meanings. 1. It signifies an order; an
apprentice is bound to obey the lawful command of his master; a constable
may command rioters to keep the peace.
2. He who commands another to do an unlawful act, is accessary to it. 3
Inst. 51, 57; 2 Inst. 182; 1 Hayw.
3. Command is also equivalent to deputation or voluntary substitution;
as, when a master employs one to do a thing, he is said to have Commanded
him to do it; and he is responsible accordingly. Story Ag. Sec. 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
Pendens.

COMENDAM, eccles. law. When a benefice or church living is void or vacant,
it is commended to the. care of some sufficient clerk to be supplied, until
it can be supplied with a pastor. He to whom the church is thus commended is
said to hold in commendam, and he is entitled to the profits of the living.
Rob. 144; Latch, 236.
2. In Louisiana, there is a species of limited partnership called a
partnership in commendam. It is formed by a contract, by which one person or
partnership agrees to furnish another person or partnership a certain
amount, either in property or money, to be employed by the person or
partnership to whom it is furnished, in his or their own name or firm, on
condition of receiving a share in the profits, in the proportion determined
by the contract, and of being liable to losses and expenses, to the amount
furnished, and no more. Civ. Code of Lo. 2810. A similar partnership exists
in France. Code de Comm. 26, 33; Sirey, tom. 12, part 2, p. 25. He who makes
this contract is called in respect to those to whom he makes the advance of
capital, a partner in commendam. Civ. Code of Lo. art. 2811.

COMMENDATARY. A person who holds a church living or presentment in
commendam.

COMMENDATION. The act of recommending, praising. A merchant who merely
commends goods he offers for sale, does not by that act warrant them, unless
there is some fraud: simplex commendatio non obligat.

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

COMMERCE, trade, contracts. The exchange of commodities for commodities;
considered in a legal point of view, it consists in the various agreements
which have for their object to facilitate the exchange of the products of
the earth or industry of man, with an intent to realize a profit. Pard. Dr.
Coin. n. 1. In a 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 Const. Sec. 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, Sec. 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 with
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 Abatement 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.

C0@MMISSION, 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 and walls, survey rivers, public streams, ditches, &c.

C0@MMISSlONS, 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 subject 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. Sec. 326; 3 Camp. R. 412; 4 Camp. R. 96; 2 Stark.
225, 294.
4. The commission of an agent is either ordinary or del credere. (q.v.)
The latter is an increase of the ordinary commission, in consideration
of the responsibility which the agent undertakes, by making himself
answerable for the solvency of those with whom he contracts. Liverm. Agency,
3, et seq.; Paley, Agency, 88, et seq.
5. In Pennsylvania, the amount missions allowed to executors and
trustees is generally fixed at five per centum on the sum received and paid
out, but this is varied according to circumstances. 1 9 S. & R. 209, 223; 4
Whart. 98; 1 Serg. & Rawle, 241. In England, no commissions are allowed to
executors or trustees. 1 Vern. R. 316, n. and the cases there: cited. 4 Ves.
72, n.

TO COMMIT. To send a person to prison by virtue of a warrant or other lawful
writ, for the commission of a crime, offence or misdemeanor, or for a
contempt, or non-payment of a debt.

COMMITMENT, criminal law, practice. The warrant. or order by which a court
or magistrate directs a ministerial officer to take a person to prison. The
commitment is either for further hearing, (q.v.) or it is final.
2. The formal requisites of the commitment are, 1st. that it be 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 Cranch,
R. 448; see Harp. R. 313. In this case it is said a seal is not
indispensable.
3. - 2d. It must be made in the name of the United States, or of the
commonwealth, or people, as required by the constitution of the United
States or, of the several states.
4. - 3d. It should be directed to the keeper of the prison, and not
generally to carry the party to prison. 2 Str. 934; 1 Ld. Raym. 424.
5. - 4th. The prisoner should be described by his name and surname, or
the name he gives as his.
6. - 5th. The commitment ought to state that the party has been charged
on oath. 3 Cranch, R.448. But see 2 Virg. Cas. 504; 2 Bail. R. 290.
7. - 6th. The particular crime charged against the prisoner should be
mentioned with convenient certainty. 3 Cranch, R. 449; 11 St. Tr. 304. 318;
Hawk. B. 2, c. 16, s. 16 Chit. Cr. Law, 110.
8. - 7th. The commitment should point out the place of imprisonment,
and not merely direct that the party be taken to prison. 2 Str. 934; 1 Ld.
Ray. 424.
9. - 8th. In a final commitment, the command to the keeper of the
prison should be to keep the prisoner "until he shall be discharged by due
course of law," when the offence is not bailable; when it is bailable the
gaoler should be, directed to keep the prisoner in his "said custody for
want of sureties, or until he shall be discharged by due course of law."
When the commitment is not final, it is usual to commit the prisoner "for
further hearing." The commitment is also called a mittimus. (q.v.)
10. The act of sending a person to prison charged with the commission of
a crime by virtue of such a warrant is also called a commitment. Vide,
generally, 4 Vin. Ab. 576; Bac. Ab. h.t.; 4 Cranch, R. 129; 4 Dall. R. 412;
1 Ashm. R. 248; 1 Cowen, R. 144; 3 Conn. R. 502; Wright, R. 691; 2 Virg.
Cas. 276; Hardin, R. 249; 4 Mass. R. 497; 14 John. R. 371 2 Virg. Cas. 594;
1 Tyler, R. 444; U. S. Dig. h.t.

COMMITTEE, practice. When a person has been found non compos, the law
requires that a guardian should be appointed to take care of his person and
estate; this guardian is called the committee.
2. It is usual to select the committee from the next of kin; Shelf. on
Lun. 137; and in case of the lunacy of the husband or wife, the one who is
of sound mind is entitled, unless under very 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.

COMMIXTION, 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. Sec. 370, 371; Story, Bailm. Sec. 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, Sec. 20; 1
Bell's Com. 225; Ersk. Pr. Laws of Scotl. B. 3, t. 1, Sec. 9.
2. Judge Story regrets this term has not been adopted and naturalized,
as mandate has been from mandatum. Story, Com. Sec. 221. Ayliffe, in his
Pandects, has gone further, and terms the bailor the commodant, and the
bailee the commodatory, thus avoiding those circumlocutions, which, in the
common phraseology of our law, have become almost indispensable. Ayl. Pand.
B. 4, t. 16, p. 517. Browne, in his Civil Law, vol. 1, 352, calls the
property loaned "commodated property." See Borrower; Loan for use; Lender.

COMMODATUM. A contract, by which one of the parties binds himself to return
to the other certain personal chattels which the latter delivers to him, to
be used by him, without reward; loan -for use. Vide Loan for use.

COMMON. or right of common, English law. An encorporeal 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.

C0@MMON APPENDANT, Eng. law. A right attached to arable land, and is an
incident of tenure, and supposed to have originated by grant of the lord or
owner of a manor or waste, in consideration of certain rents or services, or
other value, to a freeholder or copyholder of plough land, and at the same
time either expressly or by implication, and as of common right and
necessity common appendant over his other wastes and commons. Co. Litt. 122
a; Willis, 222.

C0MMON APPURTENANT, Eng. law. A right granted by deed, by the owner of waste
or other land, to another person, owner of other land, to have his cattle,
or a particular description of cattle; levant and couchant upon the land, at
certain seasons of the year, or at all times of the year. An uninterrupted
usage for twenty years, is evidence of a grant. 15 East, 116.

COMMON ASSURANCES. Title by deeds are so called, because, it is said, every
man ' s estate is assured to him; these deed's or instruments operate either
as conveyances or as charges.
2.- 1. Deeds of conveyance are, first, at common law, and include
feoffments, gifts, grants, leases, exchanges, partition's, releases,
confirmations, surrenders, assignments, and defeasances; secondly, deeds of
conveyance under the statute of uses, as covenants to stand seised to uses,
bargains and sale, lease and release, deeds to lead or declare uses, and
deeds of appointment and revocation.
3. - 2. Deeds which do not convoy, but only charge or discharge lands,
are obligations, recognizances, and defeasances. Vide Assurance; Deed.

COMMON BAIL. The formal entry of fictitious sureties in the proper office of
the court, which is called filing common bail to the action. See Bail.

COMMON BAR, pleading. A plea to compel the plaintiff to assign the
particular place where the trespass has been Committed. Steph. Pl. 256. It
i's sometime's called a blank bar. (q.v.)

COMMON BENCH, bancus communis. The court of common pleas was anciently
called common bench, because the pleas and controversies there determined
were between common persons. See Bench.

COMMON CARRIER, contracts. One who undertakes for hire or reward to
transport the goods of any who may choose to employ him, from place to
place. 1 Pick. 50, 53; 1 Salk. 249, 250; Story, Bailm. Sec. 495 1 Bouv.
Inst. n. 1020.
2. Common carriers are generally of two descriptions, namely, carriers
by land and carriers by water. Of the former description are the proprietors
of stage coaches, stage wagons or expresses, which ply between different
places, and' carry goods for hire; and truckmen, teamsters, cartmen, and
porters, who undertake to carry goods for hire, as a common employment, from
one part of a town or city to another, are also considered as common
carriers. Carriers by water are the masters and owners of ships and
steamboats engaged in the transportation of goods for persons generally, for
hire and lightermen, hoymen, barge-owners, ferrymen, canal boatmen, and
others employed in like manner, are so considered.
3. By the common law, a common carrier is generally liable for all
losses which may occur to property entrusted to his charge in the course of
business, unless he can prove the loss happened in consequence of the act of
God, or of the enemies of the United States, or by the act of the owner of
the property. 8 S. & R. 533; 6 John. R. 160; 11 John. R. 107; 4 N. H. Rep.
304; Harp. R. 469; Peck. R. 270; 7 Yerg. R. 340; 3 Munf. R. 239; 1 Conn. R.
487; 1 Dev. & Bat. 273; 2 Bail. Rep. 157.
4. It was attempted to relax the rigor of the common law in relation to
carriers by water, in 6 Cowen, 266; but that case seems to be at variance
with other decisions. 2 Kent,. Com. 471, 472; 10 Johns. 1; 11 Johns. 107.
5. In respect to carriers by land, the rule of the common law seems
every where admitted in its full rigor in the states governed by the
jurisprudence of the common law. Louisiana follows the doctrine of the civil
law in her code. Proprietors of stage coaches or wagons, whose employment is
solely% to carry passengers, as hackney coachmen, are not deemed common
carriers; but if the proprietors of such vehicles for passengers, also carry
goods for hire, they are, in respect of such goods, to be deemed common
carriers. Bac. Ab. Carriers, A; 2 Show. Rep. 128 1 Salk. 282 Com. Rep. 25; 1
Pick. 50 5 Rawle, 1 79. The like reasoning applies to packet ships and
steam-boats, which ply between different ports, and are accustomed to carry
merchandise as well as passengers. 2 Watts. R. 443; 5 Day's Rep. 415; 1
Conn. R. 54; 4 Greenl. R. 411; 5 Yerg. R. 427; 4 Har. & J. 291; 2 Verm. R.
92; 2 Binn. Rep. 74; 1 Bay, Rep. 99; 10 John. R. 1; 11 Pick. R. 41; 8 Stew.
and Port. 135; 4 Stew. & Port. 382; 3 Misso. R. 264; 2 Nott. & M. 88. But
see 6 Cowen, R. 266. The rule which makes a common carrier responsible for
the loss of goods, does not extend to the carriage of persons; a carrier of
slaves is, therefore, answerable only for want of care and skill. 2 Pet. S.
C. R. 150. 4 M'Cord, R. 223; 4 Port. R. 238.
6. A common carrier of goods is in all cases entitled to demand the
price of carriage before he receives the goods, and, if not 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, Sec. 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. Sec. 591.
9. - 2. To provide coaches reasonably strong and sufficient for the
journey, with suitable horses, trappings and equipments.
10. - 3. To provide careful drivers of reasonable skill and. good habits
for the journey; and to employ horses which are steady and not vicious, or
likely to endanger the safety of the passengers.
11. - 4. Not to overload the coach either with passengers or luggage.
12. - 5. To receive and take care of the usual luggage allowed to every
passenger on the journey. 6 Hill, N. Y. Rep. 586.
13. - 2d. Their duties on the progress of the journey. 1. To stop at the
usual places, and allow the..Usual intervals for the refreshment of the
passengers. 5 Petersd. Ab. Carriers, p. 48, note.
14. - 2. To use all the ordinary precautions for the safety of
passengers on the road.
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, Sec. 11; 2
Campb. R. 631.
19. Second, carriers of passengers by water. By the act of Congress of
2d March, 1819, 3 Story's Laws U. S. 1722, it is enacted, 1. that no master
of a vessel bound to or from the United States shall take more than two
passengers for every five tons of the ship's custom-house measurement. 2.
That the quantity of water and provisions, which shall be taken on board and
secured under deck, by every Ship bound from the United States to any port
on the continent of Europe, shall be sixty gallons of water, one hundred
pounds of salted provisions, one gallon of vinegar, and one hundred pounds
of wholesome ship bread for each passenger, besides the stores of the crew.
The tonnage here mentioned, is the measurement of the custom-house; and in
estimating the number of passengers in a vessel, no deduction is to be made
for children or persons not paying, but the crew is not to be included.
Gilp. R. 334.
20. The act of Congress of February 22, 1847, section 1, provides: "That
if the master of any vessel, owned in whole or in part by a citizen of the
United States of America, or by a citizen of any foreign country, shall take
on board such vessel, at any foreign port or place, a greater number of
passengers than in the following proportion to the space occupied by them
and appropriated for their use, and unoccupied by stores or other goods, not
being the personal luggage of such passengers, that is to say, on the lower
deck or platform one passenger for every fourteen clear superficial feet of
deck, if such vessel is not to pass within the tropics during such voyage;
but if such vessel is to pass within the tropics during such voyage, then
one passenger for every twenty such clear superficial feet of deck, and on
the @orlop deck (if any) one passenger for every thirty such superficial
feet in all cases, with intent to bring such passengers to the United States
of America, and shall leave such port or, place with the same, and bring the
same, or any number thereof, within the jurisdiction of the United States
aforesaid, 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 children 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. Sec. 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 things 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 by force of arms or with exterior breaking
open of doors, or by any other extraordinary violence; art. 2939. For the
authorities on the subject of Common carriers in the civil law, the reader
is referred to Dig. 4, 9, 1 to 7; Poth. Pand. lib. 4, t. 9; Domat liv. 1, t.
16, S. 1 and 2; Pard. art. 537 to 555; Code Civil, art. 1782, 1786, 1952;
Moreau & Carlton, Partidas 5, t. 8, 1. 26; Ersk. Inst. B. 2, t. 1, Sec. 28;
1 Bell's Com. 465; Abb. on Sh. part 3, c. 3, Sec. 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 Highway.

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 words.
2. It is a rule that when words are used which will bear a natural
sense and an artificial one, or one to be made out by argument and
inference, the natural sense shall prevail; it. is simply a rule of
construction and not of addition common intent cannot add to a sentence
words which have been omitted. 2 H. Black. 530. In pleading, certainty is
required, but certainty to a common intent is sufficient; that is, what
upon a reasonable construction may be called certain, without recurring to
possible facts. Co. Litt. 203, a; Dougl. 163. See Certainty.

COMMON LAW. That which derives its force and authority from the universal
consent and immemorial practice of the people. See Law, common.

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

COMMON PLEAS. The name of a court having jurisdiction generally of civil
actions. For a historical account of the origin of this court in England,
see Boote's Suit at Law, 1 to 10. Vide Common Bench and Bench.
2. By common pleas, is also understood, such pleas or actions as are
brought by private persons against private persons; or by the government,
when the cause of action is of a civil nature. In England, whence we derived
this phrase, common pleas are so called to distinguish them from pleas of
the crown. (q.v.)

COMMON RECOVERY. A judgment recovered in a fictitious suit, brought against
the tenant of the freehold, in consequence of a default made by the person
who is last vouched to warranty in the suit., A common recovery is a kind of
conveyance. 2 Bouv. Inst. n. 2088, 2092-3. Vide Recovery.

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 punishment 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. 2093.

COMMONALTY, Eng. law. This word signifies, 1st. the common people of
England, as contradistinguished from the king and the nobles; 2d. the body
of a society as the masters, wardens, and commonalty of such a society.

COMMONER. One who is entitled with others to the use of a common.

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

COMMONWEALTH, government. A commonwealth is properly a free state, or
republic, having a popular or representative government. The term has been,
applied to the government of Great Britain. It is not applicable to absolute
governments. The states composing the United States are, properly, so many
commonwealths.
2. It is a settled principle, that no sovereign power is amenable to
answer suits, either in its own courts or in those of a foreign country,
unless by its own consent. 4 Yeates, 494.

COMMORANCY, persons. An abiding dwelling, or continuing as an inhabitant in
any place. It consists, properly, in sleeping usually in one place.,

COMMORANT. One residing or inhabiting a particular place. Barnes, 162.

COMMORIENTES. This Latin word signifies those who die at the same time, as,
for example, by shipwreck.
2. When several persons die by the same accident, and there is no
evidence as to who survived, the presumption of law is, they all died at the
same time. 2 Phillim. R. 261 Fearne on Rem. iv.; 5 B. & Adol. 91; Cro. Eliz.
503; Bac. Ab. Execution, D; 1 Mer. R. 308. See Death; Survivor.

COMMUNICATION, contracts. Information; consultation; conference.
2. In order to make a contract, it is essential there should be an
agreement; a bare communication or conference will not, therefore, amount to
a contract; nor can evidence of such communication be received in order to
take from, contradict, or alter a written agreement. 1 Dall. 426; 4 Dall.
340; 3 Serg. & Rawle, 609. Vide Pour-parler; Wharton'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 the marriage.
4. The community is either, first, conventional, or that which is
formed by an express agreement in the contract of marriage itself; by this
contract the legal community may be modified, as to the proportions which
each shall take, or as to the things which shall compose it; Civ. Code of L.
art. 2393; second, legal, which takes place when the parties make no
agreement on this subject in the contract of marriage; when it is regulated
by the law of the domicil they had at the time of marriage.
5. The effects which compose the community of gains, are divided into
two equal portions between the heirs, at the dissolution of the marriage.
Civ. Code of L. art. 2375. See Poth. h.t.; Toull. h.t.; Civ. Code of Lo.
tit. 6, c. 2, s. 4.
6. In another sense, community is the right which all men have,
according to the laws of nature, to use all things. Wolff, Inst. Sec. 186.

COMMUTATION, punishments. The change of a punishment to which a person has
been condemned into a less severe one. This can be granted only by the
executive authority in which the pardoning power resides.

COMMUTATIVE CONTRACT, civil law. One in which each of the contracting
parties gives and, receives an equivalent. The contract of sale is of this
kind. The seller gives the thing sold, and receives the price, which is the
equivalent. The buyer gives the price and receives the thing sold, which is
the equivalent.
2. These contracts are usually distributed into four classes, namely;
Do ut des; Facio ut facias; Facio ut des; Do ut facias. Poth. Obl. n. 13.
See' Civ. Code of Lo. art. 1761.

COMMUTATIVE JUSTICE. That virtue whose object is, to render to every one
what belongs to him, as nearly as may be, or that which governs contracts.
2. The word commutative is derived from commutare, which signifies to
exchange. Lepage, El. du Dr. ch. 1, art. 3, Sec. 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 enforced, 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, Sec. 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, Sec. 1, it is declared to
be high treason in any one who "doth compass or imagine the death of our
lord the king, or our lady his companion," &c. See 2 Inst. 8, 9; 1 H. H. P.
C. 124.

COMPANIONS, French law. This is a general term, comprehending all persons
who compose the crew of a ship or vessel. Poth. Mar. Contr. n. 163.

COMPANY. An association of a number of individuals for the 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 enterprises
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 that 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 which 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 contributio.
2. Compensation takes places, of course, by the mere 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 thing 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; Compensatio criminura, or recrimination (q.v.)
2. In cases of suits for divorce on the ground of adultery, a
compensation of the crime hinders its being granted; that is, if the
defendant proves that the party has also committed adultery, the defendant
is absolved as to the matters charged in the libel of the plaintiff. Ought.
tit. 214, Pl. 1; Clarke's Prax. tit. 115; Shelf. on Mar. & Div. 439; 1 Hagg.
Cons. R. 148. See Condonation; Divorce.

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 wholly written by
the testator, in Kentucky, it need not be so attested. See Attesting
witness; Credible witness; Disinterested witness; Respectable witness; and
Witness.

COMPETITORS, French law. Persons who compete or aspire to the same office,
rank or employment. As an English word in common use, it has a much wider
application. Ferriere, Dict. de Dr. h.t.

COMPILATION. A literary production, composed of the works of others, and
arranged in some methodical manner.
2. When a compilation requires in its execution taste, learning,
discrimination and intellectual labor, it 'is an object of copyright; as,
for example, Bacon's Abridgment. Curt. on Copyr. 186.

COMPLAINANT. One who makes a complaint. A plaintiff in a suit in chancery is
so called.

COMPLAINT, crim. law. The allegation made to a proper officer, that some
person, whether known or unknown, has been guilty of a designated offence,
with an offer to prove the fact, and a request that the offender may be
punished.
2. To have a legal effect, the complaint must be supported by such
evidence as shows that an offence has been committed, and renders it certain
or probable that it was committed by the person named or described in the
complaint.

COMPOS MENTIS. Of sound mind. See non compos mentis.

COMPOSITION, contracts. An agreement, made upon a sufficient consideration,
between a debtor and creditor, by which the creditor accepts part of the
debt due to him in satisfaction of the whole. Montagu on Compos. 1; 3 Co.
118; Co. Litt. 212, b; 4 Mod. 88; 1 Str. 426; 2 T. R. 24, 26; 2 Chit. R.
541, 564; 5 D. & R. 56 3 B. & C. 242; 1 R. & M. 188; 1 B. & A. 103, 440; 3
Moore's R. 11; 6 T. R. 263; 1 D. & R. 493; 2 Campb. R. 283; 2 M. & S. 120; 1
N. R. 124; Harr. Dig. Deed VIII.
2. In England, compositions were formerly allowed for crimes and
misdemeanors, even for murder. But these compositions are no longer allowed,
and even a qui tam action cannot be lawfully compounded. Bac. Ab. Actions
qui tam, See 2 John. 405; 9 John. 251; 10 John. 118; 11 John. 474; 6 N. H.-
Rep. 200.

COMPOSITION OF MATTER. In describing the subjects of patents, the Act of
Congress of July 4, 1836, sect. 6, uses the words "composition of matter;"
these words are usually applied to mixtures and chemical compositions, and
in these cases it is enough that the compound is new. Both the composition
and the mode of compounding may be considered as included in the invention,
when the compound is new.

COMPOUND INTEREST. Interest allowed upon interest; for example, when a sum
of money due for interest, is added to the principal, and then bears
interest. This is not, in general, allowed. See Interest for money.

COMPOUNDER, in Louisiana. He who makes a composition. An amicable compounder
is one who has undertaken by the agreement of the parties to compound or
settle differences. between them. Code of Pract. of Lo. art. 444.

COMPOUNDING A FELONY, The act of a party immediately aggrieved, who agrees
with a thief or other felon that he will not prosecute him, on condition
that he return to him the goods stolen, or who takes a reward not to
prosecute. This is an offence punishable by fine and imprisonment. The mere
retaking by the owner of stolen goods is no offence, unless the offender is
not to be prosecuted. Hale, P. C. 546 1 Chit. Cr. Law, 4.

COMPROMISE, contracts. An agreement between two or more persons, who, to
avoid a lawsuit, amicably settle their differences, on such terms as they
can agree upon. Vide Com. Dig. App. tit. Compromise.
2. It will be proper to consider, 1. by whom the compromise must be
made; 2. its form; 3. the subject of the compromise; 4. its effects.
3. It must be made by a person having a right and capacity to enter
into the contract, and carry out his part of it, or by one having lawful
authority from such person.
4. The compromise may be by parol or in writing, and the writing may be
under seal or not: though as a general rule a partner cannot bind his
copartner by deed, unless expressly authorized, yet it would seem that a
compromise with the principal is an act which a partner may do in behalf of
his copartners, and that, though under seal, it would conclude the firm. 2
Swanst. 539.
5. The compromise may relate to a civil claim, either as a matter of
contract, or for a tort, but it must be of something uncertain; for if the
debt be certain and undisputed, a payment of a part will not, of itself,
discharge the whole. A claim connected with a criminal charge cannot be
compromised. 1 Chit. Pr. 17. See Nev. & Man. 275.
6. The compromise puts an end to the suit, if it be proceeding, and
bars any Suit which may afterwards be instituted. It has the effect of res
judicata. 1 Bouv. Inst. n. 798-9.
7. In the civil law, a compromise is an agreement between two or more
persons, who, wishing to settle their disputes, refer the matter, in
controversy to arbitrators, who are so called because those who choose them
give them full powers to arbitrate and decide what shall appear just and
reasonable, to put an end -to the differences of which they are made the
judges. 1 Domat, Lois Civ. lib. h.t. 14. Vide Submission; Ch. Pr. Index, h.t.

COMPROMISSARIUS, civil law. A name sometimes given to an arbitrator; because
the parties to the submission usually agree to fulfill his award as a
compromise.

COMPTROLLERS. There are officers who bear this name, in the treasury depart
@ment of the United States.
2. There are two comptrollers. It is the duty of the first to examine
all accounts settled by the first and fifth auditors, and certify the
balances arising thereon to the register; to countersign all warrants drawn
by the secretary.of the treasury, other than those drawn on the requisitions
of the sec @retaries of the war and navy departments, which shall be
warranted by law; to report to the secretary the official forms to be issued
in the different offices for collecting the public revenues, and the manner
and form of stating the accounts of the several persons employed therein;
and to superintend the preservation of the public accounts, subject to his
revision; and to provide for the payment of all moneys which may be
collected. Act of March 3, 1817, sect. 8; Act of Sept. 2, 1789, s. 2 Act of
March 7, 1822.
3. To superintend the recovery of all debts due to the United States;
to direct suits and legal proceedings, and to take such measures as may be
authorized by the laws, to enforce prompt payment of all such debt; Act of
March 3, 1817, sect. 10; Act of Sept. 2, 1789, s. 2; to lay before congress
annually, during the first week of their session, a list of such officers as
shall have failed in that year to make the settlement required by law; and a
statement of the accounts in the treasury, war, and navy departments, which
may have remained more than three years unsettled, or on which balances
appear to have been due more than three years prior to the thirteenth day of
September, then last past; together with a statement of the causes which
have prevented a settlement of the accounts, or the recovery of the balances
due to the United States. Act of March 3, 1809, sect. 2.
4. Besides these, this officer is required to perform minor duties,
which the plan of this work forbids to be enumerated here.
5. His salary is three thousand five hundred dollars per annum. Act of
Feb. 20, 1804, s. 1.
6. The duties of the second comptroller are to examine all accounts
settled by the second, third and fourth auditors, and certify the balances
arising -thereon to the secretary of the department in which the expenditure
has been incurred; to counter-sign all the warrants drawn by the secretary
of the treasury upon the requisition of the secretaries of the war and navy
departments, which shall be warranted by law; to report to the said
secretaries the official forms to be issued in the different offices for
disbursing public money in those departments, and the manner and form of
keeping and stating the accounts of the persons employed therein, and to
superintend the preservation of public accounts subject to his revision. His
salary is three thousand dollars per annum. Act of March 3, 1817, s. 9 and
15; Act of May 7, 1822.
7. A similar officer exists in several of the states, whose official
title is comptroller of the public accounts, auditor general, or other title
descriptive of the duties of the office.

COMPULSION. The forcible inducement to au act.
2. Compulsion may be lawful or unlawful. 1. When a man is compelled by
lawful authority to do that which be ought to do, that compulsion does not
affect the validity of the act; as for example, when a court of competent
jurisdiction compels a party to execute a deed, under the pain of attachment
for contempt, the grantor cannot object to it on the ground of compulsion.
2. But if the court compelled a party to do an act forbidden by law, or not
having jurisdiction over the parties or the subject-matter, the act done by
such compulsion would be void. Bowy. Mod. C. L. 305.
3. Compulsion is never presumed. Coercion. (q.v.)

COMPURGATOR. Formerly, when a person was accused of a crime, or sued in a
civil action, he might purge himself upon oath of the accusation made
against him, whenever the proof was not the most clear and positive; and if
upon his oath he declared himself innocent, he was absolved.
2. This usage, so eminently calculated to encourage perjury by
impunity, was soon found to be dangerous to the public safety. To remove
this evil the laws were changed, by requiring that the oath should be
administered with the greatest solemnity; but the form was soon disregarded,
for the mind became. easily familiarized to those ceremonies which at first
imposed on the imagination, and those who cared not to violate the truth did
not hesitate to treat the form with contempt. In order to give a greater
weight to the oath of the accused, the law was again altered so as to
require that the accused should appear before the judge with a certain
number of his neighbors, relations or friends, who should swear that they
believed the accused had sworn truly. This new species of witnesses were
called compurgators.
3. The number of compurgators varied according to the nature of the
charge and other circumstances. Encyclopedie, h.t.. Vide Du Cange, Gloss.
voc. Juramentum; Spelman's Gloss. voc. Assarth; Merl. Rep. mot Conjurateurs.
4. By the English law, when a party was sued in debt or simple
contract, @detinue, and perhaps some other forms of action, the defendant
might wage his law, by producing eleven compurgators who would swear they
believed him on his oath, by which he discharged himself from the action in
certain cases. Vide 3 Bl. Com. 341-848; Barr. on the Stat. 344; 2 Inst. 25;
Terms de la Ley; Mansel on Demurrer, 130, 131 Wager of Law.

COMPUTATION counting, calculation. It is a reckoning or ascertaining the
number of any thing.
2. It is sometimes used in the common law for the true reckoning or
account of time. Time is computed in two ways; first, naturally, counting
years, days and hours; and secondly, civilly, that is, that when the last
part of the time has once commenced, it is considered as accomplished.
Savig. Dr. Rom. Sec. 182. See Infant; Fraction. For the computation of a
year, see Com. Dig. Ann; of a mouth, Com. Dig. Temps. A; 1 John. Cas. 100 15
John. R. 120; 2 Mass. 170, n.; 4 Mass. 460; 4 Dall. 144; 3 S. & R. 169; of a
day, vide Day.; and 3, Burr 1434; 11 Mass. 204; 2 Browne, 18; Dig. 3, 4, 5;
Salk. 625; 3 Wils. 274.
3. It is a general rule that when an act is to be done within a certain
time, one day is to be taken inclusively, and one exclusively. Vide Lofft,
276; Dougl. 463; 2 Chit. Pr. 69; 3 Id. 108, 9; 3 T. R. 623; 2 Campb. R. 294;
4 Man. and Ryl. 300, n. (b) 5 Bingh. R. 339; S. C. 15, E. C. L. R. 462; 3
East, R. 407; Hob. 139; 4 Moore, R. 465; Har. Dig. Time, computation of; 3
T. R. 623; 5 T. R. 283; 2 Marsh. R. 41; 22 E. C. L. R. 270; 13, E, C. L. R.
238; 24 E. C. L. R. 53; 4 Wasb. C. C. R. 232; 1 Ma-son, 176; 1 Pet. 60; 4
Pet. 349; 9 Cranch, 104; 9 Wheat. 581. Vide Day; Hour; Month; Year.

CONCEALMENT, contracts. The unlawful suppression of any fact or
circumstance, by one of the parties to a contract, from the other, which in
justice ought to be made known. 1 Bro. Ch. R. 420; 1 Fonbl. Eq. B. 1, c. 3,
Sec. 4, note (n); 1 Story, Eq. Jur. Sec. 207.
2. Fraud occurs when one person substantially misrepresents or conceals
a material fact peculiarly within his own knowledge, in consequence of which
a delusion exists; or uses a device naturally calculated to lull the
suspicions of a careful man, and induce him to forego inquiry into a matter
upon which the other party has information, although such information be not
exclusively within his reach. 2 Bl. Com. 451; 3 Id. 166; Sugd. Vend. 1 to
10; 1 Com. Contr. 38; 3 B. & C. 623; 5 D. & R. 490; 2 Wheat. 183; 11 Id. 59;
1 Pet. Sup. C. R. 15, 16. The party is not bound, however, to disclose
patent defects. Sugd. Vend. 2.
3. A distinction has been made between the concealment of latent
defects in real and personal property. For example, the concealment by an
agent that a nuisance existed in connexion with a house the owner had to
hire, did not render the lease void. 6 IV. & M. 358. 1 Smith, 400. The rule
with regard to personalty is different. 3 Camp. 508; 3 T. R. 759.
4. In insurances, where fairness is so essential to, the contract, a
concealment which is only the effect of accident, negligence, inadvertence,
or mistake, if material, is equally fatal to the contract as if it were
intentional and fraudulent. 1 Bl. R. 594; 3 Burr. 1909. The insured is
required to disclose all the circumstances within his own knowledge only,
which increase the risk. He is not, however, bound to disclose general
circumstances which apply to all policies of a particular description,
notwithstanding they may greatly increase the risk. Under this rule, it has
been decided that a policy is void, which was obtained by the concealment
by the assured of the fact that he had heard that a vessel like his was
taken. 2 P. Wms. 170. And in a case where the assured had information of "a
violent storm" about eleven hours after his vessel had sailed, and had
stated only that "there had been blowing weather and severe storms on the
coast after the vessel had sailed" but without any reference to the
particular storm it was decided that this was a concealment, which vitiated
the policy. 2 Caines R. 57. Vide 1 Marsh. Ins: 468; Park, Ins. 276; 14 East,
R. 494; 1 John. R. 522; 2 Cowen, 56; 1 Caines, 276; 3 Wash. C. C. Rep. 138;
2 Gallis. 353; 12 John. 128.
5. Fraudulent concealment avoids the contract. See, generally, Verpl.
on Contr. passim; Bouv. Inst. Index, h.t.; Marsh. Ins. B. 1, c. 9; 1 Bell's
Com. B. 2, pt. 3, c. 15 s. 3, Sec. 1; 1 M. & S. 517; 2 Marsh. R. 336.

CONCESSI, conveyancing. This is a Latin word, signifying, I have granted. It
was frequently used when deeds and other conveyances were written in Latin..
It is a word of general extent, and is said to amount to a grant, feoffment,
lease, release, and the like. 2 Saund. 96; Co. Lift. 301, 302; Dane's Ab.
Index, h.t.; 5 Whart. R. 278.
2. It has been held that this word in a feoffment or fine implies no -
warranty. Co. Lit. 384 @Noke's Case, 4 Rep. 80; Vaughan's Argument in Hayes
v. Bickoxsteth, Vaughan, 126; Butler's Note, Co. Lit. 3 84. But see 1 Freem.
339, 414.

CONCESSION. A grant. This word is frequently used in this sense when applied
to grants made by the French and Spanish governments in Louisiana.

CONCESSIMUS. A Latin word, which signifies, we have granted. This word
creates a covenant in law, for the breach of which the grantors may be
jointly sued. It imports no warranty of a freehold, but as in case of a
lease for years. Spencer's Case, 5 Co. Rep. 16 Brown v. Heywood, 3 Keble,
Rep. 617 Bac. Ab. Covenant, B. See Bac. Ab. officers, &c. E.

CONCESSOR. A grantor; one who makes a concession to another.

CONCILIUM. A day allowed to a defendant to make his defence; an imparlance,
4 Bl. Com. 356, n.; 3 T. R. 530.

CONCILIUM REGIS. The name of a tribunal which existed in England during the
times of Edward I. and Edward H., composed of the judges and sages of the
law. To them were referred cases of great difficulty. Co. Litt. 804.

CONCLAVE. An assembly of cardinals for the purpose of electing a pope; the
place where the assembly is held is also called a conclave. It derives this
name from the fact that all the windows and doors are looked, with the
exception of a single panel, which admits a gloomy light.

CONCLUSION, practice. Making the last argument or address to the court or
jury. The party on whom the onus probandi is cast, in general has the
conclusion.

CONCLUSION, remedies. An estoppel; a bar; the act of a man by which he has
confessed a matter or thing which he can no longer deny; as, for example,
the sheriff is concluded by his return to a writ, and therefore, if upon a
capias he return cepi corpus, he cannot afterwards show that he did not
arrest the defendant, but is concluded by his return. Vide Plowd. 276, b; 3
Tho. Co. Litt. 600.

CONCLUSION TO THE COUNTRY, pleading. The tender of. an issue to be tried by
a jury is called the conclusion to the country.
2. This conclusion is in the following words, when the issue is
tendered by the defendant: "And of this the said C D puts himself upon the
country." When it is tendered by the plaintiff, the formula is as follows:
"And this the said A B prays may be inquired of by the country." It held,
however, that there is no material difference between these two modes of
expression, and that, if ponit se, be substituted for petit quod inquiratur,
or vice versa, the mistake is unimportant. 10 Mod. 166.
3. When there is an affirmative on one side, and a negative on the
other, or vice versa, the conclusion should be to the country. T. Raym. 98;
Carth. 87; 2 Saund. 189; 2 Burr. 1022. So it is, though the affirmative and
negative be not in express words, but only tantamount thereto. Co. Litt.
126, a; Yelv. 137; 1 Saund. 103; 1 Chit. Pl. 592; Com. Dig. Pleader, E 32.

CONCLUSIVE. What puts an end to a thing. A conclusive presumption of law, is
one which cannot be contradicted even by direct and positive proof. Take,
for example, the presumption that an infant is incapable of judging whether
it is or is not against his interest; When infancy is pleaded and proved,
the plaintiff cannot show that the defendant was within one day of being of
age when the contract was made, and perfectly competent to make a contract.
3 Bouv. Inst. n. 3061.

CONCLUSIVE EVIDENCE. That which cannot be contradicted by any other
evidence,; for example, a record, unless impeached for fraud, is conclusive
evidence between the parties. 3 Bouv. Inst. n. 3061-62.

CONCLUSUM, intern. law. The form of an acceptance or conclusion of a treaty;
as, the treaty was ratified purely and simply by a conclusum. It is the name
of a decree of the Germanic diet, or of the aulic council.

CONCORD, estates, conveyances, practice. An agreement or supposed agreement
between the parties in levying a fine of lands, in which the deforciant (or
he who keeps the other out of possession,) acknowledges that the lands in
question, are the right of the complainant;. and from the acknowledgment or
recognition of right thus made, the party who levies the fine is called the
cognisor, and the person to whom it is levied, the cognisee. 2 Bl. Com. 350;
Cruise, Dig. tit. 35, c. 2, s. 33; Com. Dig. Fine, E 9.

CONCORDATE. A convention; a pact; an agreement. The term is generally
confined to the agreements made between independent government's; and, most
usually applied to those between the pope and some prince.

CONCUBINAGE. This term has two different significations; sometimes it means
a species of marriage which took place among the ancients, and which is yet
in use in some countries. In this country it means the act or practice of
cohabiting as man and woman, in sexual commerce, without the authority of
law, or a legal marriage. Vide 1 Bro. Civ. Law, 80; Merl. Rep. b. t.; Dig.
32, 49, 4; Id. 7, 1, 1; Code, 5, 27, 12.

CONCUBINE. A woman who cohabits with a man as his wife, without being
married.

TO CONCUR. In Louisiana, to concur, signifies, to claim a part, of the
estate of an insolvent along with other claimants; 6 N. S. 460; as "the
wife concurs with her husband's creditors, and claims a privilege over
them."

CONCURRENCE, French law. The equality of rights, or privilege which several
persons-have over the same thing; as, for example, the right which two
judgment creditors, Whose judgments were rendered at the same time, have to
be paid out of the proceeds of real estate bound by them. Dict. de Jur. h.t.

CONCURRENT. Running together; having the same authority; thus we say a
concurrent consideration occurs in the case of mutual promises; such and
such a court have concurrent jurisdiction; that is, each has the same
jurisdiction.

CONCUSSION, civ. law. The unlawful forcing of another by threats of violence
to give something of value. It differs from robbery in this, that in robbery
the thing is taken by force, while in concussion it is obtained by
threatened violence. Hein. Lec. El, Sec. 1071

CONDEDIT, eccl. law. The name of a plea, entered by a party to a libel filed
in the ecclesiastical court, in which it is pleaded that the deceased made
the will which is the subject of the suit, and that he was of sound mind. 2
Eng. Eccl. Rep. 438; 6 Eng. Eccl. Rep. 431.

CONDELEGATES. Advocates who have been appointed judges of the high court of
delegates are so called. Shelf. on Lun. 310.

CONDEMNATION, mar. law. The sentence or judgment of a court of competent
jurisdiction that a ship or vessel taken as a prize on the high seas, was
liable to capture, and was properly and legally captured.
2. By the general practice of the law of nations, a sentence of
condemnation is, at present, generally deemed necessary in order to divest
the title of a vessel taken as a prize. Until this has been done the
original owner may regain his property, although the ship may have been in
possession of the enemy twenty-four hours, or carried infra praesidia. 1
Rob. Rep. 134; 3 Rob. Rep. 97, n.; Carth. 423; Chit. Law of Nat. 99, 100; 10
Mod. 79; Abb. on Sh. 14; Wesk. on Ins. h.t.; Marsh. on Ins. 402. A sentence
of condemnation is generally binding everywhere. Marsh. on Ins. 402.
3. The term condemnation is also applied to the sentence which declares
a ship to be unfit for service; this sentence and the grounds of it may,
however, be re-examined and litigated by parties interested in disputing it.
5 Esp. N. P. C. 65; Abb. on Shipp. 4.

CONDEMNATION, civil law. A sentence of judgment which condemns some one to
do, to give, or to pay something; or which declares that his claim or
pretensions are unfounded. This word is also used by common lawyers, though
it is more usual to say conviction, both in civil and criminal cases. It is
a maxim that no man ought to be condemned unheard, and without the
opportunity of being heard.

CONDICTIO INDEBITI, civil law. When the plaintiff has paid to the defendant
by mistake what he was not bound to pay either in fact or in law, he may
recover it back by an action called condictio indebiti. This action does not
lie, 1. if the sum was due ex cequitate, or by a natural obligation; 2. if
he who made the payment knew that nothing was due, for qui consulto dat quod
non debetat, prcesumitur donare. Vide Quasi contract.

CONDICTION, Lat. condictio. This term is used in the civil law in the same
sense as action. Condictio certi, is an action for the recovery of a certain
thing, as our action of replevin, condictio incerti, is an action given for
the recovery of an uncertain thing. Dig. 12, 1.

CONDITION, contracts, wills. In its most extended signification, a condition
is a clause in a contract or agreement which has for its object to suspend,
to rescind, or to modify the principal obligation; or in case of a will, to
suspend, revoke, or modify the devise or bequest. 1 Bouv. Inst. n. 730. It
ii in fact by itself, in many cases, an agreement; and a sufficient
foundation as an agreement in writing, for a bill in equity, praying for a
specific performance. 2 Burr. 826. In pleading, according to the course of
the common law, the bond and its condition are to some intents and purposes,
regarded as distinct things. 1 Saund. Rep. by Wms. 9 b. Domat has given a
definition of a condition, quoted by Hargrave, in these words: "A condition
is any portion or agreement which regulates what the parties have a mind
should be done, if a case they foresee should come to pass." Co. Litt. 201
a.
2. Conditions sometimes suspend the obligation; as, when it is to have
no effect until they are fulfilled; as, if I bind myself to pay you one
thousand dollars on condition that the ship Thomas Jefferson shall arrive in
the United States from Havre; the contract is suspended until the arrival of
the ship.
3. The condition sometimes rescinds the contract; as, when I sell you
my horse, on condition that he shall be alive on the first day of January,
and he dies before that time.
4. A condition may modify the contract; as, if I sell you two thousand
bushels of corn, upon condition that my crop shall produce that much, and it
produces only fifteen hundred bushels.
5. In a less extended acceptation, but in a true sense, a condition is
a future and uncertain event, on the existence or non-existence of which is
made to depend, either the accomplishment, the modification, or the
rescission of an obligation or testamentary disposition.
6. There is a marked difference between a condition and a limitation.
When a in is given generally, but the gift may defeated upon the happening
of an uncertain event, the latter is called a condition but when it is given
to be enjoyed until the event arrives, it is a limitation. See Limitation;
Estates. It is not easy to say when a condition will be considered a
covenant and when not, or when it will be holden to be both. Platt on Cov.
71.
7. Events foreseen by conditions are of three kinds. Some depend on the
acts of the persons who deal together, as, if the agreement should provide
that a partner should not join another partnership. Others are independent
of the will of the parties, as, if I sell you one thousand bushels of corn,.
on condition that my crop shall not be destroyed by a fortuitous event, or
act of God. Some depend in part on the contracting parties and partly on the
act of God, as, if it be provided that such merchandise shall arrive by a
certain day.
8. A condition may be created by inserting the very word condition, or
on condition, in the deed or agreement; there are, however, other words that
will do so as effectually, as proviso, if, &c. Bac. Ab. Conditions, A.
9. Conditions are of various kinds; 1. as to their form, they are
express or implied. This division is of feudal origin. 2 Woodes. Lect. 138.
2. As to their object, they are lawful or unlawful; 3. as to the time when
they are to take effect, they are precedent or subsequent; 4. as to their
nature, they are possible or impossible 5. as to their operation, they are
positive or negative; 6. is to their divisibility, they are copulative or
disjunctive; 7. as to their agreement with the contract, they are consistent
or repugnant; 8. as to their effect, they are resolutory or suspensive.
These will be severally considered.
10. An express condition is one created by express words; as for
instance, a condition in a lease that if the tenant shall not pay the rent
at the day, the lessor may reenter. Litt. 328. Vide Reentry.
11. An implied condition is one created by law, and not by express
words; for example, at common law, the tenant for life holds upon the
implied condition not to commit waste. Co. Litt. 233, b.
12. A lawful or legal condition is one made in consonance with the law.
This must be understood of the law as existing at the time of making the
condition, for no change of the law can change the force of the condition.
For example, a conveyance was made to the grantee, on condition that he
should not aliens until be reached the age of twenty-five years. Before he
acquired this age be aliened, and made a second conveyance after he obtained
it; the first deed was declared void, and the last valid. When the condition
was imposed, twenty-five was the age of majority in the state; it was
afterwards changed to twenty-one. Under these circumstances the condition
was held to be binding. 3 Miss., R. 40.
13. An unlawful or illegal condition is one forbidden by law. Unlawful
conditions have for their object, 1st. to do something malum in se, or malum
prohibitum; 2d. to omit the performance of some duty required by law 3d. to
encourage such act or omission. 1 P. Wms. 189. When the law prohibits, in
express terms, the transaction in respect to which the condition is made,
and declares it void, such condition is then void; 3 Binn. R. 533; but when
it is prohibited, without being declared void, although unlawful, it is not
void. 12 S. @ R. 237. Conditions in restraint of marriage are odious, and
are therefore held to the utmost rigor and strictness. They are contrary to
sound policy, and by the Roman law were all void. 4 Burr. Rep. 2055; 10
Barr. 75, 350; 3 Whart. 575.
14. A condition precedent is one which must be performed before the
estate will vest, or before the obligation is to be performed. 2 Dall. R.
317. Whether a condition shall be considered as precedent or subsequent,
depends not on the form or arrangement of the words, but on the manifest
intention of the parties, on the fair construction of the contract. 2 Fairf.
R. 318; 5 Wend. R. 496; 3 Pet, R. 374; 2 John. R. 148; 2 Cain es, R. 352; 12
Mod. 464; 6 Cowen, R. 627 9 Wheat. R. 350; 2 Virg. Cas. 138 14 Mass. R. 453;
1 J. J. Marsh. R. 591 6 J. J. Marsh. R. 161; 2 Bibb, R. 547 6 Litt. R. 151;
4 Rand. R. 352; 2 Burr. 900
15. A subsequent condition is one which enlarges or defeats an estate or
right, already created. A conveyance in fee, reserving a life estate in a
part of the land, and made upon condition that the grantee shall pay certain
sums of money at divers times to several persons, passes the fee upon
condition subsequent. 6 Greenl. R. 106. See 1 Burr. 39, 43; 4 Burr. 1940.
Sometimes it becomes of great importance to ascertain whether the condition
is precedent or subsequent. When a precedent condition becomes impossible by
the act of God, no estate or right vests; but if the condition is
subsequent, the estate or right becomes absolute. Co. Litt. 206, 208; 1
Salk. 170.
16. A possible condition is one which may be performed, and there is
nothing in the laws of nature to prevent its performance.
17. An impossible condition is one which cannot be accomplished
according to the laws of nature; as, to go from the United States to Europe
in one day.; such a condition is void. 1 Swift's Dig. 93; 5 Toull. n. 242-
247. When a condition becomes impossible by the act of God, it either vests
the estate, or does not, as it is precedent or subsequent: when it is the
former, no estate vests when the latter, it becomes absolute. Co. Litt. 206,
a, 218, a; 3 Pet. R. 374; 1 Hill. Ab. 249. When the performance of the
condition becomes impossible by the act of the party who imposed it, the
estate is rendered absolute. 5 Rep. 22; 3 Bro. Parl. Cas. 359. Vide 1
Paine's R. 652; Bac. Ab. Conditions, M; Roll. Ab. 420; Co. Litt. 206; 1 Rop.
Leg. 505; Swinb. pt. 4, s. 6; Inst. 2, 4, 10; Dig. 28, 7, 1; Id. 44, 7, 31;
Code 6, 25, 1; 6 Toull. n. 486, 686 and the article Impossibility.
18. A positive condition requires that the event contemplated shall
happen; as, If I marry. Poth. Ob. part 2, c. 3, art. 1, Sec. 1. 19. A
negative condition requires that the event contemplated shall not happen as
If I do not marry. Potb. Ob. n. 200.
20. A copulative condition, is one of several distinct-matters, the
whole of which are made precedent to the vesting of an estate or right. In
this case the entire condition must be performed, or the estate or right can
never arise or take place. 2 Freem. 186. Such a condition differs from a
disjunctive condition, which gives to the party the right to perform the one
or the other; for, in this case, if one becomes impossible by the act of
God, the whole will, in general, be excused. This rule, however, is not
without exception. 1 B. & P. 242; Cro. Eliz. 780; 5 Co. 21; 1 Lord Raym.
279. Vide Conjunctive; Disjunctive.
21. A disjunctive condition is one which gives the party to be affected
by it, the right to perform one or the other of two alternatives.
22. A consistent condition is one which agrees with other parts of the
contract.
23. A repugnant condition is one which is contrary to the contract; as,
if I grant to you a house and lot in fee, upon condition that you shall not
aliene, the condition is repugnant and void, as being inconsistent with the
estate granted. Bac. Ab. Conditions L; 9 Wheat. 325; 2 Ves. jr. 824.
24. A resolutory condition in the civil law is one which has for its
object, when accomplished the revocation of the principal obligation. This
condition does not suspend either the existence or the execution of the
obligation, it merely obliges the creditor to return what he has received.
25. A suspensive condition is one which suspends the fulfilment of the
obligation until it has been performed; as, if a man bind himself to pay one
-hundred dollars, upon condition that the ship Thomas Jefferson shall arrive
from Europe. The obligation, in this case, is suspended until the arrival of
the ship, when the condition having been performed, the obligation becomes
absolute, and it is no longer conditional. A suspensive condition is in
fact a condition precedent.
26. Pothier further divides conditions into potestative, casual and
mixed.
27. A potestative condition is that which is in the power of the person
in whose favor it is contracted; as, if I engage to give my neighbor a sum
of money, in case he outs down a tree which obstructs my. prospect. Poth.
Obl. Pt. 2, c. 3, art. 1, Sec. 1.
28. A casual condition is one which depends altogether upon chance, and
not in the power of the creditor, as the following: if I have children; if I
have no children; if such a vessel arrives in the United States, &c. Poth.
Ob. n. 201.
29. A mixed condition is one which depends on the will of the
creditor and of a third person; as, if you marry my cousin. Poth. Ob. n.
201. Vide, generally, Bouv. Inst. Index, h.t.

CONDITION, persons. The situation in civil society which creates certain
relations between the individual, to whom it is applied, and one or more
others, from which mutual rights and obligations arise. Thus the situation
arising from marriage gives rise to the conditions of husband and wife that
of paternity to the conditions of father and child. Domat, tom. 2, liv. 1,
tit. 9, s. 1, n. 8.
2. In contracts every one is presume to know the condition of the
person with whom he deals. A man making a contract with an infant cannot
recover against him for a breach of the contract, on the ground that he was
not aware of his condition.

CONDITIONAL OBLIGATION. One which is superseded by a condition under which
it was created and which is not yet accomplished. Poth. Obl. n. 176, 198.

CONDITIONS OF SALE, contracts. The terms upon which the vendor of property
by auction pro poses to sell it; the instrument containing these terms, when
reduced to writing or printing, is also called the conditions of sale.
2. It is always prudent and advisable that the conditions of sale
should be printed and exposed in the auction room; when so done, they are
binding on both parties, and nothing that is said at the time of sale, to
add to or vary such printed conditions, will be of any avail. 1 H. Bl. 289
12 East, 66 Ves. 330; 15 Ves. 521; 2 Munf. Rep. 119; 1 Desauss. Ch. Rep.
573; 2 Desauss. Ch. R. 320; 11 John. Rep. 555; 3 Camp. 285. Vide forms of
conditions of sale in Babington on Auctions, 233 to 243; Sugd. Vend. Appx.
No. 4. Vide Auction; Auctioneer; Puffer.

CONDONATION. A term used in the canon law. It is a forgiveness by the
husband of his wife, or by a wife of her husband, of adultery committed,
with an implied condition that the injury shall not be repeated, and that
the other party shall be treated with conjugal kindness. 1 Hagg. R. 773; 3
Eccl. Rep. 310. See 5 Mass. 320 5 Mass. 69; 1 Johns. Ch. R. 488.
2. It may be express or implied, as, if a husband, knowing of his
wife's infidelity, cohabit with her. 1 Hagg. Rep. 789; 3 Eccl. R. 338.
3. Condonation is not, for many rea sons, held so strictly against a
wife as against a husband. 3 Eccl. R. 830 Id. 341, n.; 2 Edw. R. 207. As all
condonations, by operation of law, are expressly or impliedly conditional,
it follows that the effect is taken off by the repetition of misconduct; 3
Eccl. R. 329 3 Phillim. Rep. 6; 1 Eccl. R. 35; and cruelty revives condoned
adultery. Worsley v. Worsley, cited in Durant v. Durant, 1 Hagg. Rep. 733; 3
Eccl. Rep. 311.
4. In New York, an act of cruelty alone, on the part of the husband,
does not revive condoned adultery, to entitle the wife to a divorce. 4
Paige's R. 460. See 3 Edw. R. 207.
5. Where the parties have separate beds, there must, in order to found
condonation, be something of matrimonial intercourse presumed; it does not
rest merely on the wife's not. withdrawing herself. 3 Eccl. R. 341, n.; 2
Paige, R. 108.
6. Condonation is a bar to a sentence of divorce. 1 Eccl. Rep. 284; 2
Paige, R. 108. In Pennsylvania, by the Act of the 13th of March, 1815, Sec.
7, 6 Reed's Laws of Penna. 288, it is enacted that "in any suit or action
for divorce for cause of adultery, if the defendant shall allege and prove
that the plaintiff has admitted the defendant into conjugal society or
embraces, after he or she knew of the criminal fact, or that the plaintiff
(if the husband) allowed of his wife's prostitutions, or received hire, for
them, or exposed his wife to lewd company, whereby she became ensnared to
the crime aforesaid, it shall be a good defence, and perpetual bar against
the same." The same rule may be found, perhaps, in the codes of most
civilized countries. Villanova Y Manes, Materia Criminal Forense, Obs. 11,
c. 20, n. 4. Vide, generally, 2 Edw. 207; Dev. Eq. R. 352 4 Paige, 432; 1
Edw. R. 14; Shelf. on M. & D. 445; 1 John. Ch. R. 488 4 N. Hamp. R. 462; 5
Mass. 320.

CONDUCT, law of nations. This term is used in the phrase safe conduct, to
signify the security given, by authority of the government, under the great
seal, to a stranger, for his quietly coming into and passing out of the
territories over which it has jurisdiction. A safe conduct differs from a
passport; the former is given to enemies, the latter to friends or citizens.

CONDUCT MONEY. The money advanced to a witness who has been subpoenaed to
enable him to attend a trial, i's so called.

CONDUCTOR OPERARUM, civil law. One who undertakes, for a reward, to perform
a job or piece of work for another. See Locator Operis.

CONFEDERACY, intern. law. An agreement between two or more states or
nations, by which they unite for their mutual protection and good. This term
is applied to such agreement between two independent nations, but it is used
to signify the union of different states of the same nation, as the
confederacy of the states.
2. The original thirteen states, in 1781, adopted for their federal
government the "Articles of confederation and perpetual union between the
States," which continued in force until the present constitution of the
United States went into full operation, on the 30th day of April, 1789, when
president Washington was sworn into office. Vide 1 Story on the Const. B. 2,
c. 3 and 4.

CONFEDERACY, crim. law. An agreement between two or more persons to do an
unlawful act, or an act, which though not unlawful in itself, becomes so by
the confederacy. The technical term usually employed to signify this
offence, is conspiracy. (q.v.)

CONFEDERACY, equity pleading. The fourth part of a bill in chancery usually
charges a confederacy; this is either general or special.
2. The first is by alleging a general charge of confederacy between the
defendants and other persons to injure or defraud the plaintiff. The common
form of the charge is, that the defendants, combining and confederating
together, to and with divers other persons as yet to the plaintiff unknown,
but whose names, when discovered, he prays may be inserted in the bill, and
they be made parties thereto, with proper and apt words to charge them with
the premises, in order to injure and oppress the plaintiff in ti e premises,
do absolutely refuse, &c. Mitf. Eq. Pl. by Jeremy, 40; Coop. Eq. Pl. 9
Story, Eq. Pl. Sec. 29; 1 Mont. Eq. Pl. 77; Barton, Suit in Eq. 33; Van
Heyth. Eq. Drafts, 4.
3. When it is intended to rely on a confederacy or combination as a
ground of equitable jurisdiction, the confederacy must be specially charged
to justify an assumption of jurisdiction. Mitf. Eq. Pl. by Jeremy, 41;
Story, Eq. Pl. Sec. 30.
4. A general allegation of confederacy is now considered as mere form.
Story, Eq. Pl. Sec. 29; 4 Bouv. Inst. n. 4169.

CONFEDERATION, government. The name given to that form of government which
the American colonies, on shaking off the British yoke, devised for their
mutual safety and government.
2. The articles of confederation, (q.v.) were finally adopted on the
15th of November, 1777, and with the exception of Maryland, which, however,
afterwards also agreed to them, were speedily adopted by the United States,
and by which they were formed into a federal @bod y, and went into force on
the first day of March, 1781; 1 Story Const. Sec. 225; and so remained until
the adoption of the present constitution, which acquired the force of the
supreme law of the land on the first Wednesday of March, 1789. 5 Wheat. R.
420. Vide Articles of Confederation.

CONFERENCE, practice, legislation. In practice, it is the meeting of the
parties or their attorneys in a cause, for the purpose of endeavoring to
settle the same.
2. In legislation, when the senate and house of representatives cannot
agree on a bill or resolution which it is desirable should be passed,
committees are appointed by the two bodies respectively, who are called
committees of conference, and whose duty it is, if possible, to -reconcile
the differences between them.
3. In the French law, this term is used to signify the similarity and
comparison between two laws, or two systems of law; as the Roman and the
common law. Encyclopedie, h.t.
4. In diplomacy, conferences are verbal explanations between ministers
of two nations at least, for the purpose of accelerating various
difficulties and delays, necessarily attending written communications.

CONFESSION, crim. law, evidence. The voluntary declaration made by a person
who has committed a crime or misdemeanor, to another, of the agency or
participation which he had in the same.
2. When made without bias or improper influence, confessions are
admissible in evidence, as the highest and most satisfactory proof: because
it is fairly presumed that no man would make such a confession against
himself, if the facts confessed were not true but they are excluded, if
liable to the of having been unfairly obtained.
3. Confessions should be received with great caution, as they are
liable to many objections. There is danger of error from the misapprehension
of witnesses, the misuse of words, the failure of a party to express his own
meaning, the prisoner being oppressed by his unfortunate situation, and
influenced by hope, fear, and sometimes a worse motive, to male an untrue
confession. See the case of the two Boorns in Greenl. Ev. Sec. 214, note 1;
North American Review, vol. 10, p. 418; 6 Carr. & P. 451; Joy on Confess. s.
14, p. 100; and see 1 Chit. Cr. Law, 85.
4. A confession must be made voluntarily, by the party himself, to
another person. 1. It must be voluntary. A confession, forced from the mind
by the flattery of hope, or the torture of fear, comes in so questionable a
shape, when it is to be considered as evidence of guilt, that Lo credit
ought to be given to it. 1 Leach, 263. This is the principle, but what
amounts to a promise or a threat, is not so easily defined. Vide 2 East, P.
C. 659; 2 Russ. on Cr. 644 4 Carr. & Payne, 387; S. C. 19 Eng. Com. L. Rep.
434; 1 Southard, R. 231 1 Wend. R. 625; 6 Wend. R. 268 5 Halst. R. 163
Mina's Trial, 10; 5 Rogers' Rec. 177 2 Overton, R. 86 1 Hayw. (N. C.) R,
482; 1 Carr. & Marsh. 584. But it must be observed that a confession will be
considered as voluntarily made, although it was made after a promise of
favor or threat of punishment, by a person not in authority, over the
prisoner. If, however, a person having such authority over him be present at
the time, and he express no dissent, evidence of such confession cannot be
given. 8 Car. & Payne, 733.
5. - 2. The confession must be made by the party to be affected by it.
It is evidence only against him. In case of a conspiracy, the acts of one
conspirator are the acts of all, while active in the progress of the
conspiracy, but after it is over, the confession of one as to the part he
and others took in the crime, is not evidence against any but himself. Phil.
Ev. 76, 77; 2 Russ. on Cr. 653.
6. - 3. The confession must be to another person. It may be made to a
private individual, or under examination before a magistrate. The whole of
the confession must be taken, together with whatever conversation took place
at the time of the confession. Roscoe's Ev. N. P. 36; 1 Dall. R. 240 Id.
392; 3 Halst. 27 5 2 Penna. R. 27; 1 Rogers' Rec. 66; 3 Wheeler's C. C.
533; 2 Bailey's R. 569; 5 Rand. R. 701.
7. Confession, in another sense, is where a prisoner being arraigned
for an offence, confesses or admits the crime with which he is charged,
whereupon the plea of guilty is entered. Com Dig. Indictment, K; Id.
Justices, W 3; Arch. Cr. Pl. 1 2 1; Harr. Dig. b. t.; 20 Am. Jur. 68; Joy on
Confession.
8. Confessions are classed into judicial and extra judicial. Judicial
confessions are those made before a magistrate, or in court, in the due
course of legal proceedings; when made freely by the party, and with a full
and perfect knowledge of their nature and consequences, they are sufficient
to found a conviction. These confessions are such as are authorized by a
statute, as to take a preliminary examination in writing; or they are by
putting in the plea of guilty to an indictment. Extra judicial confessions
are those which are made by the part elsewhere than before a magistrate or
in open court. 1 Greenl. Ev. Sec. 216. See, generally, 3 Bouv. Inst. n.
3081-2.

CONFESSIONS AND AVOIDANCE, pleadings. Pleas in confession and avoidance are
those which admit the averments in the plaintiff Is declaration to be true,
and allege new facts which obviate and repel their legal effects.
2. These pleas are to be considered, first, with respect to their
division. Of pleas in confession and avoidance, some are distinguished (in
reference to their subject matter) as pleas in justification or excuse,
others as pleas in discharge. Com. Dig. Pleader, 3 M 12. The pleas of the
former class, show some justification or excuse of the matter charged in the
declaration; of the latter, some discharge or release of that matter. The
effect of the former, therefore, is to show that the plaintiff never had any
right of action, because the act charged was lawful; the effect of the
latter, to show that though he had once a right of action, it is discharged
or released by some matter subsequent. Of those in justification or excuse,
the plea of son assault demesne is an example; of those in discharge, a
release. This division applies to pleas only; for replications and other
subsequent pleadings in confession and avoidance, are not subject to such
Classification;
3. Secondly, they are to be considered in respect to their form. As to
their form, the reader is referred to Stephens on Pleading, 72, 79, where
forms are given. In common with all pleadings whatever, which do not tender
issue, they always conclude with a verification and prayer of judgment.
4. Thirdly, with respect to the quality of these pleadings, it is a
rule that every pleading by way of confession and avoidance must give color.
(q.v.) And see, generally, 1 Chit. Pl. 599; 2 Chit. Pl, 644; Co. Litt. 282,
b; Arch. Civ. Pl. 215; Dane's Ab. Index, ii. t.; 3 Bouv. Inst. n. 2921, 293
1.

CONFESSOR, evid. A priest of some Christian sect, who receives an account of
the sins of his people, and undertakes to give them absolution of their
sins.
2. The general rule on the subject of giving evidence of confidential
communications is, that the privilege is confined to counsel, solicitors,
and attorneys, and the interpreter between the counsel and the client. Vide
Confidential Communications. Contrary to this general rule, it has been
decided in New York, that a priest of the Roman Catholic denomination could
not be compelled to divulge secrets which he had received in auricular
confession. 2 City Hall Rec. 80, n.; Joy on Conf. Sec. 4, p. 49. See Bouv.
Inst. n. 3174 and note.

CONFIDENTIAL COMMUNICATIONS, evidence. Whatever is communicated professedly
by a client to his counsel, solicitor, or attorney, is considered as a
confidential communication.
2. This the latter is not permitted to divulge, for this is the
privilege of the client and not of the attorney.
3. The. rule is, in general, strictly confined to counsel, solicitors
or attorneys, except, indeed, the case of an interpreter between the counsel
and client, when the privilege rests upon the same grounds of necessity. 3
Wend. R. 339. In New York, contrary to this general rule, tinder the statute
of that state, it has been decided that information disclosed to a physician
while attending upon the defendant in his professional character, which
information was necessary to enable the witness to prescribe for his
patient, was a confidential communication which the witness need not have
testified. about; and in a case where such evidence had been received by the
master, it was rejected. 4 Paige, R. 460.
4. As to the matter communicated, it extends to all cases where the
party applies for professional assistance. 6 Mad. R. 47; 14 Pick., R. 416.
But the privilege does not extend to extraneous or impertinent
communications; 3 John. Cas. 198; nor to information imparted to a
counsellor in the character of a friend, and not as counsel. 1 Caines' R.
157.
5. The cases in which communications to counsel have been holden not to
be privileged may be classed under the following heads: 1. When the
communication was made before the attorney was employed as such; 1 Vent.
197; 2 Atk. 524; 2. after the attorney's employment has ceased 4 T. R. 431;
3. when the attorney was consulted because he was an attorney, yet he
refused to act as such, and was therefore only applied to as a friend; 4 T.
R. 753; 4. where a fact merely took place in the presence of the attorney,
Cowp. 846; 2 Ves. 189; 2 Curt. Eccl. R. 866; but see Str. 1122; 5. when the
matter communicated was not in its nature private, and could in no sense be
termed the subject of a confidential communication; 7 East,, R. 357; 2 B. &
B. 176; 3 John' Cas. 198; 6. when the things disclosed had no reference to
professional employment, though disclosed while the relation of attorney and
client subsisted; Peake's R. 77; 7. when the attorney made himself a
subscribing witness; 10 Mod. 40 2 Curt. Eccl. R. 866; 3 Burr. 1687
8. when he was directed to plead the facts to which he is called to
testify. 7 N. S. 179. See a well written article! on this subject in the
American Jurist, vol. xvii. p. 304. Vide, generally, Stark. Ev. h.t.; 1
Greenl. Ev. Sec. 236-247; 1 Peters' R. 356; 1 Root, 383; Whart. Dig. 275;
Caryls' R. 88, 126, 143; Toth. R. 177; Peake's Cas. 77 2 Stark. Cas. 274; 4
Wash. C. C. R. 718; 11 Wheat. 280; 3 Yeates, R. 4; 4 Munf. R. 273 1 Porter,
R. 433; Wright, R. 136; 13 John. R. 492. As to a confession made to a
catholic priest, see 2 N. Y. City Hall Rec. 77. Vide 2 Ch. Pr. 18-21;
Confessor.

CONFIRMATIO CHARTORUM. The name given to a statute passed during reign of
the English king Edward I. 25 Ed. I., c. 6. See Bac. Ab. Smuggling, B.

CONFIRMATION, contracts, conveyancing. 1. A contract by which that which
was voidable, is made firm and unavoidable.
2. A species of conveyance.
2. - 1. When a contract has been entered into by a stranger without
authority, he in whose name it has been made may, by his own act, confirm
it; or if the contract be made by the party himself in an informal and
voidable manner, he may in a more formal manner confirm and render it valid;
and in that event it will take effect, as between the parties, from the
original making. To make a valid confirmation, the party must be apprised
of, his rights, and where there has been a fraud in the transaction, he must
be award of it, and intend to confirm his contract. Vide 1 Ball & Beatty,
353; 2 Scho. & Lef. 486; 12 Ves. 373; 1 Ves. Jr. 215; Newl. Contr. 496; 1
Atk. 301; 8 Watts. R. 280.
3. - 2. Lord Coke defines a confirmation of an estate, to be "a
conveyance of an estate or right in esse, whereby a voidable estate is made
sure and unavoidable; or where a particular estate is increased."
4. The first part of this definition may be illustrated by the
following case, put by Littleton, Sec. 516; where a person lets land to
another for the term of his life, who lets the same to another for forty
years, by force of which he is in possession; if the lessor for life
confirms the estate of the tenant for years by deed, and afterwards the
tenant for life dies, during the term; this deed will operate as a
confirmation of the term for years.. As to the latter branch of the
definition; whenever a confirmation operates by way of increasing the
estate, it is similar in every respect to a release that operates by way of
enlargement, for there must be privity of estate, and proper words of
limitation. The proper technical words of a confirmation are, ratify and
confirm; although it is usual and prudent to insert also the words given and
granted. Watk. Prin. Convey. chap. vii.
5. A confirmation does not strengthen a void estate. Confirmatio est
nulla, ubi donum precedens est invalidum, et ubi donatio nulla est nec
valebit confirmatio. For confirmation may make a voidable or defeasible
estate good, but cannot operate on an estate void in law. Co. Litt. 295. The
canon law agrees with this rule, and hence the maxim, qui confirmat nihil
dat. Toull. Dr. Civ. Fr. liv. 3, t. 3, c. 6, n. 476. Vide Vin. Ab. h.t.;
Com. Dig. 11. t.; Ayliffe's Pand. *386; 1 Chit. Pr. 315; 3 Gill & John. 290;
3 Yerg. R. 405; Co. Litt. 295; Gilbert on Ten. 75; 1 Breese's R. 236; 9 Co.
142, a; 2 Bouv. Inst. n. 2067-9.
6. An infant is said to confirm his acts performed during infancy,
when, after coming to full age, be expressly approves of them, or does acts
from which such confirmation way be implied. Sec Ratification.

CONFIRMEE. He to whom a confirmation is made.

CONFIRMOR. He who makes a confirmation to another.

CONFISCATION. The act by which the estate, goods or chattels of a person
who has been guilty of some crime, or who is a public enemy, is declared to
be forfeited for the benefit of the public treasury. Domat, Droit Public,
liv. 1, tit. 6, s. 2, n. 1. When property is forfeited as a punishment for
the commission of crime, it is usually called a forfeiture. 1 Bl. Com. 299.
2. It is a general rule that the property of the subjects of an enemy
found in the country may be appropriated by the government, without notice,
unless there be a treaty to the contrary. 1 Gallis. R. 563; 8 Dall. R. 199;
N. Car. Cas. 79. It has been frequently provided by treaty that foreign
subjects should be permitted to remain and continue their business,
notwithstanding a rupture between the governments, so long as they conducted
themselves innocently and when there was no such treaty, such a liberal
permission has been announced in the very declaration of war. Vattel, liv.
3, c. 4, Sec. 63. Sir Michael Poster, (Discourses on High Treason, p. 185,
6, mentions several instances of such declarations by the king of Great
Britain; and he says that aliens were thereby enabled to acquire personal
chattels and to maintain actions for the recovery of their personal rights,
in as full a manner as alien friends. 1 Kent, Coin. 57.
3. In the United States, the broad principle has been assumed "that war
gives to the sovereign full right to take the persons and confiscate the
property of the enemy, wherever found. The mitigations of this rigid rule,
which the policy of modern times has introduced into practice, will more or
less affect the exercise of this right, but cannot impair the right itself."
8 Cranch, 122-3. Commercial nations have always considerable property in the
possession of their neighbors: and when war breaks out the question, what
shall be done with enemies property found in the country, is one rather of
policy than of law, and is properly addressed to the consideration of the
legislature, and not to courts of law. The strict right of confiscation
exists in congress; and without a legislative act authorizing the
confiscation of enemies' property, it cannot be condemned. 8 Cranch, 128,
129. See Chit. Law of Nations, c. 3; Marten's Law of Nat. lib. 8, c. 3, s.
9; Burlamaqui, Princ. of Pol. Law, part 4, c. 7; Vattel, liv. 3, c. 4, Sec.
63.
4. The claim of a right to confiscate debts, contracted by individuals
in time of peace, and which remain due to subjects of the enemy in time of
war, rests very much upon the same principles as that concerning the enemy's
tangible property, found in the country at the commencement of the war. But
it is the universal practice to forbear to seize and confiscate debts and
credits. 1 Kent, Com. 64, 5; vide 4 Cranch, R. 415 Charlt. 140; 2 Harr. &
John. 101, 112, 471 6 Cranch, R. 286; 7 Conn. R. 428: 2 Tayl. R. 115; 1 Day,
R. 4; Kirby, R. 228, 291 C. & N. 77, 492.

CONFLICT. The opposition or difference between two judicial jurisdictions,
when they both claim the right to decide a cause, or where they both declare
their incompetency. The first is called a positive conflict, and the, latter
a negative conflict.

CONFLICT OF JURISDICTION. The contest between two officers, who each claim
to have cognizance of a particular case.

CONFLICT OF LAWS. This phrase is used to signify that the laws of different
countries, on the subject-matter to be decided, are in opposition to each
other; or that certain laws of the same country are contradictory.
2. When this happens to be the case, it becomes necessary to decide
which law is to be obeyed. This subject has occupied the attention and
talents of some of the most learned jurists, and their labors are comprised
in many volumes. A few general rules have been adopted on this subject,
which will here be noticed.
3. - 1. Every nation possesses an exclusive sovereignty and
jurisdiction within its own territory. The laws of every state, therefore,
affect and bind directly all property, whether real or personal, within its
territory; and all persons who are resident within it, whether citizens or
aliens, natives or foreigners; and also all contracts made, and acts done
within it. Vide Lex Loci contractus; Henry, For. Law, part 1, c. 1, 1; Cowp.
It. 208; 2 Hag. C. R. 383. It is proper, however, to observe, that
ambassadors and other public ministers, while in the territory of the state
to, which they are delegates, are exempt from the local jurisdiction. Vide
Ambassador. And the persons composing a foreign army, or fleet, marching
through, or stationed in the territory of another state, with whom the
foreign nation is in amity, are also exempt from the civil and criminal
jurisdiction of the place. Wheat. Intern. Law, part 2, c. 2, Sec. 10;
Casaregis, Disc. 136-174 vide 7 Cranch, R. 116.
4. Possessing exclusive authority, with the above qualification, a
state may regulate the manner and circumstances, under which property,
whether real or personal, in possession or in action, within it shall be
held, transmitted or transferred, by sale, barter, or bequest, or recovered
or enforced; the condition, capacity, and state of all persons within it the
validity of contracts and other acts done there; the resulting rights and
duties growing out of these contracts and acts; and the remedies and modes
of administering justice in all cases. Story, Confl. of Laws, Sec. 18;
Vattel, B. 2, c. 7, Sec. 84, 85; Wheat. Intern. Law, part 1, c. 2, Sec. 5.
5. - 2. A state or nation cannot, by its laws, directly affect or bind
property out of its own territory, or persons not resident therein, whether
they are natural born or naturalized citizens or subjects, or others. This
result flows from the principle that each sovereignty is perfectly
independent. 13 Mass. R. 4. To this general rule there appears to be an
exception, which is this, that a nation has a right to bind its own citizens
or subjects by its own laws in every place; but this exception is not to be
adopted without some qualification. Story, Confl. of Laws, Sec. 21; Wheat.
Intern. Law, part 2, c. 2, Sec. 7.
6. - 3. Whatever force and obligation the laws of one, country have in
another, depends upon the laws and municipal regulations of the latter; that
is to say, upon its own proper jurisprudence and polity, and upon its own
express or tacit consent. Huberus, lib. 1, t. 3, Sec. 2. When a statute, or
the unwritten or common law of the country forbids the recognition of the
foreign law, the latter is of no force whatever. When both are silent, then
the question arises, which of the conflicting laws is to have effect.
Whether the one or the other shall be the rule of decision must necessarily
depend on a variety of circumstances, which cannot be reduced to any certain
rule. No nation will suffer the laws of another to interfere with her own,
to the injury of her own citizens; and whether they do or not, must depend
on the condition of the country in which the law is sought to be enforced,
the particular state of her legislation, her policy, and the character of
her institutions. 2 Mart. Lo. Rep. N. S. 606. In the conflict of laws, it
must often be a matter of doubt which should prevail; and, whenever a doubt
does exist, the court which decides, will prefer the law of its own country
to that of the stranger. 17 Mart. Lo. R. 569, 595, 596. Vide, generally,
Story, Confl. of Laws; Burge, Confl. of Laws; Liverm. on Contr. of Laws;
Foelix, Droit Intern.; Huberus, De Conflictu Leguin; Hertius, de Collisions
Legum; Boullenois, Traits de la personnalite' et de la realite de lois,
coutumes et statuts, par forme d'observations; Boullenois, Dissertations sur
des questions qui naissent de la contrariete des lois, et des coutumes.

CONFRONTATION, crim. law, practice. The act by which a witness is brought in
the presence of the accused, so that the latter may object to him, if he
can, and the former may know and identify the accused, and maintain the
truth in his presence. No man can be a witness unless confronted with the
accused, except by consent.

CONFUSION. The concurrence of two qualities in the same subject, which
mutually destroy each other. Potli. Ob. P. 3, c. 5 3 Bl. Com. 405; Story
Bailm. Sec. 40.

CONFUSION OF GOODS. This takes place where the goods of two or more persons
become mixed together so that they cannot be separated. There is a
difference between confusion and commixtion; in the former it is impossible,
while in the latter it is possible, to make a separation. Bowy. Comm. 88.
2. When the confusion takes place by the mutual consent of the owners,
they have an interest in the mixture in proportion to their respective
shares. 2 Bl. Com. 405; 6 Hill, N. Y. Rep. 425. But if one willfully mixes
his money, corn or hay, with that of another man, without his approbation
or knowledge, the law, to guard against fraud, gives the entire property
without any account, to him whose original dominion is invaded land
endeavored to be rendered uncertain, without his consent. Ib.; and see 2
Johns. Ch. It. 62 2 Kent's Comm. 297.
3. There may be a case neither of consent nor of willfulness, in the
confusion of goods; as where a bailee by negligence or unskillfulness, or
inadvertence, mixes up his own goods of the same sort with those bailed; and
there may be a confusion arising from accident and unavoidable casualty.
Now, in the latter case of accidental intermixture, the rule, following the
civil law, which deemed the property to be held in common, might be adopted;
and it would make no difference whether the mixture produced a thing of the
same sort or not; as, if the wine of two persons were mixed by accident. See
Dane's Abr. ch. 76, art. 5, Sec. 19.
4. But in cases of mixture by unskilfulness, negligence, or
inadvertence, the true principle seems to be, that if a man having
undertaken to keep the property of another distinct from, mixes it with his
own, the whole must, both at law and in equity, be taken to be the property
of the other, until the former puts the subject under such circumstances,
that it may be distinguished as satisfactorily as it might have been before
the unauthorized mixture on his part. 15 Ves. 432, 436, 439, 440; 2 John.
Ch. R. 62; Story on Bailm. c. l, Sec. 40. And see 7 Mass. 11. 123; Dane's
Abr. c. 76, art. 3, Sec. 15; Com. Dig. Pleader, 3 M 28; Bac. Ab. Trespass, E
2; 2 Campb. 576; 2 Roll. 566, 1, 15 2 Bul. 323. 2 Cro. 366, 2 Roll. 393; 5
East, 7; 21 Pick. R. 298.

CONFUSION OF RIGHTS, contracts. When the qualities of debtor and creditor
are united in the same person, there arises a confusion of rights, which
extinguishes the two credits; for instance, when a woman obliges marries the
obligor, the debt is extinguished. 1 Salk. 306; Cro. Car. 551; 1 Ld. Raym.
515; Ca. Ch. 21, 117. There is, however, an excepted case in relation to a
bond given by the husband to the wife; when it is given to the intended wife
for a provision to take effect after his death. 1 Ld. Raym. 515; 5 T. R.
381; Hut. 17 Hob. 216; Cro. Car. 376; 1 Salk. 326 Palm. 99; Carth. 512; Com.
Dig. Baron & Feme, D. A further exception is the case of a divorce. If one
be bound in an obligation to a feme sole and then marry her, and afterwards
they are divorced, she may sue her former husband on the obligation,
notwithstanding, her action was in suspense during the marriage. 26 H. VIII.
1.
2. Where a person possessed of an estate, becomes in a different right
entitled to a charge upon the estate; the charge is in general merged in the
estate, and does not revive in favor of the personal representative against
the heir; there are particular exceptions, as where the person in whom the
interests unite is a minor, and can therefore dispose of the personalty, but
not of the estate; but in the case of a lunatic the merger and confusion was
ruled to have taken place. 2 Ves. jun. 261. See Louis. Code, art. 801 to
808; 2 Ld. R. 527; 3 L. R. 552 4 L. R. 399, 488. Burge on Sur. Book 2, c.
11, p. 253.

CONGE'. A French word which signifies permission, and is understood in that
sense in law. Cunn. Diet. h.t. In the French maritime law, it is a species
of passport or permission to navigate, delivered by public authority. It is
also in the nature of a clearance. (q.v.) Bouch. Inst. n. 812; Repert. de
la Jurisp. du Notoriat, by Rolland de Villargues. Conge'.

CONGEABLE, Eng. law. This word is nearly obsolete. It is derived from the
French conge', permission, leave; it signifies that a thing is lawful or
lawfully done, or done with permission; as entry congeable, and the like.
Litt. s. 279.

CONGREGATION. A society of a number of persons who compose an ecclesiastical
body. In the ecclesiastical law this term is used to designate certain
bureaux at Rome, where ecclesiastical matters are attended to. In the United
States, by congregation is meant the members of a particular church, who
meet in one place worship. See 2 Russ. 120.

CONGRESS. This word has several significations. 1. An assembly of the
deputies convened from different governments, to treat of peace or of other
political affairs, is called a congress.
2. - 2. Congress is the name of the legislative body of the United
States, composed of the senate and house of representatives. Const. U. S.
art. 1, s. 1.
3. Congress is composed of two independent houses. 1. The senate and,
2. The house of representatives.
4.- 1. The senate is composed of two senators from each state, chosen
by the legislature thereof for six years, and each senator has one vote.
They represent the states rather than the people, as each state has its
equal voice and equal weight in the senate, without any regard to the
disparity of population, wealth or dimensions. The senate have been, from
the first formation of the government, divided into three classes; and the
rotation of the classes was originally determined by lots, and the seats of
one class are vacated at the end of the second year, and one-third of the
senate is chosen every second year. Const. U. S. art 1, s. 3. This provision
was borrowed from a similar one in some of the state constitutions, of which
Virginia gave the first example.
5. The qualifications which the constitution requires of a senator,
are, that he should be thirty years of age, have been nine years a citizen
of the United States, and, when elected, be an inhabitant of that state for
which he shall be chosen. Art. 1, s. 3.
6.-2. The house of representatives is composed of members chosen every
second year by the people of the several states, who are qualified electors
of the most numerous branch of the legislature of the state to which they
belong.
7. No person can be a representative until he has attained the age of
twenty-five years, and has been seven years a citizen of the United States,
and is, at the time of his election, an inhabitant of the state in which he
is chosen. Const. U. S. art. 1, Sec. 2.
8. The constitution requires that the representatives and direct taxes
shall be apportioned among the several states, which may be included within
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 Indians not taxed, three-fifths
of all other persons. Art. 1, s. 1.
9. The number of representatives shall not exceed one for every thirty
thousand, but each state shall have at least one representative. Ib.
10. Having shown how congress is constituted, it is proposed here to
consider the privileges and powers of the two houses, both aggregately and
separately.
11. Each house is made the judge of the election, returns, and
qualifications of its own members. Art. 1, s. 5. As each house acts in these
cases in a judicial character, its decisions, like the decisions of any
other court of justice, ought to be regulated by known principles of law,
and strictly adhered to, for the sake of uniformity and certainty. A
majority of each house shall constitute a quorum to do business but a
smaller number may adjourn from day to day, and may be authorized to compel
the attendance of absent members, in such manner, and under such penalties,
as, each may provide. Each house may determine the rules of its proceedings;
punish its members for disorderly behaviour; and, with the concurrence of
two-thirds, expel a member. Each house is bound to keep a journal of its
proceedings, and from time to time, publish the same, excepting such parts
as may, in their judgment, require secrecy; and to enter the yeas and nays
on the journal, on any question, at the desire of one-fifth of the members
present. Art. 1, s. 5.
12. The members of both houses are in all cases, except treason, felony,
and breach of the peace, privileged from arrest during their attendance at
the session of their respective houses, and in going to, and returning from
the same. Art. 1, s. 6.
13. These privileges of the two houses are obviously necessary for their
preservation and character; And, what is still more important to the freedom
of deliberation, no member can be questioned in any other place for any
speech or debate in either house. lb.
14. There is no express power given to either house to punish for
contempts, except when committed by their own members, but they have such an
implied power. 6 Wheat. R. 204. This power, however, extends no further than
imprisonment, and that will continue no farther than the duration of the
power that imprisons. The imprisonment will therefore terminate with the
adjournment or dissolution of congress.
15. The house of representatives has the exclusive right of originating
bills for raising revenue, and this is the only privilege that house enjoys
in its legislative character, which is not shared equally with the other;
and even those bills are amendable by the senate in its discretion. Art. 1,
s. 7.
16. The two houses are an entire and perfect check upon each other, in
all business appertaining to legislation and one of them cannot even
adjourn, during the session of congress, for more than three days, without
the consent of the either nor to any other place than that in which the two
houses shall be sitting. Art. 1, s. 5.
17. The powers of congress extend generally to all subjects of a
national nature. Congress are authorized to provide for the common defence
and general welfare; and for that purpose, among other express grants, they
have the power to lay and collect taxes, duties, imposts and excises; to
borrow money on the credit of the United States; to regulate commerce with
foreign nations, and among the several states, and with the Indians; 1
McLean R. 257; to establish all uniform rule of naturalization, and uniform
laws of bankruptcy throughout the United States; to establish post offices
and post roads; to promote the progress of science and the useful arts, by
securing for a limited time to authors and inventors, the exclusive right to
their respective writings and discoveries; to constitute tribunals inferior
to the supreme court; to define and punish piracies on the high seas, and
offences against the laws of nations; to declare war; to raise and support
armies; to provide and maintain a navy; to provide for the calling forth of
the militia; to exercise exclusive legislation over the District of
Columbia; and to give full efficacy to the powers contained in the
constitution.
18. The rules of proceeding in each house are substantially the same;
the house of representatives choose their own speaker; the vice-president of
the United States is, ex officio, president of the senate, and gives the
casting vote when the members are equally divided. The proceedings and
discussions in the two houses are generally in public.
19. The ordinary mode of passing laws is briefly this; one day's notice
of a motion for leave to bring in a bill, in cases of a general nature, is
required; every bill must have three readings before it is passed, and these
readings must be on different days; and no bill can be committed and amended
until it has been twice read. In the house of representatives, bills, after
being twice read, are committed to a committee of the whole house, when a
chairman is appointed by the speaker to preside over the committee, when the
speaker leaves the chair, and takes a part in the debate as an ordinary
member.
20. When a bill has passed one house, it is transmitted, to tho other,
and goes through a similar form, though in the senate there is less
formality, and bills are often committed to a select committee, chosen by
ballot. If a bill be altered or amended in the house to which it is
transmitted, it is then returned to the house in which it originated, and if
the two houses cannot agree, they appoint a committee to confer on the
subject See Conference.
21. When a bill is engrossed, and has received the sanction of both
houses, it is sent to the president for his approbation. If he approves of
the bill, he signs it. If he does not, it is returned, with his objections,
to the house in which it originated, and that house enters the objections at
large on their journal, and proceeds to re-consider it. If, after such re-
consideration, two-thirds of the house agree to pass the bill, it is sent,
together with the objections, to the other house, by which it is likewise
re-considered, and if approved by two-thirds of that house, it becomes a
law. But in all such cases, the votes of both houses are determined by yeas
and nays; and the names of the persons voting for and against the bill, are
to be entered on the journal of each house respectively.
22. If any bill shall not be returned by the president within ten days
(Sundays excepted) after it shall have been presented to him, the same shall
be a law, in like manner as if he had signed it, unless the congress, by
their adjournment, prevent its return; in which case it shall not be a law.
Art. 1, s. 7. See House of Representatives; President; Senate; Veto; Kent,
Com. Lecture xi.; Rawle on the Const. ch. ix.

CONGRESS, med. juris. This name was anciently given in France, England, and
other countries, to the-indecent intercourse between married persons, in the
presence of witnesses appointed by the courts, in cases when the husband or
wife was charged by the other with impotence. Trebuchet, Jurisp. de Med. 101
Dictionnaire des Sciences Medicales, art. Congres, by Marc.

CONJECTURE. Conjectures are ideas or notions founded on probabilities
without any demonstration of their truth. Mascardus has defined conjecture:
"rationable vestigium latentis veritatis, unde nascitur opinio sapientis;"
or a slight degree of credence arising from evidence too weak or too remote
to produce belief. De Prob. vol. i. quoest. 14, n. 14. See Dict. de Trevoux,
h.v.; Denisart, h.v.

CONJOINTS. Persons married to each other. Story, Confl. of L. Sec. 71;
Wolff. Dr. de la Nat. Sec. 858.

CONJUGAL. Matrimonial; belonging, to marriage as, conjugal rights, or the
rights which belong to the husband or wife as such.

CONJUNCTIVE, contracts, wills, instruments. A term in grammar used to
designate particles which connect one word to another, or one proposition to
another proposition.
2. There are many cases in law, where the conjunctive and is used for
the disjunctive or, and vice versa.
3. An obligation is conjunctive when it contains several things united
by a conjunction to indicate that they are all equally the object of the
matter or contract for example, if I promise for a lawful consideration, to
deliver to you my copy of the Life of Washington, my Encyclopaedia, and my
copy of the History of the United States, I am then bound to deliver all of
them and cannot be discharged by delivering one only. There are, according
to Toullier, tom. vi. n. 686, as many separate obligations Is there are
things to be delivered, and the obligor may discharge himself pro tanto by
delivering either of them, or in case of refusal the tender will be valid.
It is presumed, however, that only one action could be maintained for the
whole. But if the articles in the agreement had not been enumerated; I could
not, according to Toullier, deliver one in discharge of my contract, without
the consent of the creditor; as if, instead of enumerating the, books above
mentioned, I had bound myself to deliver all my books, the very books in
question. Vide Disjunctive, Item, and the case, there cited; and also, Bac.
Ab. Conditions, P; 1 Bos. & Pull. 242; 4 Bing. N. C. 463 S. C. 33 E. C. L.
R. 413; 1 Bouv. Inst. n. 687-8.

CONJURATION. A swearing together. It signifies a plot, bargain, or compact
made by a number of persons under oath, to do some public harm. In times of
ignorance, this word was used to signify the personal conference which some
persons were supposed to have had with the devil, or some evil spirit, to
know any secret, or effect any purpose.

CONNECTICUT. The name of one of the original states of the United States of
America. It was not until the year 1665 that the territory now known as the
state of Connecticut was united under one government. The charter was
granted by Charles II. in April, 1662, but as it included the whole colony
of New Haven, it was not till 1665 that the latter ceased its resistance,
when both the colony of Connecticut and that of New Haven agreed, and then
they were indissolubly united, and have so remained. This charter, with the
exception of a temporary suspension, continued in force till the American
revolution, and afterwards continued as a fundamental law of the state till
the year 1818, when the present constitution was adopted. 1 Story on the
Const. Sec. 86-88.
2. The constitution was adopted on the fifteenth day of September,
1818. The powers of the government are divided into three distinct
departments, and each of them confided to a separate magistracy, to wit:
those which are legislative, to one; those which are executive to another;
and those which are judicial to a third. Art. 2.
3. - 1st. The legislative power is vested in two distinct houses or
branches, the one styled the senate, and the other the house of
representatives, and both together the general assembly. 1. The senate
consists of twelve members, chosen annually by the electors. 2. The house of
representatives consists of electors residing in towns from which they are
elected. The number of representatives is to be the same as at present
practised and allowed; towns which may be hereafter incorporated are to be
entitled to one representative only.
4. - 2d. The executive power is vested in a governor and lieutenant-
governor. 1. The supreme executive power of the state is vested in a
governor, chosen by the electors of the state; he is to hold his office for
one year from the first Wednesday of May, next succeeding his election, and
until his successor be duly qualified. Art. 4, s. 1. The governor possesses
the veto power, art. 4, s. 12. 2. The lieutenant-governor is elected
immediately after the election of governor, in the same manner as is
provided for the election of governor, who continues in office the same
time, and is to possess the same qualifications as the governor. Art. 4, s.
3. The lieutenant-governor, by virtue of his office, is president of the
senate; and in case of the death, resignation, refusal to serve, or removal
from office of the governor, or of his impeachment or absence from the
state, the lieutenant-governor exercises all the powers and authority
appertaining to the office of governor, until another be chosen, at the next
periodical election for governor, and be duly qualified; or until the
governor, impeached or absent, shall be acquitted or return. Art. 4, s. 14.
5. - 3d. The judicial, power of the state is vested in a supreme court
of errors, a superior court, and such inferior courts as the general
assembly may, from time to time, ordain and establish; the powers of which
courts shall be defined. A sufficient number of justices of the peace, with
such jurisdiction, civil and criminal, as the general assembly may
prescribe, are to be appointed in each county. Art. 5.

CONNIVANCE. An agreement or consent, indirectly given, that something
unlawful shall be done by another.
2. The connivance of the husband to his wife's prostitution deprives
him of the right of obtaining a divorce; or of recovering damages from the
seducer. 4 T. R. 657. It may be satisfactorily proved by implication.
3. Connivance differs from condonation, (q.v.) though either may have
the same legal consequences. Connivance necessarily involves criminality on
the part of the individual who connives, condonation may take place without
implying the slightest blame to the party who forgives the injury.
4. Connivance must be the act of the mind before the offence has been
committed; condonation is the result of a determination to forgive an injury
which was not known until after it was inflicted. 3 Hagg. Eccl. R. 350.
5. Connivance differs, also, from collusion (q. Y.); the former is
generally collusion. for a particular purpose, while the latter may exist
without connivance. 3 Hagg, Eccl. R. 130. Vide Shelf. on Mar. & Div. 449; 3
Hagg. R. 82; 2 Hagg. R. 376; Id. 278; 3 Hagg. R. 58, 107, 119, 131, 312; 3
Pick. R. 299; 2 Caines, 219; Anth. N.P. 196.

CONQUEST, feudal law. This term was used by the feudists to signify
purchase.

CONQUEST, international law. The acquisition of the sovereignty of a country
by force of arms, exercised by an independent power which reduces the
vanquished to the submission of its empire.
2. It is a general rule, that where conquered countries have laws of
their own, these laws remain in force after the conquest, until they are
abrogated, unless they are contrary to our religion, or enact any malum in
se. In all such cases the laws of the conquering country prevail; for it is
not to be presumed that laws opposed to religion or sound morals could be
sanctioned. 1 Story, Const. Sec. 150, and the cases there cited.
3. The conquest and military occupation of a part of the territory of
the United States by a public enemy, renders such conquered territory,
during such occupation, a foreign country with respect to the revenue laws
of the United States. 4 Wheat. R. 246; 2 Gallis. R. 486. The people of a
conquered territory change their allegiance, but, by the modern practice,
their relations to each other, and their rights of property, remain the
same. 7 Pet. R. 86.
4. Conquest does not, per se, give the conqueror plenum dominium et
utile, but a temporary right of possession and government. 2 Gallis. R. 486;
3 Wash. C. C. R. 101. See 8 Wheat. R. 591; 2 Bay, R. 229; 2 Dall. R. 1; 12
Pet. 410.
5. The right which the English government claimed over the territory
now composing the United States, was not founded on conquest, but discovery.
Id. Sec. 152, et seq.

CONQUETS, French law. The name given to every acquisition which the husband
and wife, jointly or severally, make during the conjugal community. Thus,
whatever is acquired by the husband and wife, either by his or her industry
or good fortune, enures to the extent of one-half for the benefit of the
other. Merl. Rep. mot Conquet; Merl. Quest. mot Conquet. In Louisiana, these
gains are called aquets. (q.v.) Civ. Code of Lo. art. 2369.

CONSANGUINITY. The relation subsisting among all the different persons
descending from the same stock, or common ancestor. Vaughan, 322, 329; 2 Bl.
Com. 202 Toull. Dr. Civ.. Fr. liv. 3, t. 1, ch. n 115 2 Bouv. Inst. n. 1955,
et seq.
2. Some portion of the blood of the common ancestor flows through the
veins of all his descendants, and though mixed with the blood flowing from
many other families, yet it constitutes the kindred or alliance by blood
between any two of the individuals. This relation by blood is of two kinds,
lineal and collateral.
3. Lineal consanguinity is that relation which exists among persons,
where one is descended from the other, as between the son and the father, or
the grandfather, and so upwards in a direct ascending line; and between the
father and the son, or the grandson, and so downwards in a direct descending
line. Every generation in this direct course males a degree, computing
either in the ascending or descending line. This being the natural mode of
computing the degrees of lineal, consanguinity, it has been adopted by the
civil, the canon, and the common law.
4. Collateral consanguinity is the relation subsisting among persons
who descend from the same common ancestor, but not from each other. It is
essential to constitute this relation, that they spring from the same common
root or stock, but in different branches. The mode of computing the degrees
is to discover the common ancestor, to begin with him to reckon downwards,
and the degree the two persons, or the more remote of them, is distant from
the ancestor, is the degree of kindred subsisting between them. For
instance, two brothers are related to each other in the first degree,
because from the father to each of them is one degree. An uncle and a nephew
are related to each other in tho second degree, because the nephew is two
degrees distant from the common ancestor, and the rule of computation is
extended to the remotest degrees of collateral relationship. This is the
mode of computation by the common and canon law. The method of computing by
the civil law, is to begin at either of the persons in question and count up
to the common ancestor, and then downwards to the, other person, calling it
a degree for each person, both ascending and descending, and the degrees
they stand from each other is the degree in which they stand related. Thus,
from a nephew to his father, is one degree; to the grandfather, two degrees
and then to the uncle, three; which points out the relationship.
5. The following table, in which the Roman numeral letters express the
degrees by the civil law, and those in Arabic figures at the bottom, those
by the common law, will fully illustrate the subject.

ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿
³ IV. ³
³Great grand-father's³
³ father ³
³ 4 ³
ÀÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙ\
³ \
ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿ÄÄÄ¿ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿
³ III. ³ ³ V. ³
³ Great grand-father ³ ³Great grand-uncle³
³ 3. ³ ³ ³
ÀÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙÄÄÄÙÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙ
³ \
ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿ÄÄÄ¿ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿
³ II. ³ ³ IV. ³
³ Grand father ³ ³ Great uncle. ³
³ 2. ³ ³ 3 ³
ÀÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙÄÄÄÙÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙ
³ \ \
ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿ÄÄÄ¿ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿ÄÄÄ¿ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿
³ I. ³ ³ III. ³ ³ V. ³
³ ³
³ Father ³ ³ Uncle. ³ ³Great Uncle's son³
³ 1. ³ ³ 2. ³ ³ 3. ³
ÀÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙÄÄÄÙÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙÄÄÄÙÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙ
³ \ \ \
ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿ÄÄÄ¿ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿ÄÄÄÄ¿ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿ÄÄÄÄ¿ÄÄÄÄÄÄÄÄÄÄÄÄ¿
³ ³ ³ II. ³ ³ IV. ³ ³ VI. ³
³Intestate person ³ ³ Brother ³ ³ Cousin german ³ ³ 2nd. Cousin³
³ proposed. ³ ³ 1 ³ ³ 2 ³ ³ 3 ³
ÀÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙÄÄÄÙÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙÄÄÄÄÙÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙÄÄÄÄÙÄÄÄÄÄÄÄÄÄÄÄÄÙ
³ \
ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿ÄÄÄÄ¿ÄÄÄÄÄÄÄÄÄÄÄÄÄ¿
³ I. ³ ³ III. ³ ³ V. ³
³ Son. ³ ³ Nephew ³ ³Son of Cousin³
³ 1. ³ ³ 2 ³ ³ german 3 ³
ÀÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙ ÀÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙÄÄÄÄÙÄÄÄÄÄÄÄÄÄÄÄÄÄÙ
³ \
ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿ ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿
³ II. ³ ³ IV. ³
³ Grandson. ³ ³Son of Nephew or ³
³ 2. ³ ³brother's grandson³
ÀÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙ ³ 3 ³
³ ÀÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙ
ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿
³ III. ³
³ Great grandson. ³
³ 3. ³
ÀÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙ

6. The mode of the civil law is preferable, for it points out the
actual degree of kindred in all cases; by the mode adopted by the common
law, different relations may stand in the same degree. The uncle and nephew
stand related in the second degree by the common law, and so are two first
cousins, or two sons of two brothers; but by the civil law the uncle and
nephew are in the third degree, and the cousins are in the fourth. The mode
of computation, however, is immaterial, for both will establish the same
person to be the heir. 2 Bl. Com. 202; 1 Swift's Dig. 113; Toull. Civ. Fr.
liv. 8, t. 1, o. 3, n. 115. Vide Branch; Degree; Line.

CONSCIENCE. The moral sense, or that capacity of our mental constitution, by
which we irresistibly feel the difference between right and wrong.
2. The constitution of the United States wisely provides that "no
religious test shall ever be required." No man, then, or body of men, have a
right to control a man's belief or opinion in religious matters, or to
forbid the most perfect freedom of inquiry in relation to them, by force or
threats, or by any other motives than arguments or persuasion. Vide Story,
Const. Sec. 1841-1843.

CONSENSUAL, civil law. This word is applied to designate one species of
contract known in the civil laws; these contracts derive their name from the
consent of the parties which is required in their formation, as they cannot
exist without such consent.
2. The contract of sale, among the civilians, is an example of a
consensual contract, because the moment there is an agreement between the
seller and the buyer as to the thing and the price, the vendor and the
purchaser have reciprocal actions On the contrary, on a loan, there is no
action by the lender or borrower, although there may have been consent,
until the thing is delivered or the money counted. This is a real contract
in the sense of the civil law. Lec. El. Dr: Rom. Sec. 895; Poth. Ob. pt. 1,
c. 1, s. 1, art. 2; 1 Bell's Com. (5th ed.) 435. Vide Contract.

CONSENT. An agreement to something proposed, and differs from assent. (q.v.)
Wolff, Ins. Nat. part 1, SSSS 27-30; Pard. Dr. Com. part 2, tit. 1, n.
1, 38 to 178. Consent supposes, 1. a physical power to act; 2. a moral power
of acting; 3. a serious, determined, and free use of these powers. Fonb. Eq.
B; 1, c. 2, s. 1; Grot. de Jure Belli et Pacis, lib. 2, c. 11, s. 6.
2. Consent is either express or implied. Express, when it is given viva
voce, or in writing; implied, when it is manifested by signs, actions, or
facts, or by inaction or silence, which raise a presumption that the consent
has been given.
3. - 1. When a legacy is given with a condition annexed to the bequest,
requiring the consent of executors to the marriage of the legatee, and under
such consent being given, a mutual attachment has been suffered to grow up,
it would be rather late to state terms and conditions on which a marriage
between the parties should take place;. 2 Ves. & Beames, 234; Ambl. 264; 2
Freem. 201; unless such consent was obtained by deceit or fraud. 1 Eden, 6;
1 Phillim. 200; 12 Ves. 19.
4. - 2. Such a condition does not apply to a second marriage. 3 Bro. C.
C. 145; 3 Ves. 239.
5. - 3. If the consent has been substantially given, though not modo et
forma, the legatee will be held duly entitled to the legacy. 1 Sim. & Stu.
172; 1 Meriv. 187; 2 Atk. 265.
6. - 4. When trustees under a marriage settlement are empowered to sell
"with the consent of the husband and, wife," a sale made by the trustees
without the distinct consent of the wife, cannot be a due execution of their
power. 10 Ves. 378.
7. - 5. Where a power of sale requires that the sale should be with the
consent of certain specified individuals, the fact of such consent having
been given, ought to be evinced in the manner pointed out by the creator of
the power, or such power will not be considered as properly executed. 10
Ves. 308. Vide, generally, 2 Supp. to Ves. jr. 161, 165, 169; Ayliffe's
Pand. 117; 1 Rob. Leg.. 345, 539.
8. - 6. Courts of equity have established the rule, that when the true
owner of property stands by, and knowingly suffers a stranger to sell the
same as his own, without objection, this will be such implied consent as to
render the sale valid against the true owner. Story on Ag. Sec. 91 Story on
Eq. Jur. Sec. 385 to 390. And courts of law, unless restrained by technical
formalities, act upon the principles of justice; as, for example, when a man
permitted, without objection, the sale of his goods under an execution
against another person. 6 Adolph. & El 11. 469 9 Barn. & Cr. 586; 3 Barn. &
Adolph. 318, note.
9. The consent which is implied in every agreement is excluded, 1. By
error in the essentials of the contract; ,is, if Paul, in the city of
Philadelphia, buy the horse of Peter, which is in Boston, and promise to pay
one hundred dollars for him, the horse at the time of the sale, unknown to
either party, being dead. This decision is founded on the rule that he who
consents through error does not consent at all; non consentiunt qui errant.
Dig. 2, 1, 15; Dig. lib. 1, tit. ult. 1. 116, Sec. 2. 2. Consent is excluded
by duress of the party making the agreement. 3. Consent is never given so as
to bind the parties, when it is obtained by fraud. 4. It cannot be given by
a person who has no understanding, as an idiot, nor by one who, though
possessed of understanding, is not in law capable of making a contract, as a
feme covert. See Bouv. Inst. Index, h.t.

CONSENT RULE. In the English practice, still adhered to in some of the
states of the American Union, the defendant in ejectment is required to
enter on record that he confesses the lease, entry, and ouster of the
plaintiff; this is called the consent rule.
2. The consent rule contains the following particulars, namely: 1. The
person appearing consents to be made defendant instead of the casual
ejector; 2. To appear at the suit of the plaintiff; and, if the proceedings
are by bill, to file common bail; 3. To receive a declaration in ejectment,
and plead not guilty; 4. At the trial of the case to confess lease, entry,
and ouster, and insist upon his title only; 5. That if at the trial, the
party appearing shall not confess lease, entry, and ouster, whereby the
plaintiff shall not be able to prosecute his suit, such party shall pay to
the plaintiff the costs of the @nonpros, and suffer judgment to be entered
against the casual ejector; 6. That if a verdict shall be given for the
defendant, or the plaintiff shall not prosecute his suit for any other cause
than the non-confession of lease, entry, and ouster, the lessor of the
plaintiff shall pay costs to the defendant; 7. When the landlord appears
alone, that the plaintiff shall be at liberty to sign judgment immediately
against the casual ejector, but that execution shall be stayed until the
court shall further order. Adams, Ej. 233, 234 and for a form see Ad. Ej.
Appx. No. 25. Vide 2 Cowen, 442; 4 John. R. 311; Caines' Cas. 102; 12 Wend.
105, 3 Cowen, 356; 6 Cowen, 587; 1 Cowen, 166; and Casual Ejector;
Ejectment.

CONSEQUENTIAL DAMAGES, torts. Those damages or those losses which arise not
from the immediate act of the party, but in consequence of such act; as if a
man throw a log into the public streets, and another fall upon it and become
injured by the fall or if a man should erect a dam over his own ground, and
by that means overflow his neighbor's, to his injury.
2. The form of action to be instituted for consequential damages caused
without force, is by action on the case. 3 East, 602; 1 Stran. 636; 5 T. R.
649; 5 Vin. Ab. 403; 1 Chit. Pl. 127 Kames on Eq. 71; 3 Bouv. Inst. n. 3484,
et seq. Vide Immediate.

CONSERVATOR. A preserver, a protector.
2. Before the institution of the office of justices of the peace in
England, the public order was maintained by officers who bore the name of
conservators of the peace. All judges, justices, sheriffs and constables,
are conservators of the peace, and are bound, ex officio, to be aiding and
assisting in preserving older.
3. In Connecticut, this term is applied to designate a guardian who has
the care of the estate of an idiot. 5 Conn. R. 280.

CONSIDERATIO CURLAE, practice. The judgment of the court. In pleadings where
matters are determined by the court, it is said, therefore it is considered
and adjudged by the court ideo consideratum est per curiam.

CONSIDERATION, contracts. A compensation which is paid, or all inconvenience
suffered by the, party from whom it proceeds. Or it is the reason which
moves the contracting party to enter into the contract. 2 Bl. Com. 443.
Viner defines it to be a cause or occasion meritorious, requiring a mutual
recompense in deed or in law. Abr. tit. Consideration, A. A consideration of
some sort or other, is so absolutely necessary to the forming a good
contract, that a nudum pactum, or an agreement to do or to pay any thing on
one side, without any compensation to the other, is totally void in law, and
a man cannot be compelled to perform it. Dr. & Stud. d. 2, c. 24 3 Call, R.
439 7 Conn. 57; 1 Stew. R. 51 5 Mass. 301 4 John. R. 235; C. Yerg. 418;
Cooke, R. 467; 6 Halst. R. 174; 4 Munf. R. 95. But contracts under seal are
valid without a consideration; or, perhaps, more properly speaking, every
bond imports in itself a sufficient consideration, though none be mentioned.
11 Serg. & R. 107. Negotiable instruments, as bills of exchange and
promissory notes, carry with them prima facie evidence of consideration. 2
Bl. Com. 445.
3. The consideration must be some benefit to the party by whom the
promise is made, or to a third person at his instance; or some detriment
sustained at the instance of the party promising, by the party in whose
favor the promise is made. 4 East, 455;1 Taunt. 523 Chitty on Contr. 7 Dr.
& Stu. 179; 1 Selw. N. P. 39, 40; 2 pet. 182 1 Litt. 123; 3 John. 100; 6
Mass. 58 2 Bibb. 30; 2 J. J. Marsh. 222; 5 Cranch, 142, 150 2 N. H. Rep. 97
Wright, It. 660; 14 John. R. 466 13 S. & R. 29 3 M. Gr. & Sc. 321.
4. Considerations are good, as when they are for natural love and
affection; or valuable, when some benefit arises to the party to whom they
are made, or inconvenience to the party making them. Vin. Abr.
Consideration, B; 5 How. U. S. 278; 4 Barr, 364; 3 McLean, 330; 17 Conn.
511; 1 Branch, 301; 8 Ala. 949.
5. They are legal, which are sufficient to support the contract or
illegal, which render it void. As to illegal considerations, see 1 Hov.
Supp. to Ves. jr. 295; 2 Hov. Supp. to Ves. jr. 448; 2 Burr. 924 1 Bl. Rep.
204. If the, performance be utterly impossible, in fact or in law, the
consideration is void. 2 Lev. 161; Yelv. 197, and note; 3 Bos. & Pull. 296,
n. 14 Johns. R. 381.
6. A mere moral obligation to pay a debt or perform a duty, is a
sufficient consideration for an express promise, although no legal liability
existed at the time of making such promise. Cowp. 290 Bl. Com. 445 3 Bos. &
Pull. 249, note; 2 East, 506; 3 Taunt. 311; 5 Taunt. 36; 13 Johns. R. 259;
Yelv. 41, b, note; 3 Pick. 207. But it is to be observed, that in such cases
there must have been a good or valuable consideration; for example, every
one is under a moral obligation to relieve a person in distress, a promise
to do so, however, is not binding in law. One is bound to pay a debt which
he owes, although he has been released; a promise to pay such a debt is
obligatory in law on the debtor, and can therefore be enforced by action. 12
S. & R. 177; 19 John. R. 147; 4 W. C. C. R. 86, 148; 7 John. R. 26; 14 John.
R. 178; 1 Cowen, R. 249; 8 Mass. R. 127. See 7 Conn. R. 57; 1 Verm. R. 420;
5 Verm. R. 173; 5. Ham. R. 58; 3 Penna. R. 172; 5 Binn. R. 33.
7. In respect of time, a consideration is either, 1st. Executed, or
Something done before the making of the obligor's promise. Yelv. 41, a. n.
In general, an executed consideration is insufficient to support a contract;
7 John. R. 87; 2 Conn. R. 404; 7 Cowen, R. 358; but an executed
consideration on request; 7 John. R. 87 1 Caines R. 584; or by some previous
duty, or if the debt be continuing at the time, or it is barred by some rule
of law, or some provision of a statute, as the act of limitation, it is
sufficient to maintain an action. 4 W. C. C. R. 148 14 John. R. 378 17 S. &
R. 126. 2d. Executory, or something to be done after such promise. 3d.
Concurrent, as in the case of mutual promises; and, 4th. A continuing
consideration. Chitty on Contr. 16.
8. As to cases where the contract has been set aside on the ground of a
total failure of the consideration, see 11 Johns. R. 50; 7 Mass. 14; 8
Johns. R. 458; 8 Mass. 46 6 Cranch, 53; 2 Caines' Rep. 246 and 1 Camp. 40,
n. When the consideration turns out to be false and fails, there is no
contract; as, for example, if my father by his will gives me all his estate,
charged with the payment of a thousand dollars, and I promise to give you my
house instead of the legacy to you, and you agree to buy it with the legacy,
and before the contract is completed, and I make you a deed for the house, I
discover that my father made a codicil to his will and by it be revoked the
gift to you' I am not bound to complete the contract by making you a deed
for my house. Poth. on Oblig. part 1, c. 1, art. 3, Sec. 6. See, in general,
Obligation,, New Promise; Bouv. Inst. Index. b. t,; Evans' Poth. vol. ii. p.
19; 1 Fonb. Eq. 335; Newl. Contr. 65; 1 Com. Contr. 26; Fell on Guarrant.
337; 3 Chit. Com. Law, 63 to 99; 3 Bos. & Pull. 249, n; 1 Fonb. Eq. 122,
note z; Id. 370, note g; 5 East, 20, n.; 2 Saund. 211, note 2; Lawes Pl.
Ass. 49; 1 Com. Dig. Action upon the case upon Assumpsit, B Vin. Abr.
Actions of Assumpsit, Q; Id. tit. Consideration.

CONSIDERATUM EST per curiam. It is considered by the court. This formula is
used in giving judgments. A judgment is the decision or sentence of the law,
given by a court of justice, as the result of proceedings instituted
therein, for the redress of an injury. The language of the judgment is not,
therefore, that "it is decreed," or "resolved," by the court; but that "it
is considered by the court," consideratum est per curiam, that the plaintiff
recover his debt, &c. 3 Bouv. Inst. n. 3298.

CONSIGNATION, contracts. In the civil law, it is a deposit which a debtor
makes of the thing that he owes, into the hands of a third person, and under
the authority of a court of justice. Poth. Oblig. P. 3, c. 1, art. 8.
2. Generally the consignation is made with a public officer it is very
similar to our practice of paying money into court.
3. The term to consign, or consignation, is derived from the Latin
consignare, which signifies to seal, for it was formerly the practice to
seal up the money thus received in a bag or box. Aso & Man. Inst. B. 2, t.
11, c. 1, Sec. 5. See Burge on Sur. 138.

CONSIGNEE, contracts. One to whom a consignment is made.
2. When the goods consigned to him are his own, and they have been
ordered to be sent, they are at his risk the moment the consignment is made
according to his direction; and the persons employed in the transmission of
the goods are his agents. 1 Liverm. on Ag, 9. When the goods are not his
own, if he accept the consignment, he is bound to pursue the instructions of
the consignor; as if the goods be consigned upon condition that the
consignee will accept the consignor's bills, he is bound to accept them; Id.
139; or if he is directed to insure, he must do so. Id. 325.
3. It is usual in bills of lading to state that the goods are to be
delivered to the consignee or his assigns, he or they paying freight; in
such case the consignee or his assigns, by accepting the goods, by
implication, become bound to pay the freight, Abbott on Sh. p. 3, c. 7, Sec.
4; 3 Bing. R, 383.
4. When a person acts, publicly as a consignee, there is an implied
engagement on his part that he will be vigilant in receiving goods consigned
to his care, so as to make him responsible for any loss which the owner may
sustain in consequence of his neglect. 9 Watts & Serg. 62.

CONSIGNMENT. The goods or property sent by a common carrier from one or
more persons called the consignors, from one place, to one or more persons,
called the consignees, who are in another. By this term is also understood
the goods sent by one person to another, to be sold or disposed of by the
latter for and on account of the former.

CONSIGNOR, contracts. One who makes a consignment to another.
2. When goods are consigned to be sold on commission, and the property
remains in the consignor; or when goods have been consigned upon a credit,
and the consignee has become a bankrupt or failed, the consignor has a right
to stop them in transitu. (q.v.) Abbot on Sh. p. 3, c.
3. The consignor is generally liable for the freight or the hire for
the carriage of goods. 1 T. R. 659.

CONSILIUM, or dies consilii, practice. A time allowed for the accused to
make his defence, and now more commonly used for a day appointed to argue a
demurrer. In civil cases, it is a special day appointed for the purpose of
hearing an argument. Jer. Eq. Jur. 296; 4 Bouv. Inst. n. 3753.

CONSIMILI CASU. These words occur in the Stat. West. 21 C. 24, 13 Ed. 1.
which gave authority to the clerks in chancery to form new writs in
consimili casu simili remedio indigente sicut prius fit breve. In execution
of the powers granted by this statute, many new writs were formed by the
clerk's in chancery, especially in real actions, as writs of quod permittat
prosternere, against the alienee of land after the erection of a nuisance
thereon, according to the analogy of the assize of nuisance, writs of juris
utrum, c. &c. In respect to personal actions, it has, long been the practice
to issue writs in consimili casu, in the most general form, e. g. in
trespass on the case upon promises, leaving it to the plaintiff to state
fully, and at large, his case in the declaration the sufficiency of which in
point of law is always a question for the court to consider upon the
pleadings and evidence. See Willes, Rep. 580; 2 Lord Ray. 957; 2 Durnf. &
East, 51; 2 Wils. 146 17 Serg. & R.. 195; 3 Bl. Com. 51 7 Co. 4; F. N. B.
206; 3 Bouv. Inst. n. 3482.

CONSISTENT. That which agrees with something else; as a consistent
condition, which is one which agrees with all other parts of a contract, or
which can be reconciled with every other part. 1 Bouv. Just. n. 752,

CONSISTORY, ecclesiastical law. An assembly of cardinals convoked by the
pope. The consistory is public or secret. It is public, when the pope
receives princes or gives audience to ambassadors; secret, when he fills
vacant sees, proceeds to the canonization of saints, or judges and settles
certain contestations submitted to him.
2. A court which was formerly held among protestants, in which the
bishop presided, assisted by some of his clergy, also bears this name. It is
now held in England, by the bishop's chancellor or commissary, and some
other ecclesiastical officers, either in the cathedral, church, or other
place in his diocese, for the determination of ecclesiastical cases arising
in that diocese. Merl. Rep. h.t.; Burns' Dict. h.t.

CONSOLATO DEL MARE, (IL). The name of a code of sea laws compiled by order
of the ancient kings of Aragon. Its date is not very certain, but it was
adopted on the continent of Europe, as the code of maritime law, in the
course of the eleventh, twelfth, and thirteenth centuries. It comprised the
ancient ordinances of the Greek and Roman emperors, and of the kings of
France and Spain; and the laws of the Mediterranean islands, and of Venice
and Genoa. It was originally written in the dialect of Catalonia, as its
title plainly indicates, and it has been translated into every language of
Europe. This code has been reprinted in the second volume of the "Collection
de Lois Maritimes Anterieures au XVIII. Siecle, par J. M. Pardessus, (Paris,
1831)." A collection of sea laws, which is very complete.

CONSOLIDATION, civil law. The union of the usufruct with the estate out of
which it issues, in the same person which happens when the usufructuary
acquires the estate, or vice versa. In either case the usufruct is extinct.
In the common law this is called a merger. Ley. El. Dr. Rom. 424. U. S. Dig.
tit. Actions, V.
2. Consolidation may take place in two ways: first, by the usufructuary
surrendering his right to the proprietor, which in the common law is called
a surrender; secondly, by the release of the. proprietor of his rights to
the usufructuary, which in our law is called a release.

CONSOLIDATION RULE, practice, com. law. When a number of actions are brought
on the same policy, it is the constant practice, for the purpose of saving
costs, to consolidate them. by a rule of court or judge's order, which
restrains the plaintiff from proceeding to trial in more than one, and binds
the defendants in all the others to abide the event of that one; but this is
done upon condition that the defendant shall not file any bill inequity, or
bring any writ of error for delay. 2 Marsh. Ins. 701. For the history of
this rule, vide Parke on Ins. xlix.; Marsh. Ins. B. 1, c. 1 6, s. 4. And see
1 John. Cas. 29; 19 Wend. 23; 13 Wend. 644 5 Cowen, 282,; 4 Cowen, 78; Id.
85; 1 John. 29; 9 John. 262.
2. The term consolidation seems to be rather misapplied in those cases,
for in point of fact there is a mere stay of proceedings in all those cases
but one. 3 Chit. Pr. 644. The rule is now extended to other cases: when
several actions are brought on the same bond against several obligors, an
order for a stay of proceedings in all but one will be made. 3 Chit. Pr. 645
3 Carr. & P. 58. See 4 Yeates, R. 128 3 S. & R. 262; Coleman, 62; 3 Rand.
481; 1 N. & M. 417, n.; 1 Cow n 89; 3 Wend. 441; 9 Wend. 451; M. 438, 440,
n.; 5 Cowen, 282; 4 Halst. 335; 1 Dall. 145; 1 Browne, Appx. lxvii.; 1 Ala.
R. 77; 4 Hill, R. 46; 19 Wend. 23 5 Yerg. 297; 7 Miss. 477; 2 Tayl. 200.,
3. The plaintiff may elect to join in the same suit several causes of
action, in many cases, consistently with the rules of pleading, but having
done so, his election is determined. He cannot ask the court to consolidate
them; 3 Serg. & R. 266; but the court will sometimes, at the instance of the
defendant, order it against the plaintiff. 1 Dall. Rep. 147, 355; 1 Yeates,
5; 4 Yeates, 128; 2 Arch. Pr. 180; 3 Serg. & R. 264.

CONSOLS, Eng. law. This is an abbreviation for consolidated annuities.
Formerly when a loan was made, authorized by government, a particular part
of the revenue was appropriated for the payment of the interest and of the
principal. This was called the fund, and every loan had its fund. In this
manner the Aggregate fund originated in 1715; the South Sea fund, in 1717;
the General fund, 1617 and the Sinking fund, into which the surplus of these
three funds flowed, which, although destined for the diminution of the
national debt, was applied to the necessities of the government. These four
funds were consolidated into one in the year 1787, under the name of
consolidated fund.
2. The income arises from the receipts on account of excise, customs,
stamps, and other, perpetual taxes. The charges on it are the interest on
and the redemption of the public debt; the civil list; the salaries of the
judges and officers of state, and the like.
3. The annual grants on account of the army and navy, and every part of
the revenue which is considered temporary, are excluded from this fund.
4. Those persons who lent the money to the government, or their
assigns, are entitled to an annuity of three per cent on the amount lent,
which, however, is not to be returned, except at the option of the
government so that the holders of consols are simply annuitants.

CONSORT. A man or woman married. The man is the consort of his wife, the
woman is the consort of her husband.

CONSPIRACY, crim. law, torts. An agreement between two or more persons to do
an unlawful act, or an act which may become by the combination injurious to
others. Formerly this offence was much more circumscribed in its meaning
than it is now. Lord Coke describes it as "a consultation or agreement
between two or more to appeal or indict an innocent person falsely and
maliciously, whom accordingly they cause to be indicted or appealed and
afterwards the party is acquitted by the verdict of twelve men."
2. The crime of conspiracy, according to its modern interpretation, may
be of two kinds, Damely, conspiracies against the public, or such as
endanger the public health, violate public morals, insult public justice,
destroy the public peace, or affect public trade or business. See 3 Burr.
1321.
3. To remedy these evils the guilty persons may be indicted in the name
of the commonwealth. Conspiracies against individuals are such as have a
tendency to injure them in their persons, reputation, or property. The
remedy in these cases is either by indictment or by a civil action.
4. In order to reader the offence complete, there is no occasion that
any act should be done in pursuance of the unlawful agreement entered into
between the parties, or that any one should have been defrauded or injured
by it. The conspiracy is the gist of the crane. 2 Mass. R. 337; Id. 538 6
Mass. R. 74; 3 S. & R. 220 4 Wend. R. 259; Halst. R. 293 2 Stew. Rep. 360; 5
Harr. & John. 317 8 S. & R. 420. But see 10 Verm. 353.
5. By the laws of the United State's, St. 1825, c. 76, Sec. 23, 3
Story's L. U. S., 2006, a willful and corrupt conspiracy to cast away, burn
or otherwise destroy any ship or vessel. with intent to injure any
underwriter thereon, or the goods on board thereof, or any lender of money
on such vessel, on bottomry or respondentia, is, by the laws of the United
States, made felony, and the offender punishable by fine not exceeding ten
thousand dollars, and by imprisonment and confinement at hard labor, not
exceeding ten years.
6. By the Revised Statutes of New York, vol. 2, p. 691, 692, it is
enacted, that if any two or more persons shall conspire, either, 1. To
commit any offence; or, 2. Falsely and maliciously to indict another for any
offence; or, 3. Falsely to move or maintain any suit; or, 4. To cheat and
defraud any person of any property, by any means which are in themselves
criminal; or, 5. To cheat and defraud any person of any property, by means
which, if executed, would amount to a cheat, or to obtaining property by
false pretences; or, 6. To commit any act injurious to the public health, to
public morals, or to trade and commerce, or for the perversion or
obstruction of justice, or the due administration of the laws; they shall be
deemed guilty of a misdemeanor. No other conspiracies are there punishable
criminally. And no agreement, except to commit a felony upon the person of
another, or to commit arson or burglary, shall be deemed a conspiracy,
unless some act besides such agreement be done to effect the object thereof,
by one or more of the parties to such agreement.
7. When a felony has been committed in pursuance of a conspiracy, the
latter, which is only a misdemeanor, is merged in the former; but when a
misdemeanor only has been committed in pursuance of such conspiracy, the two
crimes being of equal degree, there can be no legal technical merger. 4
Wend. R. 265. Vide 1 Hawk. 444 to 454; 3 Chit. Cr. Law, 1138 to 1193 3 Inst.
143 Com. Dig. Justices of the Peace, B 107; Burn's Justice, Conspiracy;
Williams' Justice, Conspiracy; 4 Chit. Blacks. 92; Dick. Justice Conspiracy,
Bac. Ab. Actions on the Case, G 2 Russ. on Cr. 553 to 574 2 Mass. 329 Id.
536 5 Mass. 106 2 D R. 205; Whart. Dig. Conspiracy; 3 Serg. & Rawle, 220; 7
Serg. & Rawle, 469 4 Halst. R. 293; 5 Harr. & Johns. 317 4 Wend. 229; 2
Stew. R. 360;1 Saund. 230, u. 4. For the French law, see Merl. Rep. mot
Conspiration Code Penal, art. 89.

CONSPIRATORS. Persons guilty of a conspiracy. See 3 Bl. Com. 126-71 Wils.
Rep. 210-11. See Conspiracy.

CONSTABLE. An officer, who is generally elected by the people.
2. He possess power, virture officii, as a conservator of the peace at
common law, and by virtue of various legislative enactments; he. way
therefore apprehend a supposed offender without a warrant, as treason,
felony, breach of the peace, and for some misdemeanors less than felony,
when committed in his view. 1 Hale, 587; 1 East, P. C. 303 8 Serg. & Rawle,
47. He may also arrest a supposed offender upon the information of others
but he does so at his peril, unless he can show that a felony has been
committed by some person, as well as the reasonableness of the suspicion
that the party arrested is guilty. 1 Chit. Cr. L. 27; 6 Binn. R. 316; 2
Hale, 91, 92 1 East, P. C. 301. He has power to call others to his
assistance; or he may appoint a deputy to do ministerial acts. 3 Burr. Rep.
1262.
3. A constable is also a ministerial officer, bound to obey the
warrants and precepts of justices, coroners, and sheriffs. Constables are
also in some states bound to execute the warrants and process of justices of
the peace in civil cases.
4. In England, they have many officers, with more or less power, who
bear the name of constables; as, lord high constable of England, high
constable 3 Burr. 1262 head constables, petty constables, constables of
castles, constables of the tower, constables of the fees, constable of the
exchequer, constable of the staple, &c.
5. In some of the cities of the United States there are officers who
are called high constables, who are the principal police officers where they
reside. Vide the various Digests of American Law, h.t.; 1 Chit. Cr. L. 20;
5 Vin. Ab. 427; 2 Phil. Ev. 253 2 Sell. Pr. 70; Bac. Ab. h.t.; Com. Dig.
Justices of the Peace, B 79; Id. D 7; Id, Officer, E 2; Wille. Off. Const.

CONSTABLEWICK. In England, by this word is meant the territorial
jurisdiction of a constable. 5 Nev. & M. 261.

CONSTAT, English law. The name of a certificate, which the clerk of the pipe
and auditors of the exchequer make at the request of any person who intends
to plead or move in the court for the discharge of anything; and the effect
of it is, the certifying what constat (appears) upon record touching the
matter in question.
2. A constat is held to be superior to an ordinary certificate, because
it contains nothing but what is on record. An exemplification under the
great seal, of the enrollment of any letters-patent, is called a constat. Co.

Litt. 225. Vide Exemplification; Inspeximus.
3. Whenever an officer gives a certificate that such a thing appears of
record, it is called a constat; because the officer does not say that the
fact is so, but it appears to be as he certifies. A certificate that it
appears to the officer that a judgment has been entered, &c., is
insufficient. 1 Hayw. 410.

CONSTITUENT. He who gives authority to another to act for him. 1 Bouv. Inst.
n. 893.
2. The constituent is bound with whatever his attorney does by virtue
of his authority. The electors of a member of the legislature are his
constituents, to whom he is responsible for his legislative acts.

CONSTITUIMUS. A Latin word which signifies we constitute. Whenever the king
of England is vested with the right of creating a new office, he must use
proper words to do so, for example, erigimus, constituimus, c. Bac. Ab.
Offices, &c. E.

TO CONSTITUTE, contr. To empower, to authorize. In the common form of
letters of attorney, these words occur, I nominate, constitute and appoint."

CONSTITUTED AUTHORITIES. Those powers which the constitution of each people
has established to govern them, to cause their rights to be respected, and
to maintain those of each of its members.
2. They arc called constituted, to distinguish them from the
constituting authority which has created or organized them, or has delegated
to an authority, which it has itself created, the right of establishing or
regulating their movements. The officers appointed under the constitution
are also collectively called the constituted authorities. Dall. Dict. mots
Contrainte par corps, n. 526.

CONSTITUTION, government. The fundamental law of the state, containing the
principles upon which the government is founded, and regulating the
divisions of the sovereign powers, directing to what persons each of these
powers is to be confided, and the, manner it is to be exercised as, the
Constitution of the United States. See Story on the Constitution; Rawle on
the Const.
2. The words constitution and government (q.v.) are sometimes employed
to express the same idea, the manner in which sovereignty is exercised in
each state. Constitution is also the name of the instrument containing the
fundamental laws of the state.
3. By constitution, the civilians, and, from them, the common law
writers, mean some particular law; as the constitutions of the emperors
contained in the Code.

CONSTITUTION, contracts. The constitution of a contract, is the making of
the contract as, the written constitution of a debt. 1 Bell's Com. 332, 5th
ed.

CONSTITUTION OF THE UNITED STATES OF AMERICA. The fundamental law of the
United States.
2. It was framed by a convention of the representatives of the people,
who met at Philadelphia, and finally adopted it on the 17th day of
September, 1787. It became the law of the land on the first Wednesday in
March, 1789. 5 Wheat. 420.
3. A short analysis of this instrument, so replete with salutary
provisions for insuring liberty and private rights, and public peace and
prosperity, will here be given.
4. The preamble declares that the people of the United States, in order
to form a more perfect union, establish justice, insure public tranquillity,
provide for the common defence, promote the general welfare, and secure the
blessings of liberty to themselves and their posterity, do ordain and
establish this constitution for the United States of America.
5.-1. The first article is divided into ten sections. By the first
the legislative power is vested in congress. The second regulates the
formation of the house of representatives, and declares who shall be
electors. The third provides for the organization of the senate, and bestows
on it the power to try impeachments. The fourth directs the times and places
of holding elections and the time of meeting of congress. The fifth
determines the power of the respective houses. The sixth provides for a
compensation to members of congress, and for their safety from arrests and
disqualifies them from holding certain offices. The seventh directs the
manner of passing bills. The eighth defines the powers vested in congress.
The ninth contains the following provisions: 1st. That the migration or
importation of persons shall not be prohibited prior to the year 1808. 2d.
That the writ of habeas corpus shall not be suspended, except in particular
cases. 3d. That no bill of attainder, or ex post facto law, shall be passed.
4th. The manner of laying taxes. 5th. The manner of drawing money out of the
treasury. 6th. That no title of nobility shall be granted. 7th. That no
officer shall receive a present from a foreign government. The tenth forbids
the respective states to exercise certain powers there enumerated.
6.-2. The second article is divided into four sections. The first
vests the executive power in the president of the United States of America,
and provides for his election, and that of the vice-president. The second
section confers various powers on the president. The third defines his
duties. The fourth provides for the impeachment of the president, vice-
president, and all civil officers of the United States.
7.-3. The third article contains three sections. The first vests the
judicial power in sundry courts, provides for the tenure of office by the
judges, and for their compensation. The second provides for the extent of
the judicial power, vests in the supreme court original jurisdiction in
certain cases, and directs the manner of trying crimes. The third defines
treason, and vests in congress the power to declare its punishment.
8.-4. The fourth article is composed of four sections. The first
relates to the faith which state records, &c., shall have in other states.
The second secures the rights of citizens in the several states for the
delivery of fugitives from justice or from labor. The third for the
admission of new states, and the government of the territories. The fourth
guaranties to every state in the Union the republican form of government,
and protection from invasion or domestic violence.
9.-5. The Fifth Article provides for amendments to the constitution.
10.-6. The sixth article declares that the debts due under the
confederation shall be valid against the United States; that the
constitution and treaties made under its powers shall be the supreme law of
the land that public officers shall be required by oath or affirmation to
support the Constitution of the United States that no religious test shall
be required as a qualification for office.
11.-7. The seventh article directs what shall be a sufficient
ratification of this constitution by the states.
12. In pursuance of the fifth article of the constitution, articles in
addition to, and amendment of, the constitution, were proposed by congress,
and ratified by the legislatures of the several states. These additional
articles are to the following import:
13.-1. Relates to religious freedom; the liberty of the press; the
right of the people to assemble and petition.
14.-2. Secures to the people the right to bear arms.
15.-3. Provides for the quartering of soldiers.
16.-4. Regulates the right of search, and of arrest on criminal
charges.
17.-5. Directs the manner of being held to answer for crimes, and
provides for the security of the life, liberty and property of the citizens.
18.-6. Secures to the accused the right to a fair trial by jury.
19.-7. Provides for a trial by jury in civil cases.
20.-8. Directs that excessive bail shall not be required; nor
excessive fines imposed nor cruel and unusual punishments inflicted.
21.-9. Secures to the people the rights retained by them.
22.-10. Secures the rights to the states, or to the people the rights
they have not granted.
23.-11. Limits the powers of the courts as to suits against one of the
United States.
24.-12. Points out the manner of electing the president and vice-
president.

CONSTITUTIONAL. That which is consonant to, and agrees with the
constitution.
2. When laws are made in violation of the constitution, they are null
and void: but the courts will not declare such a law void unless there
appears to be a clear and unequivocal breach of the constitution. 4 Dall. R.
14; 3 Dall. R. 399; 1 Cranch, R. 137; 1 Binn. R. 415 6 Cranch, R. 87, 136; 2
Hall's Law Journ. 96, 255, 262; 3 Hall's Law Journ. 267; Wheat. Dig. tit.
Constitutional Law; 2 Pet. R. 522; 2 Dall. 309; 12 Wheat. R. 270; Charlt. R.
175,.235; 1 Breese, R. 70, 209; 1 Blackf. R. 206 2 Porter, R. 303; 5 Binn.
355; 3 S. & R. 169; 2 Penn. R. 184; 19 John. R. 58; 1 Cowen, R. 550; 1
Marsb. R. 290 Pr. Dec. 64, 89 2 Litt. R. 90; 4 Monr R. 43; 1 South. R. 192;
7 Pick. R. 466; 13 Pick. R. 60 11 Mass. R. 396; 9 Greenl. R. 60; 5 Hayw. R.
271; 1 Harr. & J. 236; 1 Gill & J. 473; 7 Gill & J. 7; 9 Yerg. 490; 1 Rep.
Const. Ct. 267; 3 Desaus. R. 476; 6 Rand. 245; 1 Chip. R. 237, 257; 1 Aik.
R. 314; 3 N. H. Rep. 473; 4 N. H. Rep. 16; 7 N. H. Rep. 65; 1 Murph. R. 58.
See 8 Law Intell. 65, for a list of decisions made by the supreme court of
the United States, declaring laws to be unconstitutional.

CONSTITUTOR, civil law. He who promised by a simple pact to pay the debt of
another; and this is always a principal obligation. Inst. 4, 6, 9.

CONSTRAINT. In the civil and Scottish law, by this term is understood what,
in the common law, is known by the name of duress.
2. It is a general rule, that when one is compelled into a contract,
there is no effectual consent, though, ostensibly, there is the form of it.
In such case the contract will be declared void.
3. The constraint requisite thus to annul a contract, must be a vis aut
me us qui cadet in constantem virum, such as would shake a man of firmness
and resolution. 3 Ersk. 1, Sec. 16; and 4, 1, Sec. 26; 1 Bell's Conn. B. 3,
part 1, o. 1, s. 1, art. 1, page 295.

CONSTRUCTION, practice. It is defined by Mr. Powell to be "the drawing in
inference by the act of reason, as to the intent of an instrument, from
given circumstances, upon principles deduced from men's general motives,
conduct and action." This definition may, perhaps, not be sufficiently
complete, inasmuch as the term instrument generally implies something
reduced into writing, whereas construction, is equally necessary to
ascertain the meaning of engagements merely verbal. In other respects it
appears to be perfectly accurate. The Treatise of Equity, defines
interpretation to be the collection of the meaning out of signs the most
probable. 1 Powell on Con. 370.
2. There are two kinds of constructions; the first, is literal or
strict; this is uniformly the construction given to penal statutes. 1 Bl.
Com. 88; 6 Watt's & Serg. 276; 3 Taunt. 377. 2d. The other is liberal, and
applied, usually, to remedial laws, in order to enforce them according to
their spirit.
3. In the supreme court of the United States, the rule which has been
uniformly observed in construing statutes, is to adopt the construction
made by the courts of the country by whose legislature the statute was
enacted. This rule may be susceptible of some modification when applied to
British statutes which are adopted in any of these states. By adopting them,
they become our own, as entirely as if they had been enacted by the
legislature of the state.
4. The received construction, in England, at the time they are admitted
to operate in this country - indeed, to the time of our separation from the
British empire - may very properly be considered as accompanying the
statutes themselves, and forming an integral part of them. But, however we
may respect the subsequent decisions (and certainly they are entitled to
great respect,) we do not admit their absolute authority. If the English
courts vary their construction of a statute, which is common to the two
countries, we do not hold ourselves bound to fluctuate with them. 5 Pet. R.
280.
5. The great object which the law has in all cases, in contemplation,
as furnishing the leading principle of the rules to be observed in the
construction of contracts, is, that justice is to be done between the
parties, by enforcing the performance of their agreement, according to the
sense in which it was mutually understood and relied upon at the time of
making it.
6. When the contract is in writing, the difficulty lies only in the
construction of the words; when it is to be made out by parol testimony,
that difficulty is augmented by the possible mistakes of the witnesses as to
the words used by the parties; but still, when the evidence is received, it
must be assumed as correct, when a construction is to be put upon it. The
following are the principal rules to be observed in the construction of
contracts. When. the words used are of precise and unambiguous meaning,
leading to no absurdity, that meaning is to be taken as conveying the
intention of the parties. But should there be manifest absurdity in the
application of such meaning, to the particular occasion, this will let in
construction to discover the true intention of the parties: for example;
1st. When words are manifestly inconsistent with the declared purpose and
object of the contract, they will be rejected; as if, in a contract of sale,
the price of the thing sold should be acknowledged as received, while the
obligation of the seller was not to deliver the commodity. 2 Atk. R. 32. 2d.
When words are omitted so as to defeat the effect of the contract, they will
be supplied by the obvious sense and inference from the context; as, if the
contract stated that the seller, for the consideration of one hundred
dollars, sold a horse, and the buyer promised to pay him for the said horse
one hundred, the word dollars would be supplied. 1 3d. When the words, taken
in one sense, go to defeat the contract, while they are susceptible of
another construction which will give effect to the design of the parties,
and not destroy it, the latter will be preferred. Cowp. 714.
8.-2. The plain, ordinary, and popular sense of the words, is to be
preferred to the more unusual, etymological, and recondite meaning or even
to the literal, and strictly grammatical construction of the words, where
these last would lead to any inefficacy or inconsistency.
9.-3. When a peculiar meaning has been stamped upon the words by the
usage of a particular trade or place in which the contract occurs, such
technical or peculiar meaning will prevail. 4 East, R. 135. It is as if the
parties in framing their contract had made use of a foreign language, which
the court is not bound to understand, but which on evidence of its import,
must be applied. 7 Taunt. R. 272; 1 Stark. R. 504. But the expression so
made technical and appropriate, and the usage by which it has become so,
must be so clear that the court cannot entertain a doubt upon the subject. 2
Bos. & P. 164; 3 Stark. Ev. 1036: 6 T. R. 320. Technical words are to be
taken according to their approved and known use in the trade in which the
contract is entered into, or to which it relates, unless they have
manifestly been understood in another sense by the parties. Vide 16 Serg. &
R. 126.
10.-4. The place where a contract has been made, is a most material
consideration in its construction. Generally its validity is to be decided
by the law of the place where it is made; if valid there, it is considered
valid every where. 2 Mass. R. 88; 1 Pet. R. 317 Story, Confl. of Laws, 2; 4
Cowen's R. 410, note; 2 Kent, p. 39, 457, in the notes 3 Conn. R. 253, 472;
4 Conn. R. 517. Its construction is to be according to the laws of the place
where it is made for example, where a note was given in China, payable
eighteen months after date, without any stipulation as to the amount of
interest, the court allowed the Chinese interest of one per centum per month
from the expiration of the eighteen mouths. 1 Wash. C. C. R. 253 see 12.
Mass. R. 4, and the article Interest for Money.
11.-5. Previous conversations, and all that passes in the course of
correspondence or negotiation leading to the contract, are entirely
superseded by the written agreement. The parties having agreed to reduce the
terms of their contract to writing, the document is constituted as the only
true and final exposition of their admissions and intentions; and nothing
which does not appear in the written agreement will be considered as a part
of the contract. 5 Co. R. 26; 2 B. & C. 634; 4 Taunt. R. 779. But this rule
admits of some exceptions; as, where a declaration is made before a deed is
executed, showing the design with which it was to be executed, in cases of
frauds; 1 S. & R. 464; 10 S. & R. 292; and trusts, though no trust was
declared in the writing. 1 Dall. R. 426; 7 S. & R. 114.
12.-6. All contracts made in general terms, in the ordinary course of
trade, are presumed to incorporate the usage and custom of the trade to
which they relate. The parties are presumed to know such usages, and not to
intend to exclude them. But when there is a special stipulation in
opposition to, or inconsistent with the custom, that will of course prevail.
Holt's R. 95.
13.-7. When there is an ambiguity which impedes the execution of the
contract, it is first, if possible, to be resolved, on a view of the whole
contract or instrument, aided by the admitted views of the parties, and, if
indispensable, parol evidence may be admitted to clear it, consistently with
the words. 1 Dall. R. 426; 4 Dall. R. 34 0; 8 S. & R. 609.
14.-8. When the words cannot be reconciled with any practicable or
consistent interpretation, they are to be considered as not made use of
"perinde sunt ac si scripts non essent."
15. It is the duty of the court to give a construction to all written
instruments; 3 Binn. R. 337; 7 S. & R. 372; 15 S. & R. 100 4 S. & R. 279 8
S. & R. 381; 1 Watts. R. 425; 10 Mass. R. 384; 3 Cranch, R. 180 3 Rand. R.
586 to written evidence 2 Watts, R. 347 and to foreign laws, 1 Penna. R.
388. For general rules respecting the construction of contracts, see 2 Bl.
Com. 379; 1 Bouv. Inst. n. 658, 669; 2 Com. on Cont. 23 to 28 3 Chit. Com.
Law, 106 to 118 Poth. Oblig. P. 1, c. 1, art. 7; 2 Evans' Poth. Ob. 35; Long
on Sales, 106; 1 Fonb. Eq. 145, n. b Id. 440, n. 1; Whart. Dig. Contract, F;
1 Powell on Contr. 370 Shepp. Touchst. c. 5 Louis. Code, art. 1940 to 1957;
Corn. Dig. Merchant, (E 2,) n. j.; 8 Com. Dig. tit. Contract, iv.; Lilly's
Reg. 794; 18 Vin. Abr. 272, tit. Reference to Words; 16 Vin. Abr. 199, tit.
Parols; Hall's Dig. 33, 339; 1 Ves. Jun. 210, n.; Vattel, B. 2, c. 17; Chit.
Contr. 19 to 22; 4 Kent. Com. 419; Story's Const. Sec. 397-456; Ayl. Pa d.
B. 1, t. 4; Rutherf. Inst. B. 2, c. 7, Sec. 4-11; 20 Pick. 150; 1 Bell's
Com. 5th ed. 431; and the articles, Communings; Evidence; Interpretation;
Parol; Pourparler. As to the construction of wills, see 1 Supp. to Ves. Jr.
21, 39, 56, 63, 228, 260, 273, 275, 364, 399; 1 United States Law Journ.
583; 2 Fonb. Eq. 309; Com. Dig. Estates by Devise. N 1; 6 Cruise's Dig. 171
Whart. Dig. Wills, D. As to the construction, of Laws, see Louis. Code, art.
13 to 21; Bac. Ab. Statutes, J; 1 Bouv. Inst. n. 86-90; 3 Bin. 858; 4 Bin.
169, 172; 2 S. & R. 195; 2 Bin. 347 Rob. Digest, Brit. Stat. 370; 7 Term.
Rep. 8 2 Inst. 11, 136; 3 Bin. 284-5; 3 S. & R. 129; 1 Peere Wms. 207; 3
Burr. Rep. 1755-6; 3 Yeates, 108; 11 Co. 56, b; 1 Jones 26; 3 Yeates, 113
117, 118, 120; Dwarris on Statutes.
16. The following words and phrases have received judicial construction
in the cases referred to. The references may be useful to the student and
convenient to the practitioner.

A and his associates. 2 Nott.& M'Cord, 400.
A B, agent. 1 Breese's R. 172.
A B, (seal) agent for C D. 1 Blackf. R. 242.
A case. 9 Wheat. 738.
A piece of land. Moor. 702; S. C. Owen, 18.
A place called the vestry. 3 Lev. R. 96; 2 Ld. Raym. 1471.
A slave set at liberty. 3 Conn. R. 467.
A true bill. I Meigs, 109.
A two penny bleeder. 3 Whart. R. 138.
Abbreviations. 4 C. & P. 51; S. C. 19 Engl. C. L. R. 268.
Abide. 6 N. H. Rep. 162.
About. 2 Barn. & Adol. 106; 22 E. C. L. R. 36; 5 Greenl. R. 482. See 4
Greenl. 286. About _____ dollars. 5 Serg. & Rawles, 402.
About $150. 9 Shep. 121.
Absolute disposal. 2 Eden, 87; 1 Bro. P. C. 476; 2 Johns. R. 391; 12 Johns.
R. 389.
Absolutely. 2 Pa. St. R. 133.
Accept. 4 Gill & Johns. 5, 129
Acceptance. There is your bill, it is all right. 1 Esp. 17. If you will send
it to the counting-house again, I will give directions for its being
accepted. 3 Camp. 179. What, not accepted ? We have had the money, and
they ought to have been paid; but I do not interfere; you should see my
partner. 3 Bing. R. 625; S. C. 13 Eng. C. L. R. 78. The bill shall be duly
honored, and placed to the drawer's credit. 1 Atk. 611. Vide Leigh's N. P.
420.
Accepted. 2 Hill, R. 582.
According to the bill delivered by the plaintiff to the defendant. 3 T. R.
575.
According to their discretion. 5 Co. 100; 8 How,. St. Tr. 55 n.
Account. 5 Cowen, 587, 593. Account closed. 8 Pick. 191. Account stated. 8
Pick. 193. Account dealings. 5 Mann. & Gr. 392, 398.
Account and risk. 4 East, R. 211; Holt on Sh. 376.
Accounts. 2 Conn. R. 433.
Across. 1 Fairf. 391.
Across a country. 3 Mann. & Gr. 759.
Act of God. 1 Cranch, 345; 22 E. C. L. R. 36; 12 Johns. R. 44; 4
Add. Eccl. R. 490.
Acts. Platt on Cov. 334.
Actual cost. 2 Mason, R. 48, 393, 2 Story's C. C. R. 422.
Actual damages. 1 Gall. R. 429.
Adhere. 4 Mod. 153.
Adjacent. Cooke, 129.
Adjoining. 1 Turn. R. 21.
Administer. 1 Litt. R. 93, 100.
Ad tunc et indem. I Ld. Raym. 576.
Advantage, priority or preference. 4 W. C. C. R. 447.
Adverse possession. 3 Watts, 70, 77, 205, 345; 3 Penna. R. 134; 2 Rawle's R.
305; 17 Serg. & Rawle, 104; 2 Penna. R. 183; 3 Wend. 337, 357; 4 Wend.
507; 7 Wend. 62; 8 Wend. 440; 9 Wend. 523; 15 Wend. 597; 4 Paige, 178; 2
Gill & John. 173; 6 Pet. R. 61, 291 11 Pet. R. 41; 4 Verm. 155; 14 Pick.
461.
Advice. As per advice. Chit. Bills, 185.
Affecting. 9 Wheat. 855.
Aforesaid. Ld. Baym. 256; Id. 405.
After paying debts. 1 Ves. jr. 440; 3 Ves. 738; 2 Johns. Ch. R. 614; 1 Bro.
C. C. 34; 2 Sch. & Lef. 188.
Afterwards to wit. 1 Chit. Cr. Laws, 174.
Against all risks. 1 John. Cas. 337.
Aged, impotent, and poor people. Preamble to Stat. 43 Eliz. c. 4; 17 Ves.
173, in notes; Amb. 595; 7 Ves. 423; Scho. & Lef. 111; 1 P. Wims. 674; S.
C. Eq. Cas. Ab. 192, pl. 9; 4 Vin. Ab. 485; 7 Ves. 98, note; 16 Ves. 206:
Duke's Ch. Uses, by Bridgman, 361; 17 Ves. 371; Boyle on Charities, 31.
Agreed. 1 Roll's Ab. 519,
Agreement. 7 E. C. L. R. 331; 3 B. & B. 14; Fell on Guar. 262. Of a good
quality and moderate price. 1 Mo. & Malk. 483; S. C. 22 E. C. L. R. 363.
Aiding and abetting. Act of Congress of 1818, c. 86, Sec. 3; 12 Wheat. 460.
Aliments. Dig. 34, 1, 1.
All. 1 Vern. 3; 3 P. Wms. 56; 1 Vern. 341; Dane's Ab. Index, h.t.
All debts due to me.; 1 Meriv. 541, n.; 3 Meriv. 434. All I am worth. 1 Bro.
C. C. 487; 8 Ves. 604. All I am possessed of. 5 Ves. 816. All my clothes
and linen whatsoever. 3 Bro. C. C. 311. All my household goods and
furniture, except my plate and watch. 2 Munf. 234. All my estate. Cows,
299; 9 Ves. 604. All my real property. 18 Ves. 193. All my freehold lands.
6 Ves. 642. All and every other my lands, tenements, and hereditaments. 8
Ves. 256; 2 Mass. 56; 2 Caines' R. 345; 4 Johns. R. 398. All the
inhabitants. 2 Conn. R. 20. All sorts of. 1 Holt's N. P. R. 69. All
business. 8 Wendell. 498; 23 E. C. L. R. 398; 1 Taunt. R. 349; 7 B. & Cr.
278, 283, 284.
All claims and demands whatsoever. 1 Edw. Ch. R. 34. All baggage is at the
owner's risk. 13 Wend. R. 611; 5 Rawle's R. 179; 1 Pick. R. 53; 3 Fairf R.
422; 4 Har. & John. 317. All civil suits. 4 S. & R. 76. All demands. 2
Caines' R. 320, 327; 15 John R. 197; 1 Ld. Raym. 114. All lots I own in
the town of F. 4 Bibb, R, 288. All the buildings thereon. 4 Mass. R. 110;
7 John. R. 217. All my rents. Cro. Jac. 104. All I am worth. 1 Bro. C. C.
437. All and every other my lands, tenements, and hereditaments. 8 Ves.
246; 2 Mass. 56; 2 Caines' R. 345; 4 John. Ch. 388.
All other articles perishable in their own nature. 7 Cowen, 202.
All and every. Ward on Leg. 105; Cox, R. 213.
All minerals, or magnesia of any kind. 5 Watts, 34.
All my notes. 2 Dev. Eq. R. 489.
All that I possess, in doors and out of doors. 3 Hawks, R. 74.
All timber trees and other trees, but not the annual fruit thereof. 8 D. &
R. 657; S. ic. 5 B. & C, R. 942.
All two lots. 7 Gill & Johns. 227.
All action. 5 Binn. 457.
Also. 4 Rawle, R. 69; 2 Bayw. 161
Amongst. 9 Ves. 445; 9 Wheat. R. 164; 6 Munf. 352.
And, construed or. 3 Ves. 450; 7 Ves. 454; 1 Supp. to Ves. jr. 435; 2 Supp.
to Ves. jr. 9, 43, 114; 1 Yeates, 41, 319; 1 Serg. & Rawle, 141. Vide
Disjunction, Or.
And all the buildings thereon. 4 Mass. R. 110; 7 John R. 217.
And also. 1 Hayw. 161.
And so on, from year to year, until the tenancy hereby created shall be
determined as hereinafter mentioned. 1 P. & D. 454; and see 2 Campb. R.
573; 3 Campb. 510; 1 T. R. 378.
And the plaintiff doth the like. 1 Breese's R. 125.
Annual interest. 16 Verm. 44.
Annually, or in any way he may wish. 2 M'Cord's Ch. R. 281.
Any person or persons. 11 Wheat. R. 392; 3 Wheat. R. 631.
Any court of record. 6 Co. 19.
Any goods. 3 Campb. 321.
Any creditor. 5 B. & A. 869.
Any other fund. 1 Colly. R. 693.
Any other matter or thing from the beginning of the world. 4 Mason, 227.
Apartment. 10 Pick. 293.
Apparel. Goods and wearing apparel, in a will. 3 Atk. 61.
apparatus. 9 Law Rep. 207.
Appeals. 1 Breese's R. 261.
Appear. 2 Bailey's R. 513.
Appellate. 1 Breese's R. 261
Appropriation. 1 Scam. R. 344.
Approved paper. 4 Serg. & Rawle, 1; 20 Wend. R. 431; 2 Campb. 532.
Appurtenances. 1 Serg. & Rawle, 169; 8 Johns. R. 47, 2d edit.; Com. Dig.
Grant, E 9; 5 Serg. & Rawle, 110; Holt on Shipp. 404; 9 Pick. 293; 7 Mass.
6; 12 Pick. 436.
Are. 2 B. & B. 223.
Arrears. Ward on Leg. 219; 2 Ves. 430.
Arrive. 17 Mass. 188.
Articles perishable in their own nature. 7 Cowen, 202.
As appears by the bond or by the books. 1 Wils. 339, 279, 121; 2 Str. 1157,
1209, 1219.
As appears by the master's allocator. 2 T. R. 55.
As executors are bound in law to do. 2 Ohio R. 346.
As follows. 1 Chit. Cr. Law 233.
As this deponent believes. 2 M. & S. 563.
Ass. 2 Moody, C. C. 3.
Asses-Cattle. 1 R. & M. C. C. 3; 2 Russ. Cr. & M. 498.
Assent to. 4 Gill & Johns. 5, 129.
Assignment, actual or potential. 5 M. & S. 228.
Assigns. 5 Co. 77 b.
At. 2 Caines' Err. 158.
At and from. 1 Marsh. Ins. 358, 261, a; 1 Caines' R. 75, 79; 1 New Rep. 23;
4 East, R. 130.
At any port or places. 1 Marsh. Ins. 191.
At his will. Roll's Ab. 845; Bac. Ab. Estate for life and occupancy, A.
At least. 8 W. & S. 470.
At such time and manner. 19 Ves. 387.
At twenty-one. Payable at twenty-one. 6 Ves. 245.; 7 ves. 412; 9 Ves. 225; 1
Bro. C. C. 91.
At the trial of the cause. 9 E. C. L. R. 202, 186.
At the wholesale factory price. 2 Conn. R. 69.
Attention, shall meet. 3 E. C. L. R. 407; 13 Id. 329.
Attest. 9 Mees. & W. 404.
Authority-Jurisdiction. 2 Bl. R. 1141.

Baggage. 6 Hill, N.Y. 586.
Baggage of Passengers at the risk of the owners. 19 Wend. 234, 251; 21 Wend.
153; 26 Wend. 591; 17 Verm. 151.
Bank money. 5 Humph. R. 140.
Bank notes. 5 Mason's R. 549; 6 Wend. 346, 354.
Bankruptcy. 6 T. R. 684.
Bar-keeper. 3 S. & R. 351.
Bargain and sell. 4 Monr. R. 463.
Barley. 4 C. & P. 548.
Barrels. 7 Cowen, R. 681.
Beans. Bac. Ab. Merchant, &c. I. 1 Mood. C. C. 323.
Bearing Interest. 1 Stark. r. 452; 2 E.C. L.R. 466.
Beast. 1 Russ. C. & M. 568; 1 Russ. on Cr. 568; Bac. Ab. Sodomy.
Beef. 6 W. & S. 279.
Before the next term. 1 Binn. 76; 4 Yeates, 511.
Before the first day of the term after the action has been commenced. 4
Dall. 433.
Before the sitting of the court. 5 Mass. R. 197.
Beginning to keep house. 6 Bing. R. 363; 19 Ves. 543.
Begotten. To be begotten. Co. Litt. 20 b, and n. 3; 3 Leon. 5.
Belongs - Belonging. 3 Conn. R. 467; 2 Bing. 76; Chit. Pr. 475 n.; 11 Conn.
R. 240; 1 Coxe's R. 255.
Believe. 2 Wend. 298.
Belong. 3 Conn. R. 467.
Benefits of my real estate, construed, 4 Yates, 23.
Benevolent purposes. 3 Mer. 17; Amb. 585, n. (Blunt's Edit.)
Best of his knowledge and belief. 1 Paige, 404; 3 Id. 107, 212.
Between. 2 Saund. 158 b. n. 6; 1 Shipl. R. 201; 1 Mass. 91.
Between them. 2 Mer. R. 70.
Beyond sea. 3 Wheat. R. 541; 3 Cranch, R. 177; 14 Pet. C. 141; I Harr. &
McHen. 89; 1 Har. & J. 350; 2 McCord, R. 331; 3 Mass. R. 271; 1 Pick. R.
263; 9 Serg. & Rawle, 288; 2 Dall. 217; 1 Yeates, 329. Vide Beyond 8ea, in
the body of the work.
Beyond seas. 3 Wheat. 343; 9 S. & R. 291.
Bien. 2 Ves. 163.
Big. 2 Dev. R. 115.
Blubber. 1 Story, R. 603.
Board, boarding. 2 Miles, R. 323.
Bag. Cro. Car. 511.
Boiler. Wright, 143.
Book. 2 Campb. 25, 28, n.; 11 East, 244.
Book debt-Book entries. 2 Miles, R. 101, 102; 3 Ired. R. 77, 443; 4 Ired.
110.
Bona fide. 1 Leigh. N. P. 326.
Boons. Sugd. Pow. 633, 671.
Bound by surety. 5 Serg. & Rawle, 329.
Bound with surety, 6 Binn. 53.
Bounded on the margin. 6 Cowen, 526.
Bounded on the road. 13 Mass. 259.
Breach of good behaviour. 2 Mart. N. S. 683.
Brick factory. 21 Pick. R. 25.
Building. 16 John. R. 14; 13 John. R. 346; 9 Bing. 305; 5 Mann. & Gr. 9, 33.
Business. 1 M. & Selw. 95.
Butcher. 1 Barn. & A. 617; 6 Watts & Serg. 269, 277.
By act and operation of law. 3 Caines' R. 64.
By surety. 5 Serg. & Rawle, 329.
By a certain time. Penna. R. 48.
By any other means. 2 Co. 46
By virtue of his office. 3 E. C. L. R. 425.
By a stream. 3 Sumn. R. 170.
By next November. 3 Pa. 48.
By the year. 2 Miles, R. 302.

Cabinet of curiosities. 1 Cox, R. 77; 1 Bro. C. C. 467.
Came by descent, gift, or devise. 2 Pet. 58.
Cargo. 4 Pick. 433; 2 Gill & John. 134, 162.
Case-suit. 2 Murph. 320.
Catchings. 1 Story, R. 603.
Cattle. 1 R. & M. C. C. 3; 2 Russ. C. & M. 498; R. & R. C. C. 77; 2 East, P.
C. 1074; 1 Leach, C, C. 72; 2 W. Black. 721; 2 Moody, C: C. 3.
Cause. 1 Supp. to Ves. jr. 510.
Cause of action. Wilk. on Lim. [49).
Cease. Coop. Ch. R. 14.5.
Cede. 1 liar. (N. J.) 181.
Certificate of deposit. 6 Watts & Sero,. 227.
Chamber or rooms. 3 Leon. 210.
Chambres. 5 Watts, R. 243,
Charged in execution. 4 T. R. 367.
Charges, costs, and expenses, 2 Wils. 267; 13 Serg. & Rawle, 79.
Charitable uses. Boyle on Charities, 281; 7 Ves. 79; 1 Mer. 86, 92, 93; 1
Sim. & Stu. 69; 1 Myl. & Craig, 286; 4 Wheat. App. p. 6.
Charity. 9 Ves. 399.,
Cheat. 2 Hale's Hist. P. C. 183: Bac. Ab. Indictment, G 3.
Chiefest and discreetest. 13 Ves. 13.
Child, grandchild, issue, son; see Legatee; 1 Ves. 290; Id. 335; Ambl. 397;
Id. 701; 5 Burr. 2703; Cowp. 314; 3 Anstr. 684; Lofft, 19; 7 T. R. 322; 1
East, 120; 2 Eden, 194; 2 Bro. C. C. 33: 2 Ves. jr. 673; 3 Ves. 232; Id.
421; 4 Ves. 437; Id. 692; 5 Ves. 530; 6 Ves. 43, Id. 345; 7 Ves. 522; 10
Ves. 160, Id. 176; Id. 195; 13 Ves. 340; 1 Cox, 248; Id. 327; 2 Cox, 184;
1 Ves. & Bea. 422, 462, 469; 2 Ves. & Bea. 213; 3 Ves. & Bea. 59, 67, 69,
113; 1 Meriv. 654; 2 Meriv. 382; Dick. 344; 1 Eden, 64; 1 Bro. C. C. 530;
2 Bro. C. C. 68, 230, 658; 3 Bro. C. C. 148, 347, 352, 434: 1 Bro. C. C.
55; 19 Ves. 125; 1 Ball & B. 486; Com. Dig. App., Devise of real property,
x. 5, 6, 7, 8, 9; Id. Devise of personal property, viii. 13.
Child's part. 2 Roll. R. 104; Poph. 148; 1 Roll. R. 193; Cro. Jac. 417.
Children. 3 Paige, 10; 5 Ves. 530; 1 Ves. & Bea. 434; 4 Eng. Ch. R. 565; 5
Conn. R. 228.
To such child or children, if more than one, as may happen to be enceinte by
me. 17 Ves. 528.
To the children which I may have by A, living at my decease. 1 Ves. & Bea.
422.
Chromate of iron. 5 Watts, 34.
Civil action. 6 Binn. 5; 1 Binn. 197.
Civil suit. 4 S. & R. 76.
Chuck-a-luck. 3 J. J. Marsh. 133.
Claim. 16 Pet. 538, 575, 576, 604, 615.
Clear. Ambl. 273; 2 Ves. 500. Ward on Leg. 222; 2 Atk. 376.
Clear of all charges and assessments whatever. 4 Yeates, 386.
Clear deed. 3 W. & S. 563, 565.
Closing an account. 7 Serg. & Rawle, 128; 8 Pick. 187.
Clothes. All my clothes and linen whatsoever. 3 Bro. C. C. 311.
Coal mine. Cro. Jac. 150; Noy, 121; Gilb. Ej. 61, 2d ed.; Rosc. R. Act. 486.
Coasting trade. 3 Cowen, R. 713,
Coffer. 2 Hale's Hist. P. C. 3; Bac. Ab. Indictment, G 3.
Cohabitation. 1 Add. R. 476; 3 Add. R. 277; 2 Tyrw. 76; 2 Cr. & J. 66;
Rogers' Eccl. Law, tit. Marriage.
Collateral. Sugd. Pow. 76.
Collectable. 8 Watts, R. 361.
Come to. 1 Serg. & Rawle, 224; 2 Pet. R. 69, 94.
Commenced. 14 East, 539.
Commerce - Navigation. 9 Wheat. 1.
Commission and guaranty. 3 Whart. 288.
Commit. 3 Man. Gr. & Scott, 465, 477.
Commit suicide. 3 Man. Gr. & Scott, 477.
Commodities. 12 Mass 256.
Common law. 3 Pet. 447; 1 Gall. R. 19.
Complete Steam engine. 2 Hall, 3128.
Concealed. 12 Wheat. 493; 12 Wheat. R. 486.
Conclusive. 5 Binn. 387; 6 Binn. 128; 4 Yeates, 551.
Conditions performed. 1 Call. 567.
Confidence. Boyle on Char. 319; 2 Pa. St. R. 133.
Consent - Submission. 9 C. & P. 722.
Consentable lines. 10 Serg. & Rawles 110.
Construction. 3 Mont. 166.
Containing. 1 Murph. 348.
Contents unknown. 3 Taunt. R. 303.
Contrary to law. 1 Blackf. R. 318.
Convenient speed, or as soon as convenient. 19 Ves. 336, 390, notes; 1 Ves.
jr. 366.
Convey. 3 A. K. Marsh, 618.
Conveyance. 2 Serg. & Rawle, 498; 3 Mass. 487.
Convicted. 1 Wheat. 461; 15 East, R. 570; 7 Mann. & Gr. 481, 508.
Copper-fastened. 24 E. C. L. IR. 415.
Coppered, ship. 8 Pet. 557.
Corrupt. 1 Benth. Ev. 351.
Correcting - revising. 2 Shepl. 205.
Cost. 2 Wash. C. C. R. 498.
Costs. Wright, 121. Pay his own costs. 1 Hayw. 485.
Cotton in bales. 2 C. & P. 525.
County aforesaid. 2 Bl. R. 847.
Court of record. 5 Ohio R. 546. Vide 3 Wend. 267.
Cousins. 2 Bro. R. 125; Ward on Leg. 121.
Covenants. Provided always, and it is agreed that the lessor shall find
great timber, Bac. Ab Covenant, A. I oblige myself to pay so much money.
Hard. 178. I am content to give A ten pounds at Michaelmas, and ten pounds
at Ladyday. 3 Leon. 119. With usual covenants. 15 Ves. 528; 3 Anstr. 700.
Covenants Performed absque hoc. 6 Penn. St. Rep. 398.
Credible. Com. R. 91; S. C. 1 Freem. 510.
Credible witness. 5 Mass. 219; 12 Mass. 358; 17 Pick. 134; 2 Bailey, R. 24;
8 Conn. 254.
Credit. Mutual credit. 1 Atk. 228; 7 T. R. 378; Montag. on Set-off, 48; 8
Taunt. 22; S. C. 4 Eng. Com. Law Rep. 4; 1 Marsh. R. 190; S. C. 4 Eng. C.
L. 335.
Creditors and subsequent purchasers. 5 Cranch, 165.
Criminal proceeding. 2 Q. B. 1.
Cross. 5 Pick. 163.
Cruise of three months. 2 Gallis. 526.
Cultivation. 2 N. H. Rep. 56.
Curby hock. Oliph. on Horses, 10.
Currency. 1 Ohio R. 119.
Current money. 1 Dall. 126, 176.
Current rate of exchange to be added. 2 Miles, R. 442, 443.
Current lawful money. 1 Dall 175.
Current bank notes. 1 Hamm. R. 178. See also 1 Hamm. R. 531; 1 Breese, R.
152; 3 Litt. R. 245; 19 John. R. 146; 1 Dall. 126, 176; 1 Ohio R. 119.
Current bank money. 5 Humph. R. 140.
Curricle. Anthon, 114.
Cutting. Russ. & Ry. Cr. Cas. 104.

Damages. 5 Cowen, 161.
Damna. Bac. Ab. Costs, (L.)
Dangerous weapon. 1 Baldw. 78.
Dangers of the navigation. 9 Watts, R. 87.
Date. Co. Litt. 46, b, note (8); Bulstr. n. 177; Stiles, 382; Com.
Dig. Estates, G 8; Id. Bargain and Sale, B 8; Id. Temps, A; Vin. A.b.
Estates, Z a; Id. Time, A.
Day. (fraction of,) 1 Cowen, 594; 6 Cowen, 611; I Nott & McC. 405; 3 Penna.
R. 245.
Day of the date. Co. Litt. 46 b, note, (8); Powell on Powers, 498, et seq.
to 533. Vide Dale, above.
Day time. 9 Mass. 154.
Days. Running days. Working days. 1 Bell's Com. 577, 5th ed.
Dealings. M. & M. 137; 3 C. & P. 85; S. C. 14 E. C. L. R. 219.
Death. Swanst. 161.
Debt, contracted. 2 B. & C. 762; 9 E. C. L. R. 236.
Debts due to me at my decease. 9 Sim. 16.
Debts now due. 3 Leigh, R. 389. See 4 Rawle, R. 307.
Declare. 3 Co. 82, b i Co. Litt. 76, a, 290, b; 3 T. R. 546.
Deed. A good and sufficient deed. Wright's R. 644. A good and sufficient
warranty deed. 15 Pick. R. 546.
Default. Platt on Cov. 335.
Definitive. 1 Watts, 257.
Delivered. 7 D. & R. 131; 16 E. C. L. R. 277.
Demands in full. 9 S. & R. 123.
Demise. 2 Caines' R. 188; 8 Cowan's R. 36; 4 Taunt. 329; 8 Mass. R. 201; 8
Cowen, 36.
Depart (To). 3 M. & S. 461.
Depending. 5 Co. 47, 48; 7 Co. 30; 9 B. & C. 755; 4 Bing. 561; 8 B. & C.
635.
Deponent believes. 2 Str. 1209, 1226; 2 Burr. 655; 1 Wils. 231.
Descendants. 3 Bro. C. C. 367.
Descent. 2 Pet. R. 94; 1 S. & R. 224; 11 S. & R. 232.
Desire. 1 Caines' R. 84; 1 Bro. C. C. 489.
Deviation. 3 Ch. Com. L. 471.
Devise. All messuages, lands. 17 Ves. 64.
Devolve. 1 M. & K. 647.
Die by his own hands. 5 Mann. & Gr. 639.
Diligent inquiry. 1 Meigs, R. 70.
Discharge. Her receipt to be a sufficient discharge. 3 Bro. C. C. 362.
Discharge of all demands. Ward on Leo. 222; 2 Vern. 114, by Raithb.
Discount - Discounted. 15 Johns. 168; 8 Wheat. 338; 4 Yeates 223; 2 Cowen,
376; 19 Johns. 332.
Discounting. 5 Mann. & Gr. 590.
Disguring. Cheves, 157.
Disparagement. I Ired. Eq. R. 232.
Dispose of. 1 Watts, 386; 3 Atk. 287; Rob. on Wills, 3, Appx. note 3; 14
Pet. R. 529.
Disposing mind and memory. 2 South. 454.
Distiller. Pet. C. C. R. 180; 2 Wheat. 248.
Distribute. 11 S. & R. 232.
Divide. Boyle on Charities, 291.
Division. 4 T. R. 224, 459.
Do the needful. 4 Esp. 65; 4 Esp. R. 66.
Doctor. 2 Campb. 441.
Domus. 4 Leon. 16.
Doth bargain and sell. 4 Mont. R. 463.
Down the said creek with the several meanders thereof. 2 Ohio R. 309.
Due. 3 Leigb, 389; 4 Rawle, 307.
Due A B. 2 Penn. R. 67.
Due A B $94 on demand. 5 Day, R. 337; and see 2 Cowen, R. 536.
Due course of law. 3 Cranch, 300; 5 Cranch, 363; 1 Wheat. 447.
Due security. Sax. Ch. R. 259.
Duly honored. 7 Taunt. 167; 2 E. C. L. R. 63; 7 Taunt. R. 164.
Dunce. Cro. Car. 382; 1 Roll. Ab. 55; Bac. Ab. Slander, I.
Dying without children. 5 Day, 617.
Dying by his own hands. 5 Mann. & Gr. 639.
Dying without issue. 12 East, 253; 3 East, 303, 491; 1 Ves. Jr. 562; 10 Ves.
562; 17 Ves. 482.
Dying without lawful issue. 10 Johns. R. 12; 5 Day, 20; 2 Bro. C. C. 553.

Each. 1 B. & C. 682; 8 C. & R. 184; Watts, 51; 10 Serg. & R. 33.
Eadem. Co. Litt. 20 b.
Effects. 13 Ves. 39; 15 Ves. 326, 507; Cowp. 299; 1 Hill, S. C. 155. Estates
and effects. 1 Ves. & Beam. 406; 1 East. R. 53; 11
East, 290; Russ. & Ry. Cr. Cas. 66.
Emigrant laborers. 2 Man. & Gr. 574, 589; 40 E. C. L. R. 520, 528.
Ended. 10 S. & R. 391.
Engagement. 15 John. 395, 390.
Entreat. 2 Madd. 458; 2 Ves. & Bea. 378.
Equally. Cowp. 657; 3 Ves. 260; Dougl. 760; 9 East, 276.
Equally to be divided, this phrase construed. 1 Rop. Leg. 266; 1 Atk. 494; 3
Bro. C. C. 25; 5 Ves. 510; Addis. 310; 3 S. & R. 135; 1 Wils. R. 341; 1
Desaus. 329.
Erect. 8 Ves. 191; 3 Mad. R. 306; 2 Ves. 181; 2 Ves. 247; 1 Bro. C. C. 444;
Amb. 751.
Erection. 9 Car. & P. 233.
Erection and improvements. 2 Man. & Gr. 756, 757; 40 E. C. L. R. 612.
Errors excepted. Gow an Partn. 136; 3 Bro. C. C. 266.
Establishing. 3 Madd. R. 306; Boyle on Char. 93; 2 Cox, 387; S. C. 4 Bro. C.
C. 326.
Estate. 3 Cranch, 97; 3 Yeates, 187; 6 Binn. 97; 2 Binn. 20; 6 Johns. R.
185; 1 Wash. R. 96; 1 Call, 127; 3 Call, 306; 2 Nott & M'Cord, 380; 1
Dall. 226; 12 Serg. & Rawle, 54; 1 Yeates, 250, 380; 1 Salk. 236; 6 T. R.
610; 11 East, 246; 2 Ves. & Bea. 222; 2 Atk. 38; 3 Atk. 486; Ambl. 155,
216; 12 Mod 592; 1 T. R. 659, n.; 8 Ves. 604; 9 Ves. 137; 1 Cox, 362; 2
Ves. & Bea. 225; 19 Ves. 195; 3 Ves. & Bea. 160.
Estates and effects. 1 Ves. & Bea. 406. Temporal estate. 8 Ves. 617. All the
residue of my estate of every name and kind. 4 Law Rep. 256.
Every of them. 12 S. & R. 158.
Evidence. Conclusive Evidence. 1 Leigh's N. P. 307.
Except what shall be mentioned hereafter. Monr. 399.
Excepting. Perk. S. 439; Crabb on R. P. Sec. 157.
Execute. 2 Green's R. 350.
Exclusive of costs. 1 Edw. R. 483.
Expectation. Boyle on Char. 319.
Expense. 15 Serg. & Rawle, 55.
Extend. 1 Paine's R. 385.

Facsimiles. 7 Mann. & Gr. 399
Factory prices. 2 Conn. R. 69; 2 Mason, 89, 90.
Factum. 1 Leon. 310.
Faithful. 12 Pick. 303.
Falsely. 2 M. & Selw. 379; Noy. 35; Owen, 51.
Farcy. Oliph. on Horses, 42.
Family. Cooper's R. 317; 8 Ves. 604.
Farm. 6 T. R. 345.
Father, on the part of the. 1 Serg. & Rawle, 224.
Feeder. 13 Pick. 50.
Fifty pounds. (50 l) Sid. 151.
Filled. 1 Breese's R. 70.
Final. Final and conclusive. 5 Binn. 387; 6 Binn. 128.
Final judgment. 2 Pet. R. 264, 464.
Final decree. 8 Wend. 242.
Final settlement and decree. 4 Am. Dig. 283; 1 Halst. 195; 17 Serg. & Rawle,
59, 340; 14 Serg. & Rawle, 396; 1 Penn. R. 282; 2 Pet. R. 464.
Final process. 16 Pet. 313.
Fine. 5 M. & W. 535.
Firmly. 4 S. & R. 135; 1 Browne, R. 258.
First born son. 1 Ves. 290.
First cousin or cousins german. 4 M. & C. 56.
First had and obtained. 1 Serg. & Rawle, 89.
First or sterling cost. 1 Stuart's (L. C.) R. 215.
Fixed furniture. 6 C. & P. 653.
Flats. 8 W. & S. 442.
Flock. Inst. 4, 3, 1.
Flock of sheep. Inst. 2, 20, 18.
Fold course. Touchs, 93; Co. Litt. 6.
For. Dougl. 688; 1 Saund. 320, n. 4; Willes, 157.
For and in consideration of dollars. 7 Verm. 522; 6 Verm. 411.
For such times as we think fit. 1 Chit. Com. Law. 495.
For value received. 18 John. 60; 8 D. & R. 163; S. C. 5 B. & C. 501.
For which he has not accounted. 4 Burr. 2126; 1 T. R. 716.
For whom it may concern. 1 Pet. R. 151.
Foreign bills. 19 John. R. 146.
Foreign part, place. 2 Gall. R. 4; 19 John. 375.
Foreign voyage. 1 Gall. R. 55, 142.
Foreign part. 19 Johns. 375; 4 Am. Law Journ. 101.
Foreign state. 5 Pet. 1.
Foreign vessel. 1 Gall. R. 58.
Foreigner. 1 Pet. R. 349.
Forever. 6 Cruise, 281; 4 Dane's Ab. c. 129, art. 2, Sec. 14.
Forthwith. I Mo. & Malk. 300; S. C. 22 E. C. L. R. 313; 9 C. & P. 706; S. C.
38 E. C. L. R. 299, 801; 12 Ad. & Ell. 672; S. C. 40 E. C. L. R. 158, 160,
161, 162; 7 Mann. & Gr. 493.
Forwards and backward. 2 New Rep. 434.
Four mills. 1 Mod. 90.
Fourth part of house in N. Cro. Eliz. 286; 1 Str. 695.
Fowl. 1 Russ. C. & M. 568.
Frame house filled with bricks. 7 Wend. 270.
Fraudulently. Willes, 584; 1 Chit. Pl. 376.
Free. 1 Wh. 335; 2 Salk. 637.
Free of average. 16 East, R. 214.
Free of particular average. 16 East, R. 14; 15 East, R. 559; Code de
Commerce, art. 409.
Free on board a foreign ship. 3 Campb. R. 270.
Freely to be enjoyed. Cows. 352; 3 Burr. 1895; 11 East, R. 220.
Freight. 1 Mason, R. 11, 12.
From. 1 Marsh. Ins. 261, a; 2 Cowen, 605, 606, n. 518; 15 Mass. 193; 1 S. &
R. 411; 8 S. & R. 496; 5 T. R. 283; 2 Saund. 158, b, n. 6; 5 Com. Dig.
335; 4 Cruise, 72; Greenl. Cas. 9; 6 W. & S. 328.
From and after. 9 Cranch, 104; 2 Cowen, 606 n.; 4 T. R. 659.
From the day of the date. Cowper, 717, 725.
From the date, 15 S. & R. 135.
From 1000 to 3000 bushels of potatoes. 4 Greenl. 497.
From thenceforth. 2 Mer. R. 431.
From and after the passing of the act. 4 T. R. 660.
Front to the river. 6 M. R. 19, 228,229; 8 N. S. 576; 9 M. R. 656.
Full and free. 1 Wh. 335.
Full cargo. 7 Taunt. 272.
Fully. Pow. on Morts. 83, 858.
Fur. 7 Cowen, 202.
Furniture. Amb. 605; 3 Ves. 311; 1 John. Ch R. 39,
Furniture at ___ 3 Madd. 276.
Future. 7 W. & S. 305; 2 Pa. St. R. 146.
Future increase. 3 Yerg. 546. See 2 Bibb, 76; 4 Hen. & Munf. 283.
Future conveyances. 2 P. St. R. 146.

Gamble. 2 Yerger, 472.
Geldings, cattle. 1 Leach, C. C. 73, n.
Gentlemen. 21Y. & C. 683; 21 Jurist, 152
Gift. I give this, note to A. 4 Ves. 565. I return to A his bond. 3 Ves.
231.
Gelding-horse. 3 Humph. 323.
Give. 2 Caines' Rep. 188; 7 John. R. 255; 11 John. R. 122; 5
Greenl. R. 227.
Give and grant. 1 Hayw. R. 251.
Given. I Harr. (N. J.) R. 286.
Giving testimony in a suit. 3 Harr. Cond. Lo. R. 157.
Giving way. 10 (Eng.) Jur. 1065.
Glass with care, this side up. 11 Pick. R. 41.
Glass eye. Oliph. on Horses, 44.
Good. 5 M. & W. 535.
Good and lawful men. 1 Blackf. R. 396..
Good note. 7 Verm. 67.
Good custom cowhide. Brayt. 77.
Good and sufficient deed. Wright, 644.
Good and sufficient warranty deed. 15 Pick. 546; 20 John. 130; 4 Paige R.
628. Good merchantable goods. 3 Campb. R. 462.
Good work. Wright, R. 47 1.
Goods. 2 Ves. Jr. 163; 3 Atk. 63; 1 P. Wms. 267; 2 P. Wms. 302; 1 Atk. 171,
177, 180, 182; 1 Ves. Jr. 237; 1 Bro. C. C. 127; 11 Ves. 666; 1 Marsh.
Ins. 319; 7 Taunt. 191; 2 B. & A. 327; 4 B. & A. 206; 9 East, 215; 5
Mason's R. 544.
Goods and chattels. 2 B. & A. 335; 1 Leigh's N. P. 244; 1 Yeates, 101; 2
Watts, 61; 8 Co. 33; 2 East, P. C. C 16, s. 37; 2 B. & A. 259, 327; 6
Bing. 363; 4 Mo. & P. 36; 1 Ves. sen. 363; 1 Atk. 165.
Goods and movables. 1 Yeates, R. 101.
Government security. 3 Younge & C. 397.
Government or other securities. 9 Sim. 104.
Grange. Co. Litt. 5; Plowd. 197; Touch. 93.
Grant, bargain, sell, alien, and confirm. 2 Caines' R. 188; 7 Johns. R. 258;
Com. Dig. Guaranty, A.
Grant, bargain, sell. 4 Dall. 441; 2 Binn. 09; 1 Rawle, 377; 1 Serg. & R.
50, 438; 4 Kent's Com. 460.
Grant and demise. 4 Wend. 502; 8 Cowen, 36; 9 Ves. 330.
Grantee. 1 Cowen, 509.
Ground. 1 Supp. to Ves. jr. 510.
Ground-rents. I Meriv. 26; 2 Str. 1020; 1 Bro. C. C. 76.
Growing. 4 Leon. 36.
Gutta serena. Oliph. on Horses, 44.

Habitable repair. 2 Mo. & Rob. 186
Half mile. 9 B. & C. 774.
Has bargained and sold. 4 Cowen, 225.
Have. 2 Bendl. 34.
Having. 2 Ves. 427; 11 Ad. & El. 273; 39 E. C. L. R. 80.
Having children. 7 T. R. 322; 7 Ves. 453.
He has reviewed landmarks. 10 S. & R. 18. See Minor, 138.
He is perjured. 1 Caines, 347. 2 Caines, 91.
He is forsworn. 1 Caines, 347.
He is a corrupt old tory. 2 Port. 212.
He keeps false books, and I can prove it. 17 John. 217; 5 John. 476.
He paying thereout. Dick. 444; 3 East, 590.
He shall be well satisfied. 2 John. Rep. 395.
He swore a lie before the church session, and I can prove it. 1 Penna. 12.
He swore a false oath, and I can prove it. 2 Binn. 60; 4 Bibb, 99; 2 Dall.
58.
Heir male. 4 Ves. 794; Id. 326.
Heirs. 1 Car. Law Rep. 484.
Heirs at law. 4 Rand. R. 95.
Heirs of the body, 2 Bligh, 49. Vide 4 T. R. 300; Id. 88; 8 T. R. 373; 3
Ves. jr. 257; 13 Ves. jr. 340.
Heirs female. Co. Litt. 24 b, n. 3; 5 Bro. Parl. Rep. 93; Goodtitle v.
Burtenshaw, Fearne, Rem. Appx. No. 1.
Heirs of the wife. 6 Yerg. R. 96.
Henceforth. 9 Serg. & Rawle, 133.
Her. 1 Desaus. R. 353.
Her increase. 1 Iredell, 460.
Her part aforesaid. 4 Dowl. & R. 387.
Hereinafter - Hereinbefore. 1 Sim. Rep. 173.
Hereditament. 1 Salk. 238,Mos. 242; 3 T. R. 358; 7 T. R. 558; 8 N. R. 505;
2 B. & P. 247, 251; 6 Nev. & M. 441; 4 Ad. & Ell. 805.
Head of a family. 2 How. S. C. Rep. 581, 590.
Hides. 7 Cowen, 202.
High seas. Russ. & Ry. 243; 2 Leigh, 109; 3 Mason's R. 290.
Him or His. 2 Ves. 213.
Hiring. 6 T. R. 452.
Holiday. 4 Clark & Fin. 234.
Homestead - Homestead farms. 7 N. H. Rep. 241; 15 John. R. 471.
Hope. Boyle on Char. 319.
Horse. 1 Scam. R. 304.
Horse-Gelding. 3 Humph. 323.
Horse, Mares and Colts - Cattle. 2 East, P. C. 1074; 1 Leach, C. C. 72.
Hotel keeper. 1 Carr. & Marsh. 458.
House. 7 Mann. & Gr.. 66, 122.
House I live in and garden to B. 2 T. R. 298.
Household goods. 3 Ves. jr. 310; 1 John. Ch. R. 329; 3 P. Wms. 335.
Household furniture. 2 Hall, R. 490.

I guaranty the payment of the within note at the insolvency of the drawers.
5 Humph. 476.
I return A his bonds. 3 Ves. 231.
I warrant this note good. 14 Wend. 231.
If. Touchs. 123; Co, Lit. 204; Id. 214 b
Immediate. 2 Lev. 77; 7 Mann. & Gr. 493.
Immediately. 4 Younge & Col. 511.
Immovables. Ward on Leg. 210.
Impedimentum. Bac. Tr. 211.
Impelitio. Bac. Tr. 211.
Implements. 9 Law Reporter, 207.
Improvement. 4 Pick. 204.
In all the month of May. 3 W. C. C. R. 140.
In actual military service. 3 Curt. R. 522; 7 Eng. Eccl. R. 496.
In current bank notes. 1 Ham. R. 178. See also 1 Ham. R. 531; 1 Breese, R.
152, Litt. R. 245; 1 Ohio R. 119; 1 Dall. R. 126, 176; 19 John. R. 146.
In default of such issue. 7 East, R. 521; 3 T. R. 484.
In fullest confidence. T. & R. 143
In like manner. Ward on Leg. 246; 4 Ves. 732; 1 Sim. & St. 517.
In manner aforesaid. Ward on Leg. 246; 5 Ves. 465.
In the fullest confidence. Turn. & Russ. 157.
In money or negroes. 4 Bibb, R. 97.
In the occupation of. 2 Bing. R. 456. 1 B. & C. 350.
In case of the death. Swanst. 162.
Income. 9 Mass. R. 372; 1 Metc. 75.
Inde. Co. Litt. 82 b.
Indebted. 15 Serg. & Rawle, 142;. 3 Caines' R. 323; 17 S. & R. 285.
Indefeasible title. 3 Bibb, R. 317.
Indirect. 2 Gill & John. 382.
Indorse. 7 Pick. 117.
Infamous crime. 1 Moody, Cr. Cas. 34, 38.
Inferior tradesmen. 1 Lord Raym. 149; Com. Rep. 26; 5 Mod. 307; Bac. Ab.
Costs, B.
Inhabitants of a neighborhood. 10 Pick. R. 367.
Insolvent circumstances. 2 Harr. Dig. 202; Chit. on Bills, 120; McClel. &
Yo. 407.
Instantly. 3 Perr. & Dav. 52; 8 Dowl. 157.
Intended to be recorded. 2 Rawle, 14.
Intent to defraud - Intent to deceive. Rob. Fr. Cony. 30; and see 8 John. R.
446; 12 John. 120; 2 John. Ch. R. 35; 4 Wheat. R. 466.
Intents and purposes. To all intents and purposes. 11 Ves. 530.
Investment. 15 Johns. 384, 392
Irregularly. 1 Cowen, 73 S, b.
Irreparable. 3 Mart. N. S. 25.
Is indebted to the plaintiff in trover. 1 H. Bl. 218.
Is indebted to the plaintiff upon promises. 2 Dougl. 467; and see Say, R.
109.
Issue. 3 Ves. & Bea. 67; 13 Ves. 340; 3 Ves. 421; 7 Ves. 522; 1 Dall. 47; 1
Yeates, 332; 3 Ves. 257; 1 Cox, 38. Failure of issue. 1 B. B. 1. Die
without issue. 17 Ves. 482.
Issuably. 3 Chit. Pr. 705.
It shall and may be lawful. 1 Edw. R. 84.
It shall be lawful. 8 N. S. 539.
It shall be lawful for the court. 1 John. Ch. R. 491.
Ita quod. Ld. Raym. 760.

Jewels. Ward on Leg. 221; Mos. 112.
Jewelry. 14 Pick. 370. Vide infra Trinkets.
Jockey. 8 Scott, N. S. 5S4.
Joint and equal proportions. Jointly. Ambl. 656; 1 Bro. C. C. 118; 2 Rop.
Leg. 267. Joint and several. 2 Day, 442; 1 Caines' Cas. 122; 1 Consts. R.
486; 1 Cox, 200; 4 Desaus. 148; 7 Serg. & Rawle, 356.
Judicial proceedings. 5 Ohio, 547; 3 M. R. 248; 4 M. R. 451; 6 M. R. 668; 7
M. R. 325; 9 M. R. 204, 325; 10 M. R. 1; L. R. 438; 3 N. S. 551; 5 N. S.
519.
Junior. 8 John. 549; 8 Conn. R. 293.
Just debts. 1 Binn. 209; 9 Mass. 62.
Justifiable cause. 1 Sumn. 194.

Kept. 4 Scamm. 168.
Kin. Next of kin. 15 Ves. 109; Id. 583; 3 Bro. C. C. 355. Next of
kin or heir at law. 4 Ves. 469. Next of kin, in equal degree. 12 Ves. 433.
King's enemies. 1 Leigh's N. P. 509.
King and being privy to. Platt on Cov. 338.

Laborer. 1 Lo. Rep. 268.
Lamb - Mutton. 1 Moody, Cr. Cas. 242; and see Russ. & Ry. 497.
Lampooner. 3 Lev. 248.
Last past - August last past. 3 Cowen, 70.
Last sickness. 20 John. 502.
Last will. 7 T. R. 138.
Law charges. 3 Mart. Lo. R. 282.
Law of the land. 2 Yerg. 554; 6 Penna. St. Rep. 87, 91; 4 Dev. 1.
Lawful. Lawful heir. 2 T. R. 720.
Lawful deed of conveyance. 2 Serg. & R. 499.
Lawful money. 1 Yeates, 349; 1 Dall. 126, 176.
Lawful, Shall be. 2 D. & R. 172; 4 B. & A. 271; 1 B. & C. 35, 8.
Lawful title. 1 Blackf. 380; 2 Greenl. R. 22; 10 John. R. 266.
Lawful deed. 2 S. & R. 498; Coxe, 106.
Lawful current money of Pennsylvania. 1 Dall. 124.
Lawfully demanded. 2 M. & S. 525.
Leaving children. 7 T. R. 332, and see 7 Ves. 453; 9 Ves. 204; 6 T. R. 307.
Vide Having Children.
Leasehold ground rents. Ward on Leg. 222; 1 Bro. 76.
Legal representatives. 3 Ves. 486; 3 Bro. C. C. 224; 1 Yeates 213; 2 Yeates,
585; 2 Dall. 205; 6 Serg. & Rawle, 83; 1 Anstr. 128.
Lend. 1 Hill's Ch. 37.
Lent.. Bac. Ab. Assumpsit F; 2 Wils. 141.
Let. 5 Whart. R. 278.
Level. 5 Ad. & El. 302; 4 Nev. & Man. 602.
Life estate. 500 to the sole use of N, or of her children, forever. 1 Cox,
341; vide 12 Ves. 295; 1 Rose, 200; 13 Ves. 486; 13 Ves. 445; 2 Eden, 323;
Amb. 499; 4 Bro. C. C. 541; 1 Bay, 447.
Limit and appoint. 5 D. & E. 124.
Limn. 3 Bro. C. C. 311.
Literary composition. Eden, Inj. 324.
Live and dead stock. Ward on Leg. 220; 3 Ves. 311.
Livelihood. 3 Atk. 399.
Living together. 1 Add. R. 476; 3 Add. R. 277; 2 Tyrw. 76; 2 Cr. & J. 66;
Rogers' Eccl. Law, tit. Marriages.
Loaded arm. 1 Carr. & Kirw. 530; S. C. 47 Eng. C. L. R. 530.
Lost or not lost. 1 Marsh. Ins. 332; Park, Ins. 25; 5 Burr. 2803; Wesk. 345.
Loaf sugar. 1 Sumn. R. 159.
Lot No. 54. 1 Verm. R. 336; 18 John. R. 107; 5 N. R. Rep. 58.
Lots. 4 Ohio, 5.
Lying at the wharf. 2 McCord, 105.

Made. 1 Cranch, 239.
Made his note to the plaintiff for $760. 1 Breese's R. 122.
Magistrate. 13 Pick. 523.
Make over and grant. 18 John. 60; 3 John. R. 484.
Maintenance. 4 Conn. R. 558; 2 Conn. R. 155; 2 Sandf. Ch. R. 91. See
Support.
Mange. Oliph. on Horses, 46.
Mankind. Fortescue. 91.
Mare. 1 Leach, 72; 2 W. Bl. 721; 2 East, P. C. 1074.
Manner or Seaman. 2 Curt. Eccl. R. 336.
Mark. Trade mark. See 19 Pick. 214.
Married. Dying unmarried; without being married, and having children. 1 Rop.
Leg. 412; 3 Ves. 450, 454; C, 7 Ves. 454.
Matter in controversy. 2 Yeates, 276; 1 Serg. & Rawle, 269; 5 Binn. 522; 3
Dall. 404; 2 Dall. 260, n.
Matter in dispute. 3 Cranch, 159.
Matters in difference. 5 Mass. 334.
May. 1 Saund. 58, n. 1; 5 Johns. Ch. R. 101; 5 Cowen, 195; 14 Serg. & Rawle,
429; 1 E. C. L. R. 46; 1 Pet. R. 46.
May assign. May suggest. Ib.; St 8 and 9 W. 3, c. 11, s. 8.
Meadows. 5 Cowen's R. 216; Co. Litt. 4, b.
Means. Platt. on Cov. 334-5.
Medals. Ward. on Leg. 221; 3 Atk. 201.
Merchandise. 8 Pet. 277.
Merchantable. 3 Campb. R. 462.
Merchantable quality. 20 Wend. R. 61.
Merits. 3 Watts & Serg. 273.
Mess. 2 Russ. C. & M. 360.
Mess Pork of Scott & Co. 2 Bing. N. C. 668.
Messuage and house. Cro. Eliz. 89; 2 Ch. Cas. 27; 2 T. R. 498; 1 Boss. &
Pull. 53.
Mill. 5 Serg. & Rawle, 107.
Mill privilege. 4 Shepl. R. 63.
Mill saw. 1 Fairf. R. 135.
Mill site. 15 Pick. 57; 6 Cowen, R. 677; 11 John. R. 191.
Minerals. 5 Watts, 34.
Misapply. 12 Ad. & Ell. 140; 40 E. C. L. R. 140.
Misnomer. 16 East, 110; 2 Stark. N. P. C. 29; Dunl. Pr. 238; 3 Camp. 29; 2
Caines' R. 362; 13 John. 486.
Mobilier. 3 Harr. Cond. R. 430.
Molest. Mo. 402; S. C. Cro. Eliz. 421.
Money. 15 Ves. 319; 3 Meriv. 691; 1 John. Ch. R. 231.
Money only. 7 T. R. 539, 549.
Money - Moneys. 14 John. R. 12.
Money deposited in court. 2 Gall. R. 146.
Money in the funds. 5 Price, R. 217.
Moneys. 1 John. Ch. R. 231.
More or less. 2 Pow. Mortg. 445, a, note; 2 Hen. & Munf. 164; 1 Ves. & B.
376; 2 Barn. & Adol. 106; S. C. 22 E. C. L. R. 36; 1 Yeates, 309; 6 Binn.
102; 4 Serg. & Rawle, 493; 1 Serg. Rawle, 166; 5 Serg. & Rawle, 260; 1
Munf. 336; 2 Saund. 305, b, n.; 4 Mason's R. 418; Sugd. Vend. 231-2; Ow.
133; 1 Campb. 337.
Mountain. 1 Str. 71; 1 Burr. 629.
Movables. Ward. on Leg. 210; Off. Ex. 252; Sir W. Jo. 225.
Mr. 3 C. & P. 59; S. C. 1 M. & M. 118.
Mrs. 3 C. & P. 59; S. C. 1 M. & M. 118.
Mutual credit. 8 Taunt. 499; 4 Burr. 2222; Cooke's Bankr. Laws, 536; 4 T. R.
211; 2 Smith's Lead. Cas. 178, and the cases there cited.
My fishing place. 1 Whart. R. 1.37.
My half part. 11 East, R. 163.
My inheritance. Hob. 2; 7 East, R. 97.
My seven children, naming only six. 2 Coxe, R. 164.
My property. 17 John. R. 281.
My house, and all that shall be in it at my death. 1 Bro. C. C. 129, n.; 11
Ves. 662,
My right heirs on the part of my mother. 4 Ves. 766.

Name and blood. 15 Ves. 92.
Navicular disease. Oliph. on Horses, 47.
Navigable river. 6 Cowen, 528; 21 Pick. R. 344.
Necessary. 4 Wheat. 413, 418; 7 Cowen, 606 2 A. K. Marsh. R. 84.
Necessary charges. 3 Greenl. 191.
Necessary implication. 1 Ves. & B. 466.
Necessary tools of a tradesman. 2 Whart. 26.
Needful. 4 Esp. R. 66.
Nerving. Oliph. on Law of Horses, 47; R. & M. 290.
Neurotomy. Oliph. on Horses, 47; R. & M. 290.
Never. 2 Atk. 32; Bayl. Bills, 4; Chit. Bills, 54; 3 Q. B. 239, 242.
New Manufacture. 4 Mann. & Gr. 580.
Next. Stra. 394; Cro. Jac. 646, 677: Bac. Ab. Conditions, P. 3; 2 John. 190;
9 Cowen, 255.
Next of kin. 15 Ves. 109; 15 Ves. 536; 3 Bro. C. C. 355; Id. 64; 14 Ves.
372.
Next of kin, or heir at law. 4 Ves. 469.
Next of kin, equal in degree. 12 Ves. 433.
Non-arrival. 2 B. & C. 564.
Non-resident. 4 L. R. 11.
Northerly. 1 John. 156. See 3 Caines, 293.
Northward. 3 Caines' R. 293; 1 John. R. 158.
Not liable for any damage to or from her sheathing. 20 Pick. 389.
Note or Notes. 7 Serg. & Rawle, 465.
Notes current in the city of New York. 19 John. R. 14 6.
Notice of action. 1 Holt's N. P. R. 27.
Now. 3 Penna. R. 288, 9; 4 Mann. & Gr. 99, 100.

Occupation. 7 W. & S. 330.
Occupied. 1 Breese's R. 70.
Of. 2 T. R. 431.
Of and concerning. 4 M. & Selw. 169; 3 Caines' R. 329; 5 Johns. R. 211; 7
Johns. R. 264; Id. 359; 3 Binn. 517; 1 Binn. 337. 5 Binn. 218.
Offence. 9 Car. & P. 525; S. C. 38 E. C. L. R. 222.
Office, or public trust. 2 Cowen, 29 n.; 20 Johns. 492; 1 Munf. 468.
Office of trust. 6 Blackf. 529.
On. 2 T. R. 431.
On arrival. 2 Campb. R. 532; Id. 327.
On condition. 4 Watts & Serg. 302.
On shore. 1 Bos. & Pull. 187.
On a stream. 3 Sumn. R. 170.
On the trial. 2 Whart. 159.
On payment of costs. 6 Cowen, R. 582; 5 J. J. Marsh. 243.
One day after date. 2 P. S. R. 496.
One pair of boots. 3 Harring. 559.
One whole year. 12 Mass. 262.
Once a week. 4 Peters' R. 361; 2 Miles, R. 150, 151.
One thousand dollars to the children of. 9 Verm. R. 41.
Openly. 2 Inst. 57; Bac. Ab. Merchant, &c.
Or, construed and. 2 Rop. Leg. 290; 1 P. Wms. 483; 2 Cox, 213; 2 P. Wms.
383; 2 Atk. 643; 6 Ves. 341; 2 Ves. Sen. 67; 2 Str. 1175; Cro. Eliz. 525;
Pollexf. 645; 1 Bing. 500; 3 T. R. 470; 1 Ves. Sen. 409; 3 Atk. 88, 85; 1
Supp. to Ves. Jr. 485; 2 Id. 9, 43, 114; 1 Yeates, 41, 319; 1 Serg. &
Rawle, 141; 1 Wend. 396; 6 Toull. n. 703 and 704. Vide Disjunctive.
Or any other person. 15 Wend. 147.
Or by any other person. 3 Marrh. 720.
Or elsewhere. 2 Gall. R. 477.
Or otherwise. 1 Chit. R. 205, 6; Hawk. c. 2 5, s. 4. 1
Orchard. Cro. Eliz. 854.
Ordained minister. 4 Conn. 134.
Order, in chancery pleading. 7 Sim. R. 17.
Original. 6 Wheat. 396; 5 Serg. & Rawle, 549. Vide Courts of the United
States.
Orphan. 3 Mer. 48; 2 Sim. & Stu. 93.
Other. 1 Brock. R. 187.
Other offices. 1 B. & C. 237. See 5 T. R. 375, 379; 5 B. & C. 640; 8 D. &,
R. 393.
Other writing. 1 Rawle, 231.
Otherwise. 1 Gall. R. 39.
Out of the State. 1 Johns. Cas. 76.
Out of the country. 3 Bibb, 510.
Out of their joint funds, according to the articles of association. 4 S. &
R. 356.
Outfits. 1 Story, R. 603.
Out-house. 5 Day, 151; 4 Conn. 446.
Over the sea. Kirby, 299.
Overseers. 7 Mann. & Gr. 481,
Own use. 4 Rawle, R. 68.
Owned by them. 5 Cowen, 509.
Owner. 6 Nev. & M. 340.
Oxgang. Touchs. 93; Co. Litt. 5.
Oyster spat. 12 Ad. & Ell. 13; S. C. 40 E. C. L. R. 15.

Passage room. 2 Ld. Raym. 1470.
Passing through the town. 6 Ohio, R. 142.
Payable. 14 Ves. 470; 16 Ves. 172; 2 Supp to Ves. jr. 296; 13 Ves. 113; 3
Ves. 13; 2 C. 305.
Paying. Roll. Ab. 411; Bac. Ab. Conditions, A; Lane, 56, 78.
Paying thereout. Pick. 444.
Paying yearly and every year. 3 Lom. Dig. 187.
Pearls. Dig. 34, 2, 18.
Peas. Bac. Ab. Merchant, &c. 1.
Pencil, writing. 1 Eccl. R. 406, 7; 5 B. & C. 234; 7 Dowl. & R. 653; 1
Stark. R. 267; 1 Phillim. R. 52, 53; 2 Phillim. R. 173.
Per annum. Bac. Ab. Covenant, F
Percussit. 2 Virg. Car. 111.
Perishable articles. 7 Cowen, 202.
Permitting and suffering. 6 Barn. & Cres. 295; Platt on Cov. 338.
Perpetual. 2 Bro. & B. 27; S. C. 6 B. Moo. 159.
Person liable. Eden's Bankr. Law, 146.
Personal estate. 1 Ves. & Bea. 415; 4 Ves. 76; 1 M'Cord, 349; 1 Dall. 403; 2
Rawle, 162; 5 Mason, 544.
Personal ornaments. 1 Beav. R. 189.
Personal representatives. 1 Anst. 128.
Person of color. 3 Iredell, 455.
Pigs - Cattle. Russ. & Ry. Cr. Cas. 76.
Pilfering. 4 Blackf. 499.
Piratical. 2 How. S. C. 210.
Place. Office. 1 Munf. 468.
Places. 5 T. R. 375,379; 5 B. & C. 640; 8 D. & R. 393. See 1 B. & B. C. 237.
Pladtum. Skin. 550, 554.
Plant. 1 Mo. & Malk. 341; S. C. 22 E. C. L. R. 330.
Plantation. 2 Humph. 315.
Planting. 7 Conn., 186.
Pleasure. At her pleasure. Boyle on Char. 307.
Pleasure carriage. 9 Conn. 371; 11 Conn. 185; 18 John. 128; 19 John. 442.
Plow land. Co. Litt. 5; Plowd. 167; Touchs. 93.
Plundered. 16 Pick. 1.
Poll-evil. Oliph. on Law of Horses, 49.
Poor. Poor kindred. Boyle on Char. 31; 17 Ves. 371; 1 Caines' R. 59.
Poor inhabitants. Ambl. 422.
Port. 2 B. & Ad. 43; S. C. 22 E. C. L. R. 23.
Port of destination. Port of discharge. 5 Mason, 404.
Possess 3. 1 Dev. & Bat. 452.
Possession. Coming into possession. 3 Br. C C. 180.
Postea. 1 Saund. 287.
Power coupled with an interest. 8 Wheat. 203; 2 Cowen, 196.
Power of attorney. 8 Pick. 490.
Praedict. Co. Litt. 20 b.
Preference. 1 Paine, 630.
Premises. All the premises. 17 Ves. 75; 1 East, R. 456.
Presented. 2 Hill, R. 582.
Price. A price clear of all expenses. 2 V. & B. 341.
Prime cost. 2 Mason, 53, 55.
Prior in date. 3 Day, 66.
Prison charges. 4 Greenl. 82.
Private charity. Turn. & Russ. 260.
Privileges and appurtenances. 14 Mass. 49; 17 Mass. 443.
Pro. A B, C D. 11 Mass. R. 97.
Proceed to tea. 9 Serg. & Rawle, 154; 2 Pet. Adm. Dec. 97, 93.
Proceeding. 2 East, R. 213; 3 Com. Dig. 49, note; 1 Hall, 166; 8 Wend. 167.
Proceedings thereupon. 16 Pet. 303, 313.
Proceeds. 4 Mason, 529.
Procreatis - Procreandis. 1 M. & S. 124.
Procure. 1 Car. & Marsh. 458.
Procurement. Platt. on Cov. 337.
Produce of a farm. 6 Watts & Serg. 269, 280.
Profession. 7 W. & S. 330.
Promise. "I don't consider the land as yours prove your right to it, and
I'll pay you for it." 9. Dow.. & R. 480; S. C. 22 E. C. L. R. 394. "I
promise never to pay." 2 Atk. 32; Bayl. Bills, 4; Chit, Bills, 54.
Promise to pay out of the proceeds of the next crop. 2 L. R. 259.
Promissory note. Due A B three hundred and twenty-five dollars, payable on
demand. 10 Wend. 675. To pay P D, or plaintiffs, or his or their order. 2
B. & A. 417. "I, B C, promise to pay E F the sum of œ51 or his order,"
signed, "B C or else H B." 4 B. & A. 679; 6 E. C. L. R. 563.
Proper county. 2 Yeates, 152; 7 Watts, 245.
Property. 6 Serg. & Rawle, 452; 17 Johns. R. 281; 6 Binn. 94; 18 Ves. 193;
14 East, R. 370; 2 N. R. 214.
Property, personal and real. 1 Speers, Eq. Cas. 51, 56.
Property on board, 2 Metc. 1.
Proportion. Charge on estates in equal proportions. 3 Br. C. C. 286. In just
and equal proportion. 7 Serg. & Rawle, 514.
Proprietor. 6 Nev. & M. 340; Wordsw. Jo. St. Co. 338.
Prosecute with effect. 12 Mod. 380; 2 Selw. N. P. 1013, note.
Proviso. Com. Dig. Condition, A 2; Lit. s. 329; Id. 203, b; 2 Co. 71, b; 1
Roll. Ab. 410, l. 30
Public house. 4 Leigh, 680.
Public policy. 9 E. C. L. R. 452.
Public sale. 4 Watts, R. 258.
Public trust. 20 John. 492; 2 Cowen, 29, n.
Public trade. 3 Q. B. 39.
Publish. 2 Dev. 115.
Published. 3 M. & W. 461; 9 Bing. 605; 5 B. & Adol. 518: 6 M. & W. 473; 8 D.
P. C. 392.
Purchasing. 6 Ves. 404.

Quamdiu. Orl. Bridg. 202.
Quantity and boundary. 2 Caines' Rep. 146.
Quit. 2 N. H. Rep. 402.
Quotation. Eden. Inj. 327, 328.

Race-field. 9 Leigh, 648.
Raffie. 2 Rep. Const. Conn. 128.
Raise. 1 Atk. 421; 2 Vern. 153.
Rascal. 2 Rep. Const. Ct. 235.
Real action. 10 Pick. 473; and see 16 Mass. 448; 7 Mass. 476; 4 Pick. 169; 8
Greenl. 106, 138.
Real cost. 2 Mason, 53, 55.
Realm. 1 Taunt. 270; 4 Campb. 289; Rose, 387.
Reasonable Notice. 1 Penn. R. 466. Vide Reasonable time, in the body of this
work.
Rebuild. 3 Rawle, 482.
Receipts. 2 Gill & Johns. 511.
Received for record. 3 Conn. 544; 1 Root, R. 500; 2 Root, R. 298; Kirb. 72.
Received note in payment. 2 Gill & John. 511.
Recollect. 1 Dana, R. 56.
Recommendation. 2 Ves. jun. 333, 529; 3 Ves. 150; 9 Ves. 546; Jacob's R.
317; 1 Sim. & Stu. 387.
Record and Docket. 1 Watts, 395.
Recovered in a suit. 5 Wend. R. 620.
Recovery. 2 Caines' R. 214; 1 Paine, 230,238.
Rectifier of spirits. 1 Pet. C. C. R. 180.
Refine. 1 Pet. C. C,. R. 113.
Refuse. Renounce. 3 Rawle, 398.
Refuse to execute. 10 E. C. L. R. 65; 1 Har. Dig. 442.
Relations, see Legatee. 2 Ch. Rep. 146, 394; Pr. Ch. 401; Cas. Temp. Talb.
215; 1 P. Wms. 327; 2 Ves. jr. 527; Ambl. 70, 507, 595, 636; Dick. 50,
380; 1 Bro. C. C. 31; 3 Bro. C. C. 64, 234; 2 Vern. 381; 3 Ves. 231; 19
Ves. 323; 1 Taunt. 163; 3 Meriv. 689; 5 Ves. 529; 16 Ves. 206; Coop. R.
275; Com. Dig. App. Devise of personal property, viii. 30, 31, 32; 9 Ves.
323; 3 Mer. 689. Next relations, as sisters, nephews and nieces. 1 Cox,
264. Poor relations. Dick. 380.
Release and forever quit claim. 10 Johns. R. 456.
Remaining untried. 5 Binn. 390.
Rents. 2 Penn. St. R. 165.
Rents and profits. 2 Ves. & Bea. 67; 6 Johns. Ch. R. 73; 1 Sand. Uses and
Trusts, 318; 1 Ves. 171; 2 Atk. 358.
Repairs. 1 M 'Cord, 517.
Reprises. 1 Yeates, 477; 3 Penna. 477
Request. 2 Bro. C. C. 38; 3 Ver. & Bea. 198; 5 Madd. 118; 18 Ves. 41; 1
Moody Cr. Cas. 300.
Resident. 20 John. R. 211; 2 Pet. Adm. R. 450; 2 Scam. R. 377; 20 John. 208;
7 Mann. & Gr. 9.
Residence. 8 Wend. 45.
Residuary. 11 Ves. 92.
Residue. surplus, &c. 2 Atk. 168; 11 Ves. 330; 14 Ves. 364; 15 Ves. 406; 18
Ves. 466; Dick. 477; 1 Bro. C. C. 189; 4 Bro. C. C. 207; 1 Ves. jr. 63; 1
Wash. 45, 262; 3 Cal. 507; 3 Munf 76; 2 Des. Ch. R. 573; Prec. Ch. 264; 2
Vern. 690; Boyle on Char. 399, 8 Ves. 25-6.
Respective, Respectively. 2 Atk. 121; 3 Bro. C C. 404; 1 Meriv. 358; 2 East,
41; Cowd. 34.
Rest. Alleyn, 28; 3. P. Wms. 63, n.
Rest and Residue. 2 Lee's Eccl. R. 270; 6 Eng. Eccl. Rep. 122; 11 East, R.
164.
Retained. 5 D. & E. 143,
Reversion. If the reversion should never fall to the testator. 10 Ves. 453.
Revising - correcting. 2 Shepl. 205.
Revoked. 1 Cowen, R. 335; 16 John. R. 205.
Rice. 5 B. & P. 213.
Right. 2 Caines' R. 345.
Right and title in the deed. 2 Ham. 221.
Right, title, and interest. 4 Pick. 179.
Ringbone. Oliph. on Law of Horses, 48, 50.
River-feeder. 13 Pick. 50.
Rolling-mill. 2 Watts & Serg. 390.
Roots. 7 John. R. 385.
Running days. 1 Bell's Com. 577, 5th ed.

Said - saith. 3 Dowl. P. C. 455; 5 Tyr. 391 1 Gale, 47.
Said 1 Chit. Cr. Law, *174; 2 Car. Law Rep. 75.
To sail. 3 M. & S. 461,
Sail from. 3 B. & C. 501.
Same. Cro. Eliz. 838.
Sand crack. Oliph. on Law of Horses, 13.
Sanguini Suo. Bac. Ab. Legacies and Devises, c 1.
Sans recourt. Chit. Bills, 266; 1 Leigh's N. P. 405.
Sarsaparilla. 7 John. R. 385.
Satisfied. 1 M'Cord, Ch. 53; 2 John. 395.
Satisfactory proof. 10 John. R. 167.
Saving. 2 Roll. Ab. 449.
School. 1 M. & S. 9.5; Vin. Ab. h.t.
Schools of learning. Wilm. Opin. & Judgm. 14; 2 Vern. 387; 14 Ves. 7; Sim.
109; Jac. 474.
Sea stores. 1 Baldw. R. 504.
Sealed. Harp. R. 1.
Security. 13 John. 481; 3 Blackf. 431.
Secured to be paid. 1 Paine's R. 518; 12 Wheat. 487.
See him paid. Fell on Guar. 36-7; 1 Ld. Raym. 224; Cows. 227; 2 T. R. 86.
Seised. Bac. Ab. Uses and Trusts, part 1, D.
Sell. To sell. Boyle on Char. 307; 9 Greenl. 128.
Sell and convey. 3 Fairf. 460. See also 2 Greenl. 22.
Sell for at the pits mouth. 7 T. R. 676; S. C. 1 B. & P. 524; 5 T. R. 564.
Seen. 2 Hill, R, 582.
Semini suo. Bac. Ab. Legacies and Devises, C 1.
Servant. 5 Lo. Rep. 15.
Served. 6 S. & R. 281.
Settled. 2 Leach, 910.
Setting fire. 2 East, P. C. 1020.
Seventh child. 3 Bro. C. C. 148; S. C. 2 Cox, 258.
Seventy acres, being and lying in the southwest corner of section. 2 Ham.
327; see 4 Monr. 63.
Shall. 1 Vern. 153.
Shall be lawful. 2 D. R. 172; 4 B. & A. 271; 1 B. & C. 35; 2 T. R. 172; 1 B.
& C. 85; 4 B. & A. 271; 3 N. S. 532.
Shall and may. 1 E. C. L. R. 46; 5 John. Ch. R. 101; 5 Cowen, 193; 1 Cr. &
Mees. 355; 3 Tyrrw. 272.
Shall sell at the pit's mouth. 7 T. R. 676.
Share. 3 Mer. 348.
Share and share alike. 3 Desaus. 143.
Ship damage. Abbott on Shipm. 204; Bac. Ab Merchant, &c. H.
Shop. 5 Day, 131; 4 Conn. 446.
Shovel plough. 3 Brev. 5.
Should be secured. 5 Binn 496.
Signing. I, A B, do make this my will. 18 Ves. 183.
Silks. 1 Carr. & Marsh. 45.
Silver dollars - Good, wares, and merchandise 2 Mason, R. 407.
Sitfasts. Oliph. on Law of Horses, 53; 9 M. & W. 670
Six handkerchief. 1 Moody, Cr. Cas. 25.
Sixty pounds in specie, or tobacco at specie specie. Mart. S. C. R. 20.
Skins. 7 John. R. 385; 7 Cowen, R. 202.
So long as wood grows or water runs. 1 Verm. 303.
Sold. 3 Wend. R. 112.
Sold and conveyed. 2 Serg. & Rawle, 473.
Sole. 1 Madd. R. 207; 1 Supp. to Ves. jr. 410; 4 Rawle, 66; 10
Serg. & Rawle, 209; 4 W. C. C. R. 241; 3 Penna. R. 64, 201.
Solvent. 10 Ves. 100; Gow on Partn. 409.
Soon as convenient. 1 Ves. jr. 366; 19 Ves. 387.
Southwest corner of _________ section. 2 Ham. 327.
Spawn. 12 Add. & Ell. 13; S. C. 40 E. C. L. R. 15.
Specially. 1 Dall. 208; 1 Binn. 254.
Specifically. 16 Ves. 451.
Splint. Oliph. on Law of Horses, 55; 1 M. & Sco. 622.
Stab, stick and thrust. 2 Virg. Cas. 111.
Stable. 1 Lev. R. 58; 3 M. & R. 475.
Stage. Stage, coach. 8 Adol. & Ell. 386; 35 E. C. L. R. 409; 9 Con. 371; 11
Conn. 385.
Steam boiler. Wright, R. 143.
Sterling. 1 Carr. & P. 286.
Stock in the funds. 5 Price, R. 217.
Stock in trade. Bunb. 28.
Store. 10 Mass. 153. See 4 John. 424; 1 N. & M. 583; 2 N. H. Rep. 9.
Straw. 4 C. & P. 245; S. C. 19 Eng. Com. Law Rep. 367; 1 Moody, C. C. 239.
Stretching along the bay. 2 John. R. 357; Harg. Law Tracts, 12.
Strict settlement. 4 Bing. N. C. 1.
Stringhalt. Oliph. on Law of Horses, 56.
Subject to the payment of rent. 5 Penn. St. Reps. 204.
Subject to incumbrances. 2 P. Wms. 385; 1 Atk. 487; 2 P. Wms. 659, note by
Cox.
Submission - consent. 9 C. & P. 722; S. C. 38 E. C. L. R. 306.
Subscriber. 6 B. & Cr. 341.
Subscription list. 2 Watts, 112.
Substantial inhabitants. 2 M. & R. 98; S. C. 8 B. & Cr. 62.
Such. 2 Atk. 292.
Suit at law. 23 Pick. 10
Sum in controversy. 9 Serg. & Rawle, 301.
Summit of a mountain. 3 Watts & Serg. 379.
Superfine flour. 9 Watts, R. 121.
Supersede. 1 Pick. R. 261.
Superstitious use. 1 Watts, 224.
Support. A decent and comfortable support and maintenance out of my estate,
in sickness and in health during my natural life. 2 Sandf. Ch. R. 91.
Surety. 1 Scam. R. 35.
Surplus. 18 Ves. 466; 3 Bac. Ab. 67; 2 Pa. St. R. 129.
Survivors. 17 Ves. 482; 5 Ves. 465.
Survivor and survivors. 3 Burr. 1881; 8 B. & Cr. 231.
Suine. 15 Mass. 205.

Take. 2 Pet. R. 538.
Take and fill shares. 1 Fairf. 478.
Taken out of the state. 1 Hill, 150.
Tapering. 2 Stark. N. P,. C. 249.
Taxes and other public dues. 2 Leigh, R. 178.
Tea kettle and appurtenances. Ward on Leg. 222; Mos. 47; 1 Eq. Ab. 201.
Ten acres of peas. 1 Brownl. 149.
Terra. Cro. Jac. 573; Palm. 102; 4 Mod. 98; Cowp. 349.
Testamentary estate. 2 H. Bl. 444; Vide 6 B. Moo. 268; S. C. 3 Bro. & B. 85.
That is to say. 1 Serg. & Rawle, 141.
The county aforesaid. 2 Bl. R. 847.
The dangers of the river excepted. 1 Miss. R. 81; 2 Bailey's R. 157.
The said defendant. 2 Marsh. R. 101; S. C. 6 Taunt. R. 122, 406.
The said E. R. 9 C. & P. 215; S. C. 38 E. C. L. R. 87.
The said N. 2 Car. Law Repos. 75.
The said property. 3 Mann & Gr. 356.
The parties shall abide by the award of arbitrators, 6 N. H. Rep. 162.
The said plaintiff. 2 Marsh. R. 101; S. C. 6 Taunt. R. 122, 406.
The same rents and covenants. 1 Bro. P. C. 522; 3 Atk. 83; Cowp. 819; 2 Bro.
Ch. R. 639, note.
Them. 9 Watts, R. 346; Orl. Bridg. 214.
Them or any of them. 3 Serg. & Rawle, 393.
Then. Then and there. 2 Atk. 398; 4 Ves. 698, 1 P. Wms. 594; 1 Brown's C. C.
190; Ld. Raym. 577; Id. 1,23.
Then next. 9 Cowen, 255.
Thereabouts. Moll. 232.
Thereafter. 13 L. R. 556.
Thereafter built. 2 Leigh, 721.
Thereinbefore mentioned. Ward. on Leg. 105, 344; 7 Ves. 391.
Thereafterwards continuing his said assault. 2 Mass. 50.
Therefore the defendant is indebted. 1 T. R. 716; 2 B. & P. 48.
Thing patented. 1 How. U. S. 202.
Thereunto belonging. 22 E. C. L. R. 171.
This indenture. 2 Wash. 58.
Things. 11 Ves. 666.
Third parties. 1 N. S. 884.
This demise. 2 Bl. R. 973.
Thrush. Oliph. on Law of Horses, 59.
Thousand. 3 B. & Ad. 728.
Through. 7 Pick. R. 274.
To be kept by the secretary. 1 Scott's N. R. 215.
Timber. 7 Johns. R. 234; 1 Madd. Ch. 140, n.
Time. Till she arrives. From her beginning to load. On the ship's arrival.
And is there moored twenty-four hours in good safety. 8 Chit. Com. Law,
462. Within four days. 15 Serg. & Rawle, 43. Time being. Ang. Corp. 284.
Title. An indefeasable title in fee simple, such as the state makes. 3 Bibb,
R. 317; 4 Shepl. R. 164.
To a stream. 3 Sumn. R. 170.
To be begotten. 1 M. & S. 124.
To be by her freely possessed and enjoyed. 12 S. & R. 56; Cows. 352.
To be signed and published by her, in the presence of, and to be attested by
two or more credible witnesses. Curt. Eccl. R. 1.
To be paid when in funds. Minor's R. 173; 7 Greenl. R. 126.'
To them. 9 Watts, 351, 352.
To do the needful. 4 Esp. R. 66.
To, from or by. 1 Shepley's R. 198.
To settle. 2 Miles, R. 1.
To his knowledge and belief. 1 H. Bl. 245.
To the best of his knowledge and belief. 8 T. R. 418; 1 Wils. 232.
To the legatees above named. 17 S. & R. 61.
To the order. 1 Watts. & Serg. 418.
To render a fair and perfect account, in writing, of all sums received. 1
Dougl. R. 382
To sue. 3 B. & C. 178, 1083.
To wait awhile. 1 Penna. R. 385.
Toll. 2 Show,. 34.
Took the oath in such case required by the act of congress. 5 Leigh's R.
743.
Tools. 2 Whart. 26.
Touch and stay. 1 Marsh. Ins. 188; 1 Esp. N. R. 610; Wesk. Ins. 548.
Transact all business. 22 E. C. L. R. 397; 1 Taunt. R. 349; 5 B. & Ald. 204,
210, 211; 1 Yo. & Col. 394.
Transaction. 7 Mann. & Gr. 538.
Treasonable practices. 1 Stuart's L. C. R. 4.
Tree. 2 Dev. 162.
Trees, woods, coppice-wood grounds, of what kind or growth soever. 4
Taunt. 316.
True value. 17 Wheat. R. 419; 1 Stuart's L. C. R. 419.
Trifling. 1 W. & S. 328; 14 S. & R. 349.
Trinkets. 1 Carr. & Marsh. 45.
Truly. 2 Brock. R. 484, 5.
Tunc. 5 Mann. & Gr. 696.
Turnpike Road. 20 Johns. R. 742.
Two years after demand. 8 D. & R. 347.

Unavoidable accident. 1 Brock. R. 187.
Understood. 2 Cox's Ch. R. 16.
Underwood. 2 Rolle's R. 485.
Unexecuted writ. 1 Barr. N. J. Rep. 154.
Unless. Boyle on Char. 291; 1 Mer. 102; 3 Id. 65, 79; 3 Burr. 1550.
Unmarried. 2 Supp. to Ves. jr. 43; 2 Barn. & Ald. 452. Without being
married. 7 Ves. 458.
Until. Cows. 571; 5 East, 250; Cas. t. Hard. 116. Until she hath moored at
anchor twenty-four hours in good safety. Park, Ins. 35; 1 Marsh. Ins. 262;
2 Str. 1248; 1 Esp. Rep. 412.
Unto and amongst. 9 Ves. 445.
Up the creek. 1 Wilc. R. 508.
Used. 1 Chit. Pr. 214.
Use till paid. Kirb. 145.
Useful invention. 1 Mason, R. 302; 4 Wash. C. C. R. 9.
Usque. 2 Mod. 280.
Usual clauses. 2 Chit. Com. Law, 227; 1 Mer. R. 459.
Usual covenants. Platt on Cov. 430.
Usual terms. 8 Mod. 308; Barnes, 330; 3 Chit. Pr. 705.
Usurped power. 2 Marsh. Ins. 700; 2 Wils. 363.
Usury. Vide 2 Rick. (2d ed.) 152, n. 1; 5 Mass. R. 53; 7 Mass. R. 36; 10
Mass. R. 121; 13 Mass. R. 443; 4 Day, R. 37; 2 Com. R. 341; 7 Johns. R.
402; S. C. 8 Johns. R. 218; 4 Dall. R. 216; 2 Dall. R. 92; 6 Munf. R. 430,
433; 3 Ohio R. 18; 1 Blackford's R. 336; 1 Fairfield, R. 315; 2 Chit. Cr.
Law, *549; 3 Ld. Raym. 36; Trem. P. C. 269; Co. Entr. 394, 435; Rast.
Entr. 689; Cro. C. C. 743; Com. Dig. Usury, C; 4 Bl. Com. 158; Hard. 420.

Vacancies. 2 Wend. 273.
Vacancy. 1 Breese's R. 70.
Valuable things. 1 Cox, t7; 1 Bro. C. C. 467.
Value received. 3 M. & S. 351; 5 M. & S. 65; 5 B. & C. 360; S. C. 11 Engl.
C. L. R. 252; 3 Kent, Com. 50; Maxw. L. Dict. h.t.; 1 Hall, 201; 1
Blackf. R. 41; 2 M'Lean, R. 213. True value. 11 Wheat. 419.
Vegetable production. 1 Mo. & Mal. 341.
Victual. 3 Inst. 195; Hale's P. C. 152; Cro. Car. 231 Bac. Ab.
Forestalling, B; 1 East, R. 169.
Victualler. 9 E. & E. 406; 6 Watts & Serg. 278.
Videlicet. 8 Ves. 194.
Village or town. Co. Litt. 5; Plowd. 168; Touchst. 92.
Voluntary assignment. 3 Sumn. R. 345.

Wantonness. 1 Wheel. Cr. Cas. 365; 4 W. C. C. R. 534; 1 Hill, 46, 363.
Warbles. Oliph. on Law of Horses, 53; 9 M. & W. 670.
Warehouse. Cro. Car. 554; Gilb. Ej. 57; 2 Rosc. R. Act. 484; 8
Mass. 490. Waste. 1 Ves. 461; 2 Ves. 71.
Watch. Ward on Leg. 221; Mos. 112.
Water lots. 14 Pet. R. 302.
Way. In, through, and along. 1 T. R. 560.
Well and truly executes the duties of his office. 1 Pet. R. 69.
Well and truly to administer. 9 Mass. 114, 119, 370; 13 John. 441; 1 Bay,
328.
Well and truly to administer according to law. 1 Litt. R. 93, 100.
What I may die possessed of. 8 Ves. 604; 3 Call, 225.
What remains. 11 Ves. 330.
Wharf. 6 Mass. 332.
Wheat. An unthrashed parcel of wheat. 1 Leach, 494; 2 East, P. C. 1018; 2 T.
R. 255.
Wheezing. Oliph. on Law of Horses, 61.
When. 6 Ves. 239; 11 Ves. 489; 3 Bro. C. C. 471.
When able. 3 Esp. 159; 3 E. C. L. R. 264, note; 4 Esp. 36.
When received. 13 Ves. 325.
When the same shall be recovered. lb.
When or if. 1 Hare, R. 10.
When paid. 15 S. & R. 114.
Wherefore he prays judgment, &c. 2 John. Cas. 312.
Whereupon. 6 T. R. 573.
Whilst. 7 Fast, 116.
Wholesale factory prices. 2 Conn. R. 69.
Widows and Orphans. 2 Sim. & Stu. 93.
Wife. 3 Ves. 570.
Willful. 1 Benth. Ev. 351.
Willful and corrupt. 1 Benth. Rat. Jud. Ev. 351.
Willfully. 8 Law Rep. 78.
Will. He will change. 2 B. & B. 223.
With. 2 Vern. 466; Prec. Ch. 200; 1 Atk. 469; 2 Sch. & Lef. 189; 3 Mer. 437;
2 B. & Ald. 710; 2 B. & P. 443.
With all faults. 5 B. & A. 240; 7 E. C. L. R. 82; 3 E. C. L. R. 475.
With surety. 6 Binn. 53; 12 Serg. & Rawle, 112.
With the prothonotary. 5 Binn. 461.
With all usual and reasonable covenants. 12 Ves. 179, 186; 3 Bro. C. C. 632;
15 Ves. 528; 3 Anstr. 700.
With sureties. 2 Bos. & Pull. 443.
With effect. 2 Watts & Serg. 33.
With liberty. 8 Gill & John. 190.
Within four days. 15 Serg. & Rawle, 43.
Within ___ days after. 3 Serg. & Rawle, 395.
Without fraud, deceit or oppression. 6 Wend. 454.
Without prejudice. 2 Chit. Pr. 24, note (x); 3 Mann. & Gr. 903.
Without recourse. 1 Cowen, 538; 3 Cranch, 193; 7 Cranch, 159; 12 Mass. 172;
14 Serg. & Rawle, 325; 8 W. & S. 353; 2 Penn. St. R. 200. Vide article
Sans Recours, in the body of this work.
Without reserve. 5 Mass. R. 34.
Wm. William. 1 Scam. R. 451.
Wood. Cro. Jac. 166.
Wood-land. 1 Serg. & Rawle, 169.
Woods. 4 Mass. 268.
Working days. 1 Bell's Com. 577, 5th ed
Worldly labor. 4 Bing. 84; S. C. 13 R. 351.
Worth and value. 3 B. & C. 516.
Writing. 14 John. 484; 8 Ves. 504; 2 M. & S. 286; 17 Ves. 459.
Writing in pencil. 1 Eng. Eccl. Rep. 406.

Yard lane. Touchs. 93; Co. Litt. 5.
Yearly meeting of Quakers. 6 Conn. 393.
Yearly meeting. 6 Conn. 292.
You. 2 Dowl. R. 145; S. C. 6 Leg. Obs. 138.

CONSTRUCTIVE. That which is interpreted.
2. Constructive presence. The commission of crimes, is, when a party is
not actually present, an eyewitness to its commission but, acting with
others, watching while another commits the crime. 1 Russ. Cr. 22.
3. Constructive larceny. One where the taking was not apparently
felonious, but by construction of the prisoner's acts it is just to presume
he intended at the time of taking to appropriate the property feloniously to
his own use; 2 East, P. C. 685; 1 Leach, 212; as when he obtained the
delivery of the goods animo furandi. 2 N. & M. 90. See 15 S. & R. 93; 4
Mass. 580; I Bay, 242.
4. Constructive breaking into a house. In order to commit a burglary,
there must be a breaking of the house; this may be actual or constructive. A
constructive breaking is when the burglar gains an entry into the house by
fraud, conspiracy, or threat. See Burglary, A familiar instance of
constructive breaking is the case of a burglar who coming to the house under
pretence of business, gains admittance, and after being admitted, commits
such acts as, if there had been an actual brooking, would have amounted to a
burglary Bac. Ab. Burglary, A. See 1 Moody Cr. Cas. 87, 250.
5. Constructive notice. Such a notice, that although it be not actual,
is sufficient in law; an example of this is the recording of a deed, which
is notice to all the world, and so is the pendancy of a suit a general
notice of an equity. 4 Bouv. Inst. n. 3874. See Lis pendens.
6. Constructive annexation. The annexation to the inheritance by the
law, of certain things which are not actually attached to it; for example,
the keys of a house; and heir looms are constructively annexed. Shep. Touch.
90; Poth. Traits des Choses, Sec. 1.
7. Constructive fraud. A contract or act, which, not originating in
evil design and contrivance to perpetuate a positive fraud or injury upon
other persons, yet, by its necessary tendency to deceive or mislead them, or
to violate a public or private confidence, or to impair or injure public
interest, is deemed equally reprehensible with positive fraud, and therefore
is prohibited by law, as within the same reason and mischief as contracts
and acts done malo animo. 1 Story, Eq. Sec. 258 to 440.

CONSUETUDINES FEUDORUM. The name of an institute of the feudal system and
usages, compiled about the year 1170, by authority of the emperor Frederic,
surnamed Barbarossa. Ersk. Inst. B. 2, t. 3, n. 5.

CONSUL, government, commerce. Consuls are commercial agent's appointed by a
government to reside in the seaports of a foreign country, and commissioned
to watch over the commercial rights and privileges of the nation deputing
them. A vice-consul is one acting in the place of a consul.
2. Consuls have been greatly multiplied. Their duties and privileges
are now generally limited, defined and secured by commercial treaties, or by
the laws of the countries they represent. As a general rule, it may be laid
down that they represent the subjects or citizens of their own nation, not
otherwise represented. Bee, R. 209 3 Wheat. R. 435; 6. Wheat. R., 152; 10
Wheat. 66; 1 Mason's R. 14.
3. This subject will be considered by a view, first, of the
appointment, duties, powers, rights, and liabilities of American consuls;
and secondly, of the recognition, duties, rights, and liabilities of foreign
consuls.
4.-1. Of American consuls. First. The president authorized by the
Constitution of the United States, art. 2, s. 2, el. 3, to nominate, and, by
and with the advice and consent of the senate, appoint consuls.
5.-Secondly. Each consul and vice-consul is required, before he
enters on the execution of his office, to give bond, with such sureties as
shall be approved by the secretary of state, in a sum not less than two
thousand nor more than ten thousand dollars, conditioned for the true and
faithful discharge of the duties of his office, and also for truly
accounting for all moneys, goods and effects which may come into his
possession by virtue of the act of 14th April, 1792, which bond is to be
lodged in the office of the secretary of State. Act of April 14, 1792, sect.
6.
6.-Thirdly. They have the power and are required to perform many
duties in relation to the commerce of the United States and towards masters
of ships, mariners, and other citizens of the United States; among these are
the authority to receive protests or declarations which captains, masters,
crews, passengers, merchants, and others make relating to American commerce;
they are required to administer on the estate of American citizens, dying
within their consulate, and leaving no legal representatives, when the laws
of the country permit it; [see 2 Curt. Ecc. R. 241] to take charge and
secure the effects of stranded American vessels in the absence of the
master, owner or consignee; to settle disputes between masters of vessels
and the mariners; to provide for destitute seamen within their consulate,
and send them to the United States, at the public expense. See Act of 14th
April, 1792; Act of 28th February, 1803, ch. 62; Act of 20th July, 1840, Ch.
23. The consuls are also authorized to make certificates of certain facts in
certain cases, which receive faith and credit in the courts of the United
States. But those consular certificates are not to be received in evidence,
unless they are given in the performance of a consular function; 2 Cranch,
R. 187; Paine, R. 594; 2 Wash. C. C. R. 478; 1 Litt. R. 71; nor are they
evidence, between persons not parties or privies to the transaction, of any
fact, unless, either expressly or impliedly, made so by statute. 2 Sumn. R.
355.
7.-Fourthly. Their rights are to be protected agreeably to the laws
of nations, and of the treaties made between the nation to which they are
sent, and the United States. They are entitled, by the act of 14th April,
1792, s. 4, to receive certain fees, which are there enumerated. And the
consuls in certain places, as London, Paris, and the Barbary states,
receive, besides, a salary.
8.-Fifthly. A consul is liable for negligence or omission to perform,
seasonably, the duties imposed upon him, or for any malversation or abuse of
power, to any injured person, for all damages occasioned thereby; and for
all malversation and corrupt conduct in office, a consul is liable to
indictment, and, on conviction by any court of competent jurisdiction, shall
be fined not less than one, nor more than ten thousand dollars; and be
imprisoned not less than one nor more than five years. Act of July 20, 1840,
ch. 23, cl. 18. The act of February 28, 1803, ss. 7 and 8, imposes heavy
penalties for falsely and knowingly certifying that property belonging to
foreigners is the property of citizens of the United States; or for granting
a passport, or other paper, certifying that any alien, knowing him or her to
be such, is a citizen of the United States.
9. The duties of consuls residing on the Barbary coast are prescribed
by a particular statute. Act of May 1, 1810, S. 4.
10.-2. Of foreign consuls. First. Before a consul can perform any
duties in the United States, he must be recognized by the president of the
United States, and have received his exequatur. (q.v.)
11.-Secondly. A consul is clothed only with authority for commercial
purposes, and he has a right to interpose claims for the restitution of
property belonging to the citizens or subjects of the country he represents;
10 Wheat. R. 66; 1 Mason R. 14; See, R. 209; 6 Wheat. R. 152; but he is not
to be considered as a minister or diplomatic Agent, entrusted by virtue of
his office to represent his sovereign in negotiations with foreign states. 3
Wheat, R. 435.
12.-Thirdly. Consuls are generally invested with special privileges by
local laws and usages, or by international compact; but by the laws of
nations they are not entitled to the peculiar immunities of ambassadors. In
civil and criminal cases, they are subject to the local laws in the same
manner with other foreign residents owing a temporary allegiance to the
state. Wicquefort, De l'Ambassadeur, liv. 1, Sec. 5; Bynk. cap. 10 Martens,
Droit des Gens, liv. 4, c. 3, Sec. 148. In the United States, the act of
September 24th, 1789, s. 13 gives to the supreme court original, but not
exclusive jurisdiction of all suits in which a consul or vice-consul shall
be a party. The act last cited, section 9, gives to the district courts of
the United States, jurisdiction exclusively of the courts of the several
states, of all suits against consuls or vice-consuls, except for offences
where whipping exceeding thirty stripes, a fine exceeding one hundred
dollars, or a term of imprisonment exceeding six months, is inflicted. For
offences punishable beyond these penalties, the circuit has jurisdiction in
the case of consuls. 5 S. & R. 545. See 1 Binn. 143; 2 Dall. 299; 2 N. & M.
217; 3 Pick. R. 80; 1 Green, R. 107; 17 Johns. 10; 6 Pet. R. 41; 7 Pet. R.
276; 6 Wend. 327.
13.-Fourthly. His functions may be suspended at any time by the
government to which he is sent, and his exequatur revoked. In general, a
consul is not liable, personally, on a contract made in his official
capacity on account of his government. 3 Dall. 384.
14. During the middle ages, the term consul was sometimes applied to
ordinary judges; and, in the Levant, maritime judges are yet called consuls.
1 Boul. Paty, Dr. Mar. Tit. Prel. s. 2, p. 57.
15. Among the Romans, consuls were chief magistrates who were annually
elected by the people, and were invested with powers and functions similar
to those of kings. See, generally, Abbott on Ship. 210; 2 Bro. Civ. Law,
503; Merl. Repert. h.t.; Ayl. Pand. 160; Warden on Consuls; Marten on
Consuls; Borel, de l'Origine, et des Fonctions des Consuls; Rawle on the
Const. 222, 223; Story on the Const. Sec. 1654 Serg. Const. Law, 225; Azuni,
Mar. Law, part 1, c. 4, art. 8, Sec. 7.

CONSULTATION, practice. A conference between the counsel or attorneys
engaged on the same side of a cause, for the purpose of examining their
case, arranging their proofs, and removing any difficulties there may be in
their way.
2. This should be had sufficiently early to enable the counsel to
obtain an amendment of the pleadings, or further evidence. At these
consultations the exact course to be taken by the plaintiff in exhibiting
his proofs should be adopted, in consultation, by the plaintiff's counsel.
In a consultation on a defendant's case, it is important to ascertain the
statement of the defence, and the evidence which may be depended upon to
support it; to arrange the exact course of defence, and to determine on the
cross-examination of the plaintiff's witnesses; and, above all, whether or
not evidence shall be given on the part of the defendant, or withheld, so as
to avoid a reply on the part of the plaintiff. The wishes of the client
should, in all cases, be consulted. 3 Chit. Pr. 864.

CONSULTATION, Eng. law. The name of a writ whereby a cause, being formerly
removed by prohibition out of an inferior court into some of the king's
courts in Westminster, is returned thither again for if the judges of the
superior court, comparing the proceedings with the suggestion of the party,
find the suggestion false or not proved, and that therefore the cause was
wrongfully called from the inferior court, then, upon consultation and
deliberation, they decree it to be returned, where upon this writ issues. T.
de la Ley.

CONSULTATION, French law. The opinion of counsel, on a point of law
submitted to them. Dict. de Jur. h.t.

CONSUMMATE. What is completed. A right is said to be initiate, when it is not

complete; and when it is perfected, it is consummated.

CONSUMMATION. The completion of a thing; as the consummation of marriage;
(q.v.) the consummation of a contract, and the like.
2. A contract is said to be consummated, when everything to be done in
relation to it, has been accomplished. It is frequently of great importance
to know when a contract has been consummated, in order to ascertain the
rights of the parties, particularly in the contract of sale. Vide Delivery,
where the subject is more fully examined. It is also sometimes of
consequence to ascertain where the consummation of the contract took place,
in order to decide by what law it is to be governed.
3. It has been established as a rule, that when a contract is made by
persons absent from each other, it is considered as consummated in, and is
governed by the law of, the country where the final assent is given. If,
therefore, Paul in New Orleans, order goods from Peter in London, the
contract is governed by the laws of the latter place. 8 M. R. 135; Plowd.
843. Vide Conflict of Laws;, Inception; Lex Loci Contractus; Lex Fori;
Offer.

CONSUMMATION OF MARRIAGE. The first time that the husband and wife cohabit
together, after the ceremony of marriage has been performed, is thus called.
2. The marriage, when otherwise legal, is complete without this; for it
is a maxim of law, borrowed from the civil, law, that consensus, non
concubitus, facit nuptias. Co. Litt. 33; Dig. 50, 17, 30; 1 Black. Com. 434.

CONTAGIOUS DISORDERS, police, crim. law. Diseases which are capable of being
transmitted by mediate or immediate contact.
2. Unlawfully and injuriously to expose persons infected with the
smallpox or other contagious disease in the public streets where persons are
passing, or near the habitations of others, to their great danger, is
indictable at common law. 1 Russ. Cr. 114. Lord Hale seems to doubt whether
if a person infected with the plague, should go abroad with intent to infect
another, and another should be infected and die, it would not be murder; and
he thinks it clear that though there should be no such intent, yet if
another should be infected, it would be a great misdemeanor. 1 Pl. Cor. 422.
Vide 4 M. & S. 73, 272; Dane's Ab. h.t.

CONTEMPORANEOUS EXPOSITION. The construction of a law, made shortly after
its enactment, when the reasons for its passage were then fresh in the minds
of the judges, is considered as of great weight: contemporanea expositio est
optima et fortissima in lege. 1 Cranch, 299.

CONTEMPT, crim. law. A willful disregard or disobedience of a public
authority.
2. By the Constitution of the United States, each house of congress may
determine the rules of its proceeding's, punish its members for disorderly
behaviour, and, with the concurrence of two-thirds, expel a member. The same
provision is substantially contained in the constitutions of the several
states.
3. The power to make rules carries that of enforcing them, and to
attach persons who violate them, and punish them for contempts. This power
of punishing for contempts, is confined to punishment during the session of
the legislature, and cannot extend beyond it; 6 Wheat. R. 204, 230, 231 and,
it seems this power cannot be exerted beyond imprisonment.
4. Courts of justice have an inherent power to punish all persons for
contempt of their rules and orders, for disobedience of their process, and
for disturbing them in their proceedings. Bac. Ab. Courts and their
jurisdiction in general, E; Rolle's Ab. 219; 8 Co. 38 11 Co. 43 b.; 8 Shepl.
550; 5 Ired. R. 199.
5. In some states, as in Pennsylvania, the power to punish for
contempts is restricted to offences committed by the officers of the court,
or in its presence, or in disobedience of its mandates, orders, or rules;
but no one is guilty of a contempt for any publication made or act done out
of court, which is not in violation of such lawful rules or orders, or
disobedience of its process. Similar provisions, limiting the power of the
courts of the United States to punish for contempts, are incorporated in the
Act March 2, 1831. 4 Sharsw. cont. of Stor. L. U. S. 2256. See Oswald's
Case, 4 Lloyd's Debates, 141,. et seq.
6. When a person is in prison for a contempt, it has been decided in
New York that he cannot be discharged by another judge, when brought before
him on a habeas corpus; and, according to Chancellor Kent, 3 Com. 27, it
belongs exclusively to the court offended to judge of contempts, and what
amounts to them; and no other court or judge can, or ought to undertake, in
a collateral way, to question or review an adjudication of a contempt made
by another competent jurisdiction.
This way be considered as the established doctrine equally in England
as in this country. 3 Wils. 188 14 East, R. 12 Bay, R. 182 6 Wheat. R. 204 7
Wheat. R. 38; 1 Breese, R. 266 1 J. J. Marsh. 575; Charlt. R. 136; 1 Blackf.
1669 Johns. 395 6 John. 337.

CONTENTIOUS JURISDICTION, eccl. law. In those cases where there is an action
or judicial process, and it consists in hearing and determining the matter
between party and party, it is said there is contentious jurisdiction, in
contradistinction to voluntary jurisdiction, which is exercised in matters
that require no judicial proceeding, as in taking probate of wills, granting
letters of administration, and the like. 3 Bl. Com. 66.

CONTESTATIO LITIS, civil law. The joinder of issue in a cause. Code of Pr.
of Lo. art. 357.

CONTESTATION. The act by which two parties to an action claim the same
right, or when one claims a right to a thing which the other denies; a
controversy. Wolff, Dr. de la Nat. 762.

CONTEXT. The general series or composition of a law, contract, covenant, or
agreement.
2. When, there is any obscurity in the words of an agreement or law,
the context must be considered in its construction, for it must be performed
according to the intention of its framers. 2 Cowen, 781,; 3 Miss. 447 1
Harringt. 154; 6 John. 43; 5 Gill & John. 239; 3 B. & P. 565; 8 East, 80 1
Dall. 426; 4 Dall. 340; 3 S. & R. 609 See Construction; Interpretation.

CONTINGENT. What may or may not happen;. what depends upon a doubtful event;
as, a contingent debt, which is a debt depending upon some uncertain event.
9 Ves. It. 110; Co. Bankr. Laws, 245; 7 Ves. It. 301; 1 Ves. & Bea. 176; 8
Ves. R. 334; 1 Rose, R. 523; 3 T. R. 539; 4 T. R. 570. A contingent legacy
is one which is not vested. Will. on Executors, h.t. See Contingent
Remainder; Contingent Use.

CONTINGENT DAMAGES. Those given where the issues upon counts to which no
demurrer has been filed, are tried, before demurrer to one or more counts in
the same declaration has been decided. 1 Str. 431.

CONTINGENT ESTATE. A contingent estate depends for its effect upon an event
which may or may not happen: as an estate limited to a person not in esse or
not yet born. Crabb on Real Property, b. 3, c. 1, sect. 2. Sec. 946.

CONTINGENT REMAINDER, estates. An estate in remainder which is limited to
take effect, either to a dubious and uncertain person, or upon a dubious and
uncertain event, by, which no present or particular interest passes to the
remainder-man, so that the particular estate may chance to be determined and
the remainder never take effect. 2, Bouv. Inst. n. 1832. Vide Remainder.

CONTINGENT USE, estates. A use limited in a deed or conveyance of land which
may or may not happen to vest, according to the contingency expressed in the
limitation of such use. A contingent use is such as by possibility may
happen in possession, reversion or remainder. 1 Rep. 121 Com. Dig. Uses, K.
6.

CONTINUAL CLAIM, English law. When the feoffee of land is prevented from
taking possession by fear of menaces or bodily harm, he may make a claim to
the land in the presence of the vares[?], and if this claim is regularly made

once every year and a day, which is then called a continual claim, it
preserves to the feoffee his rights, and is equal to a legal entry. 3 Bl.
Com. 175; 2 Bl. Com. 320; 1 Chit. Pr. 278 (a) in note; Crabbe's Inst. E. L.
403.

CONTINUANCE, practice. The adjournment of a cause from one day to another is
called a continuance, an entry of which is made upon the record.
2. If these continuances are omitted, the cause is thereby
discontinued, and the defendant is discharged sine die, (q.v.) without a
day, for this term. By his appearance he has obeyed the command of the writ,
and, unless he be adjourned over to a certain day, he is no longer bound to
attend upon that summons. 3 Bl. Com. 316.
3. Continuances may, however, be entered at any time, and if not
entered, the want of them is aided or cured by the appearance of the
parties; and Is a discontinuance can never be objected to pendente placito,
so after the judgment it is cured by the statute of jeofails[?]. Tidd's Pr.
628, 835.
4. Before the declaration the continuance is by dies datus prece
partium; after the declaration and before issue joined, by imparlance; after
issue joined and before verdict, by vicecomes non misit breve; and after
verdict or demurrer by curia advisare vult. 1 Chit. Pl. 421, n. (p); see
Vin. Abr. 454; Bac. Abr. Pleas, &c. P; Bac. Abr. Trial, H.; Com. Dig.
Pleader, V. See, as to the origin of continuances, Steph. Pl. 31; 1 Ch. Pr.
778, 779.

CONTINUANDO, plead. The Dame of an averment sometimes contained in a
declaration in trespass, that the injury or trespass has been continued. For
example, if Paul turns up the ground of Peter and tramples upon his grass,
for three days together, and Peter desires to recover damages, as well for
the subsequent acts of treading down the grass and subverting the soil, as
for the first, he must complain of such subsequent trespasses in his actions
brought to compensate the former. This he may do by averring that Paul, on
such a day, trampled upon the herbage and turned up the ground, "continuing
the said trespasses for three days following." This averment seems to impart
a continuation of the same identical act of trespass; it has, however,
received, by continued usage, another interpretation, and is taken, also, to
denote a repetition of the same kind of injury. When the trespass is not of
the same kind, it cannot be averred in a continuando; for example, when the
injury consists in killing and carrying away an animal, there remains
nothing to which a similar injury may again be offered. 1 Wms. Saund. 24, n.
1.
2. There is a difference between he continuando and the averment
diversis diebus et temporibus, on divers days and times. In the former, the
injuries complained of have been committed upon one and the same occasion;
in the latter, the acts complained of, though of the same kind, are distinct
and unconnected, See Gould, Pl. ch. 3, Sec. 86, et seq.; Ham. N. P. 90, 91
Bac. A. Trespass, I 2, n. 2.

CONTINUING CONSIDERATION. A continuing consideration is one which in point
of time remains good and binding, although it may have served before to
Support a contract. 1 Bouv. Inst. n. 628; 1 Saund. 320 e, note (5.)

CONTINUING DAMAGES. Those which are continued at different times, or which
endure from one time to another. If a person goes upon successive day's and
tramples the grass of the plaintiff, he commits continuing damages; or if
one commit a trespass to the possession, and it is in fact injurious to him
who has the reversion or remainder, this will be continuing damages. In this
last case the person in possession may have an action of trespass against
the wrong doer to his possession, and the reversioner has an action against
him for an injury to the reversion. 1 Chit. Pr. 266, 268, 385; 4 Burr. 2141,
3 Car. & P. 817.

CONTRA. Over; against; opposite to anything: as, such a case lays down a
certain principle; such other case, contra.

CONTRA BONOS MORES. Against good morals.
2. All contracts contra bonos mores, are illegal. These are reducible
to Several classes, namely, those which are, 1. Incentive to crime. A claim
cannot be sustained, therefore, on. a bond for compounding a crime; as, for
example, a prosecution for perjury; 2 Wils. R. 341, 447; or for procuring a
pardon. A distinction has been made between a contract made as a reparation
for an injury to the honor of a female, and one which is to be the reward of
future illicit cohabitation; the former is good and valid, and the latter is
illegal. 3 Burr. 1568; 1 Bligh's R. 269.
3.-2. Indecent or mischievous consideration. An obligation or
engagement prejudicial to the feelings of a third party; or offensive to
decency or morality; or which has a tendency to mischievous or pernicious
consequences, is void. Cowp. 729; 4 Campb. R. 152; Rawle's R. 42; 1 B. & A.
683; 4 Esp. Cas. 97; 16 East R. 150; Vide Wagers.
4.-3. Gaming. The statutes against gaming render all contracts made
for the purpose of gaming, void. Vide Gaming; Unlawful; Void.

CONTRA FORMAM STATUTI. Contrary to the form of the statute.
2.-1. When one statute prohibits a thing and another gives the
penalty, in an action for the penalty, the declaration should conclude
contra fornam statutorum. Plowd. 206; 2 East, R. 333; Esp. on Pen. Act. 111;
1 Gallis. R. 268. The same rule applies to informations and indictments. 2
Hale, P. C. 172; 2 Hawk. c. 25, Sec. 117 Owen, 135.
3.-2. But where a statute refers to a former one, and adopts and,
continues the provisions of it, the declaration or indictment should
conclude contraformam statuti. Hale, P. C, 172; 1 Lutw. 212.
4.-3. Where a thing is prohibited by several statutes, if one only
gives the action, and the others are explanatory and restrictive, the
conclusion should be contra formam statuti. Yelv. 116; Cro. Jac. 187 Noy,
125, S. C.; Rep. temp. Hard. 409 Andr. 115, S. C.; 2 Saund. 377.
5.-4. When the act prohibited was not an offence or ground of action
at common law, it is necessary both in criminal and civil cases to conclude
against the form of the statute or statutes. 1 Saund, 135, c.; 2 East, 333;
1 Chit. Pl. 358; 1 Saund. 249; 7 East, 516; 2 Mass. 116; 7 Mass. 9; 11 Mass.
280; 10 Mass. 36; 1 M'Cord, 121; 1 Gallis. 30.
6.-5. But if the act prohibited by the statute is an offence or
ground of action at common law, the indictment or action may be in the
common law form, and the statute need not be noticed, even though it
prescribe a form of prosecution or of action - the statute remedy being
merely
cumulative. 2 Inst. 200; 2 Burr. 803; 4 Burr. 2351; 3 Burr. 1418; 2 Wils.
146; 3 Mass. 515.
7.-6. When a statute only inflicts a punishment on that which was an
offence at common law, the offence prescribed may be inflicted, though the
statute is not noticed in the indictment. 2 Binn. 332.
8.-7. If an indictment for an offence at common law only, conclude
"against the form of the statute in such case made and provided;" or "the
form of the statute" generally, the conclusion will be rejected as
surplusage, and the indictment maintained as at common. law. 1 Saund. 135,
3.
9.-8. But it will be otherwise if it conclude against the form of
"the statute aforesaid," when a statute has been previously recited. 1 Chit.
Cr. Law, 266, 289. See further, Com. Dig. Pleader C 76; 5 Vin. Abr. 552, 556
1 Gallis. 26, 257; 9 Pick. 162 5 Pick. 128 2 Yerg. 390; 1 Hawks. 192; 3
Conn. 1 11 Mass. 280; 5 Greenl. 79.

CONTRA PACEM, pleadings. Against the peace.
2. In actions of trespass, the words contra pacem should uniformly
accompany the allegation of the injury; in some cases they are material to
the foundation of the action. Trespass to lands in a foreign country cannot
be sustained. 4 T. R. 503 2 Bl. Rep.. 1O58.
3. The conclusion of the declaration, in trespass or ejectment, should
be contra pacem, though these are now mere words of form, and not
traversable, and the omission of that allegation will be aided, if not
specially demurred to. 1 Chit. Pl. 375, 6 vide Arch. Civ. Pl. 169; 5 Vin.
Ab. 557 Com. Dig. Action upon the case, C 4 Pleader, 3, M 8; Prohibition, F
7.

CONTRABAND, mar. law. Its most extensive sense, means all commerce which is
carried on contrary to the laws of the state. This term is also used to
designate all kinds of merchandise which are used, or transported, against
the interdictions published by a ban or solemn cry.
2. The term is usually applied to that unlawful commerce which is so
carried on in time of war. Merlin, Repert. h.t. Commodities particularly
useful in war are contraband as arms, ammunition, horses, timber for ship
building, and every kind of naval stores. When articles come into use as
implements of war, which were before innocent, they may be declared to be
contraband. The greatest difficulty to decide what is contraband seems to
have occurred in the instance of provisions, which have not been held to be
universally contraband, though Vattel admits that they become so on certain
occasions, when there is an expectation of reducing an enemy by famine.
3. In modern times one of the principal criteria adopted by the courts
for the decision of the question, whether any particular cargo of provisions
be confiscable as contraband, is to examine whether those provisions be in a
rude or manufactured state; for all articles, in such examinations, are
treated with greater indulgence in their natural condition than when wrought
tip for the convenience of the enemy's immediate use. Iron, unwrought, is
therefore treated with indulgence, though anchors, and other instruments
fabricated out of it, are directly contraband. 1 Rob. Rep. 1 89. See Vattel,
b. 3, c. 7 Chitty's L. of Nat. 120; Marsh. Ins. 78; 2 Bro. Civ., Law, 311; 1
Kent. Com. 135; 3 Id. 215.
4. Contraband of war, is the act by which, in times of war, a neutral
vessel introduces, or attempts to introduce into the territory of, one of
the belligerent parties, arms, ammunition, or other effects intended for, or
which may serve, hostile operations. Merlin, Repert. h.t. 1 Kent, Com. 135;
Mann. Comm. B. 3, c. 7; 6 Mass. 102; 1 Wheat. 382; 1 Cowen, 56 John. Cas.
77, 120.

CONTRACT. This term, in its more extensive sense, includes every description
of agreement, or obligation, whereby one party becomes bound to another to
pay a sum of money, or to do or omit to do a certain act; or, a contract is
an act which contains a perfect obligation. In its more confined sense, it
is an agreement between two or more persons, concerning something to be,
done, whereby both parties are hound to each other, *or one is bound to the
other. 1 Pow. Contr. 6; Civ. Code of Lo. art. 1754; Code Civ. 1101; Poth.
Oblig. pt. i. c. 1, S. 1, Sec. 1; Blackstone, (2 Comm. 442,) defines it to
be an agreement, upon a sufficient consideration, to do or not to do a
particular thing. A contract has also been defined to be a compact between
two or more persons. 6 Cranch, R. 136.
2. Contracts are divided into express or implied. An express contract
is one where the terms of the agreement are openly uttered and avowed at the
time of making, as to pay a stated price for certain goods. 2 Bl. Com. 443.
3. Express contracts are of three sorts 1. BI parol, or in writing, as
contradistinguished from specialties. 2. By specialty or under seal. 3. Of
record.
4.-1. A parol contract is defined to be a bargain or voluntary
agreement made, either orally or in writing not under, seal, upon a good
consideration, between two or more persons capable of contracting, to, do a
lawful act, or to omit to do something, the performance whereof is not
enjoined by law. 1 Com. Contr. 2 Chit. Contr. 2.
5. From this definition it appears, that to constitute a sufficient
parol agreement, there must be, 1st. The reciprocal or mutual assent of two
or more persons competent to contract. Every agreement ought to be so
certain and complete, that each party may have an action upon it; and the
agreement would be incomplete if either party withheld his assent to any of
its terms. Peake's R. 227; 3 T. R. 653; 1 B. & A. 681 1 Pick. R. 278. The
agreement must, in general, be obligatory on both parties, or it binds
neither. To this rule there are, however, some exceptions, as in the case of
an infant's contract. He may always sue, though he cannot be sued, on his
contract. Stra. 937. See other instances; 6 East, 307; 3 Taunt. 169; 5
Taunt. 788; 3 B. & C. 232.
6.-2d. There must be a good and valid consideration, motive or
inducement to make the promise, upon which a party is charged, for this is
of the very essence of a contract under seal, and must exist, although the
contract be reduced to writing. 7 T. R. 350, note (a); 2 Bl. Coin. 444. See
this Dict. Consideration; Fonb. Tr. Eq. 335, n. (a) Chit. Bills. 68.
7.-3d. There must be a thing to be done, which is not forbidden; or a
thing to be omitted, the performance of which is not enjoined by law. A
fraudulent or immoral contract, or one contrary to public policy is void
Chit. Contr. 215, 217, 222: and it is also void if contrary to a statute.
Id. 228 to 250; 1 Binn. 118; 4 Dall. 298 4 Yeates, 24, 84; 6 Binn. 321; 4
Serg & Rawle, 159; 4 Dall. 269; 1 Binn. 110 2 Browne's R. 48. As to
contracts which are void for want of a compliance with the statutes of
frauds, see Frauds, Statute of.
8.-2. The second kind of express contracts are specialties, or those
which are made under seal, as deeds, bonds, and the like; they are not
merely written, but delivered over by the party bound. The solemnity and
deliberation with which, on account of the ceremonies to be observed, a deed
or bond is presumed to be entered into, attach to it an importance and
character which do not belong to a simple contract. In the case of a
specially, no consideration is necessary to give it validity, even in a
court of equity. Plowd. 308; 7 T. R. 477; 4 B. & A. 652; 3 T. R. 438; 3
Bingh. 111, 112; 1 Fonb. Eq, 342, note When, a contract by specialty has
been changed by a parol agreement, the whole of it becomes a parol contract.
2 Watts, 451; 9 Pick. 298; see 13 Wend. 71.
9.-3. The highest kind of express contracts are those of record, such
as judgments, recognizances of bail, and in England, statutes merchant and
staple, and other securities of the same nature, cutered into with the
intervention of some public authority. 2 Bl. Com. 465. See Authentic Facts.
10. Implied contracts are such as reason and justice dictates, and
which, therefore, the law presumes every man undertakes to perform; as if a
man employs another to do any business for him, or perform any work, the law
implies that the former contracted or undertook to pay the latter as much as
his labor is worth; see Quantum merwit; or if one takes up goods from a
tradesman, without any agreement of price, the law concludes that he
contracts to pay their value. 2 Bl. Com. 443. See Quantum valebant;
Assumpsit. Com. Dig. Action upon the case upon assumpsit, A 1; Id.
Agreement.
11. By the laws of Louisiana, when considered as to the obligation of
the parties, contracts are either unilateral or reciprocal. When the party
to whom the engagement is made, makes no express agreement on his part, the
contract is called unilateral, even in cases where the law attaches certain
obligations to his acceptance. Civ. Code of Lo. art. 1758. A loan for use,
and a loan of money, are of this kind. Poth. Ob. P. 1, c. 1, s. 1, art. 2. A
reciprocal contract is where the parties expressly enter into mutual
engagements such as sale, hire, and the like. Id.
12. Contracts, considered in relation to their substance, are either
commutative or independent, principal or accessory.
13. Commutative contracts, are those in which what is done, given or
promised by one party, is considered as equivalent to, or in consideration
of what is done, given or promised by the other. Civ. Code of Lo. art. 1761.
14. Independent contracts are those in which the mutual acts or
promises have no relation to each other, either as equivalents or as
considerations. Id. art. 1762.
15. A principal contract is one entered into by both parties, on their
accounts, or in the several qualities they assume.
16. An accessory contract is made for assuring the performance of a
prior contract, either by the same parties or by others, such as suretyship,
mortgage, and pledges. Id. art. 1764. Poth. Obl. p. 1, c. 1, s. 1, art. 2,
n. 14.
17. Contracts, considered in relation to the motive for. making them, are

either gratuitous or onerous. To be gratuitous, the object of a contract
must be to benefit the person with whom it is made, without any profit or
advantage, received or promised, as a consideration for it. It is not,
however, the less gratuitous, if it proceed either from gratitude for a
benefit before received, or from the hope of receiving one hereafter,
although such benefits be of a pecuniary nature. Id. art. 1766. Any thing
given or promised, as a consideration for the engagement or gift; any
service, interest, or condition, imposed on what is given or promised,
although unequal to it in value, makes a contract onerous in its nature. Id.
art. 1767.
18. Considered in relation to their effects, contracts are either
certain or hazardous. A contract is certain, when the thing to be done is
supposed to depend on the will of the party, or when, in the usual course of
events, it must happen in the manner stipulated. It is hazardous, when the
performance.of that which is one of its objects, depends on an uncertain
event. Id. art. 1769.
19. Pothier, in his excellent treatise on Obligations, p. 1, c. 1, s. 1,
art. 2, divides contracts under the five following heads:
20.-1. Into reciprocal and unilateral.
21.-2. Into consensual, or those which are formed by the mere consent
of the parties, such as sale, hiring and mandate; and those in which it is
necessary there should be something more than mere consent, such as loan of
money, deposit or pledge, which from their nature require a delivery of the
thing, (rei); whence they are called real contracts. See Real Contracts.
22.-3. Into first, contracts of mutual interest, which are such as are
entered into for the reciprocal interest and utility of each of the parties,
as sales exchange, partnership, and the like.
23.-2d. Contracts of beneficence, which are those by which only one of
the contracting parties is benefited, as loans, deposit and mandate. 3d.
Mixed contracts, which are those by which one of the parties confers a
benefit on the other, receiving something of inferior value in return, such
as a donation subject to a charge,
24.-4. Into principal and accessory.
25.-5. Into those which are subjected by the civil law to certain
rules and forms, and those which ate regulated by mere natural justice. See,
generally, as to contracts, Bouv. Inst. Index, h.t.; Chitty on Contracts;
Comyn on Contracts; Newland on Contracts; Com. Dig. titles Abatement, E 12,
F 8; Admiralty, E 10, 11; Action upon the Case upon Assumpsit; Agreement;
Bargain and Sale; Baron and Feme, Q; Condition; Dett, A 8, 9; Enfant, B 5;
Idiot, D 1 Merchant, E 1; Pleader, 2 W, 11, 43; Trade D 3; War, B 2; Bac.
Abr. tit. Agreement; Id. Assumpsit; Condition; Obligation; Vin. Abr.
Condition; Contracts and Agreements; Covenants; Vendor, Vendee; Supp. to
Ves. jr. vol. 2, p. 260, 295, 376, 441; Yelv. 47; 4 Ves. jr., 497, 671;
Archb. Civ. Pl. 22; Code Civ. L. 3, tit. 3 to 18; Pothier's Tr. of
Obligations Sugden on Vendors and Purchasers; Story's excellent treatise on
Bailments; Jones on Bailments; Toullier, Droit Civil Francais, tomes 6 et 7;
Ham. Parties to Actions, Ch. 1; Chit. Pr. Index, h.t.; and the articles
Agreement; Apportionment; Appropriation; Assent; Assignment; Assumpsit;
Attestation; Bailment; Bargain and sale; Bidder; Bilateral contract; Bill of
Exchange; Buyer; Commodate; Condition; Consensual contract; Conjunctive;
Consummation; Construction; Contracto of benevolence; Covenant; Cumulative
contracts; Debt; Deed; Delegation. Delivery; Discharge Of a contract;
Disjunctive; Equity of a redemption; Exchange; Guaranty; Impairing the
obligation of contracts; Insurance; Interested contracts; Item;
Misrepresentation; Mortgage; Mixed contract; Negociorum gestor; Novation;
Obligation; Pactum constitutae, pecuniae; Partners; Partnership; Pledge;
Promise; Purchaser; Quasi contract; Representation; Sale; Seller;
Settlement; Simple contract; Synallagmatic contract; Subrogation; Title;
Unilateral contract.

CONTRACT or BENEVOLENCE, Civil law. One which is made for the benefit of
only one of the contracting parties; such as loan for use, deposit, and
mandate. Poth. Obl. n. 12. See Contracts.

CONTRACTION. An abbreviation; a mode of writing or printing by which some of
the letters of a word are omitted. See Abbreviations.

CONTRACTOR. One who enters into a contract this term is usually applied to
persons who undertake to do public work, or the work for a company or
corporation on a large scale, at a certain fixed price, or to furnish goods
to another at a fixed or ascertained price. 2 Pardess. n. 300. Vide 5 Whart.
366.

CONTRADICTION. The incompatibility, contrariety, and evident opposition of
two ideas, which are the subject of one and the same proposition.
2. In general, when a party accused of a crime contradicts himself, it
is presumed he does so because he is guilty for truth does not contradict
itself, and is always consistent, whereas falsehood is in general
inconsistent and the truth of some known facts will contradict the falsehood
of those which are falsely alleged to be true. But there must still be much
caution used by the judge, as there may be sometimes apparent contradictions
which arise either from the timidity, the ignorance, or the inability of the
party to explain himself, when in fact he tells the truth.
3. When a witness contradicts himself as to something which is important
in the case, his testimony will be much weakened, or it may be entirely
discredited and when he relates a story of facts which he alleges passed
only in his presence, and he is contradicted as to other facts which are
known to others, his credit will be much impaired.
4. When two witnesses, or other persons, state things directly opposed
to each other, it is the duty of the judge or jury to reconcile these
apparent contradictions; but when this cannot be done, the more improbable
statement must be rejected; or, if both are entitled to the same credit,
then the matter is as if no proof had been given. See Circumstances.

CONTRAFACTION, crim. law. Counterfeiting, imitating. In the French law
contrafaction (contrefacon) is the illegal reprinting of a took for which
the author or his assignee has a copyright, to the prejudice of the latter.
Merl' Repert. mot Contrefacon.

CONTRAVENTION, French law. An act which violates the law, a treaty or an
agreement which the party has made. The Penal Code, art. 1, denominates a
contravention, that infraction of the law punished by a fine, which does not
exceed fifteen francs, and an imprisonment not exceeding three days.

CONTRECTATION. The ability to be removed. In order to commit a larceny, the
property must have been removed. When, from its nature, it is incapable of
contrectation, as real estate, there can be no larceny. Bowy. Mod. Civ. Law,
268. See Larceny Furtum est contrectatio rei fraudulosa. Dig. 47, 2. See
Taking.

CONTREFACON, French law. Counterfeit. This is a bookseller's term, which
signifies the offence of those who print or cause to be printed, without
lawful authority, a book of which the author or his assigns have a
copyright. Merl. Rep. h.t.

CONTRIBUTION, civil law. A partition by which the creditors of an insolvent
debtor divide, among themselves the proceeds of his property, proportionably
to the amount of their respective credits. Civ. Code of Lo. art. 2522, n.
10. It is a division pro rata. Merl. Rep. h.t.

CONTRIBUTION, contracts. When two or more persons jointly owe a debt, and
one is compelled to pay the whole of it, the others are bound to indemnify
him for the payment of their shares; this indemnity is called a
contribution. 1 Bibb. R. 562; 4 John. Ch. R. 545; 4 Bouv. Inst. n. 3935-6.
2. The subject will be considered by taking a view, 1. Of right of the
creditors where there are several debtors. 2. Of the right of the debtor who
pays the whole debt. 3. Of the liabilities of the debtors who are liable to
contribution. 4. Of the liability of land owned by several owners, when it
is subject to a charge. 5. Of the liability of owners of goods in a vessel,
when part is thrown overboard to save the rest.
3.-1. The creditor of several debtors, jointly bound to him, has a
right to compel the payment by any he may choose; but he cannot sue them
severally, unless they are severally bound.
4.-2. When one of several debtors pays a debt, the creditor is bound
in conscience, if not by contract, to give to the party paying the debt all
his remedies against the other debtors. 1 Cox, R. 318 S. C. 2 B. & P. 270 2
Swanst. R. 189, 192; 3 Bligh, 59 14 Ves. 160; 1 Ves. 31 12 Wheat. 596 1
Hill, Ch. R. 844, 351 1 Term. St. It. 512, 517; 1 Ala. R. 23, 28; 11 Ohio
It. 444, 449 8 Misso. It. 169, 175.
5.- 3. A debtor liable to contribution is not responsible upon a
contract, but is so in equity. But courts of common law, in modern times,
have assumed a jurisdiction to compel contribution among sureties, in the
absence of any positive contract, on the ground of an implied assumpsit, and
each of the sureties may be sued for his respective quota or proportion.
White's L. C. in Eq. 66. The remedy in equity is, however, much more
effective. For example, a surety who pays an entire debt, can, in equity,
compel the solvent sureties to contribute towards the payment of the entire
debt. 1 Chan. R. 34 1 Chan. Cas. 246; Finch, R. 15, 203. But at law he can
recover no more than an aliquot part of the whole, regard being had to the
number of co-sureties. 2 B. & P. 268; 6 B. & C. 697.
6.-4. When land is charged with the payment of a legacy, or an estate
with the portion of a posthumous child, every part is bound to make
contribution. 3 Munf. R. 29; 1 John. Ch. R. 425 2 Bouv. Inst. n. 1301.
7.-5. Contribution takes place in another case; namely, when in order
to save a ship or cargo, a part of the goods are cast overboard, the ship
and cargo are liable to contribution in order to indemnify the owner of the
goods lost, except his just proportion. No contribution can be claimed
between joint wrong doers. Bac. Ab. Assumpsit A; Vide 3 Com. Dig. 143; 8
Com. Dig. 373; 5 Vin. Ab. 561; 2 Supp. to Ves. jr. 159, 343; 3 Ves. jr. 64;
Wesk. Ins. 130; 10 S. & R. 75; 5 B. & Ad. 936; S. C. 3 N. & M. 258; Rast.
Entr. 161; 2 Ventr. 348; 2 Vern. 592; 2 B. & P. 268; 3 B. & P 235; 5 East,
225; 1 J. P. Smith 411 5 Esp. 194; 3 Campb. 480; Gow, N. P. C. 13; 2 A. & E.
57; 4 N. & M. 64; 6 N. & M. 494.

CONTRIBUTIONS, public law. Taxes or money contributed to the support of the
government.
2. Contributions are of three kinds, namely: first, those which arise
from persons on account of their property, real or personal, or which are
imposed upon their industry; those which are laid on and paid by real
estate without regard to its owner; and those to which personal property
is subject, in its transmission from hand to hand, without regard to the
owner. See Domat, Dr. Publ. 1. 1, t. 5, s. 2, n. 2.
3. this is a generic term which includes all kinds of impositions for
the public benefit. See Duties; Imports; Taxes.
4. By contributions is also meant forced levy of money or property by a
belligerent in a hostile country which he occupies, by which means the
country is made to contribute to the support of the army of occupation.
These contributions are usually taken instead of pillage. Vatt. Dr. des
Gens, liv. 3, 9, Sec. 165; Id. liv. 4, c. 3, Sec. 29.

CONTROLLERS. Officers who are appointed, to examine the accounts of other
officers. More usually written comptrollers. (q.v.)

CONTROVER, obsolete. One who invents false news. 2 Inst. 227.

CONTROVERSY. A dispute arising between two or more persons. It differs from
case, which includes all suits criminal as well as civil; whereas
controversy is a civil and not a criminal proceeding. 2 Dall. R. 419, 431,
432; 1 Tuck. Bl. Com. App. 420, 421; Story, Const. Sec. 1668.
2. By the constitution of the United States the judicial power shall
extend to controversies to which the United States shall be a party. Art. 2,
1. The meaning to be attached to the word controversy in the constitution,
is that above given.

CONTUBERNIUM, civ. law. As among the Romans, slaves had no civil state,
their marriages, although valid according to natural law, when contr acted
with the consent of their masters, and when there was no legal bar to them,
yet were without civil effects; they having none except what arose from
natural law; a marriage of this kind was called contubernium. It was so
called whether both or only one of the parties was a slave. Poth. Contr. de
Mariage, part 1, c. 2, Sec. 4. Vicat, ad verb.

CONTUMACY, civil law. The refusal or neglect of a party accused to appear
and answer to a charge preferred against him in a court of justice. This
word is derived from the Latin contumacia, disobedience. 1 Bro. Civ. Law,
455; Ayl. Parer. 196; Dig. 50, 17, 52; Code Nap. art. 22.
2. Contumacy is of two kinds, actual and presumed: actual contumacy is
when the party before the court refuses to obey some order of the court;
presumed contumacy is the act of refusing or declining to appear upon being
cited. 3 Curt. Ecc. R. 1.

CONTUMAX, civ. law. One accused of a crime who refuses to appear and answer
to the charge. An outlaw.

CONTUSION, med. jurisp. An injury or lesion, arising from the shock of a
body with a large surface, which presents no loss of substance, and no
apparent wound. If the skin be divided, the injury takes the name of a
contused wound. Vide 1 Ch. Pr, 38; 4 Carr. & P. 381, 487, 558, 565; 6 Carr.
& P. 684; 2 Beck's Med. Jur. 178.

CONUSANCE, CLAIM OF, English law. This is defined to be an intervention by a
third person, demanding judicature in the cause against the plaintiff, who
has chosen to commence his action out of claimant's court. 2 Wilson's R.
409.
2. It is a question of jurisdiction between the two courts Fortesc. R.
157; 5 Vin. Abr. 588; and not between the plaintiff and defendant, as in the
case of plea to the jurisdiction, and therefore it must be demanded by the
party entitled to conusance, or by his representative, and not by the
defendant or his attorney. Id. ibid. A plea to the jurisdiction must be
pleaded in person, but a claim of conusance may be made by attorney. 1 Chit.
Pl. 403.
3. There are three sorts of conusance. 1. Tentere placita, which does
not oust another court of its jurisdiction, but only creates a concurrent
one. 2. Cognitio placitorum, when the plea is commenced in one court, of
which conusance belongs to another. 3. A conusance of exclusive
jurisdiction; as that no other court shall hold pica, &c. Hard. 509 Bac. Ab.
Courts, D.

CONUSANT. One who knows as if a party knowing of an agreement in which he
has an interest, makes no objection to it, he is said to be conusant. Co.
Litt. 157.

CONUSOR. The same as cognizor; one who passes or acknowledges a fine of
lands or tenements to another. See Consignor.

CONVENE, civil law. This is a technical term, signifying to bring an action.

CONVENTIO, canon law. The act of convening or calling together the parties,
by summoning the defendant. Vide Reconvention. When the defendant was
brought to answer, he was said to be convened, which the canonists called
conventio, because the plaintiff and defendant met to contest. Sto. Eq. Pl.
Sec. 402; 4 Bouv. Inst. n. 4117.

CONVENTION, contracts, civil law. A general term which comprehends all kinds
of contracts, treaties, pacts, or agreements. It is defined to be the
consent of two or more persons to form with each other an engagement, or to
dissolve or change one which they had previously formed. Domat, Lois Civ. 1.
1, t. 1, s. 1 Dig. lib. 2, t. 14, 1. 1 Lib. 1, t. 1, 1. 1, 4 and 5; 1 Bouv.
Inst. n. 100.

CONVENTION, legislation. This term is applied to a selecting of the
delegates elected by the people for other purposes than usual legislation.
It is mostly used to denote all assembly to make or amend the constitution
of, a state, but it sometimes indicates an assembly of the delegates of the
people to nominate officers to be supported at an election.

CONVERSANT. One who is in the habit of being in a particular place, is said
to be conversant there. Barnes, 162.

CONVERSION. torts. the unlawful turning or applying the personal goods of
another to the use of the taker, or of some other person than the, owner; or
the unlawful destroying or altering their nature. Bull. N. P. 44; 6 Mass.
20; 14 Pick. 356; 3 Brod. & Bing. 2; Cro. Eliz. 219 12 Mod. 519; 5 Mass.
104; 6 Shepl. 382; Story, Bailm. Sec. 188, 269, 306; 6 Mass. 422; 2 B. & P.
488; 3 B. & Ald. 702; 11 M. & W. 363; 8 Taunt. 237; 4 Taunt. 24.
2. When a party takes away or wrongfully assumes the right to goods
which belong to another, it will in general be sufficient evidence of a
conversion but when the original taking was, lawful, as when the party found
the goods, and the detention only is illegal, it is absolutely necessary to
male a demand of the goods, and there must be a refusal to deliver them
before the conversion will, be complete. 1 Ch. Pr. 566; 2 Saund. 47 e, note
1 Ch. Pl. 179; Bac. Ab. Trover, B 1 Com. Dig. 439; 3 Com. Dig. 142; 1 Vin.
Ab. 236; Yelv. 174, n.; 2 East, R. 405; 6 East, R. 540; 4 Taunt. 799 5 Barn.
& Cr. 146; S. C. 11 Eng. C. L. Rep. 185; 3 Bl. Com. 152; 3 Bouv. Inst. n.
3522, et seq. The refusal by a servant to deliver the goods entrusted to him
by his master, is not evidence of a conversion by his master. 5 Hill, 455.
3. The tortious taking of property is, of itself, a conversion 15 John.
R. 431 and any intermeddling with it, or any exercise of dominion over it,
subversive of the dominion of the owner, or the nature of the bailment, if
it be bailed, is, evidence of a conversion. 1 Nott & McCord, R. 592; 2 Mass.
R. 398; 1 Har. & John. 519; 7 John. R. 254; 10 John. R. 172 14 John. R. 128;
Cro. Eliz. 219; 2 John. Cas. 411. Vide Trover.

CONVERSION, in equity, The considering of one thing as changed into another;
for example, land will be considered as converted into money, and treated as
such by a court of equity, when the owner has contracted to sell his estate
in which case, if he die before the conveyance, his executors and not his
heirs will be entitled to the money. 2 Vern. 52; S., C. 3 Chan. R. 217; 1
B1. Rep. 129. On the other hand, money is converted into land in a variety
of ways as for example, when a man agrees to buy land, and dies before he
has received the conveyance, the money he was to pay for it will be
considered as converted into lands, and descend to the heir. 1 P. Wms. 176 2
Vern. 227 10 Pet. 563; Bouv. Inst. Index, h.t.

CONVEYANCE, contracts. The transfer of the title to land by one or more
persons to another or others. By the term persons is here understood not
only natural persons but corporations. The instrument which conveys the
property is also called a conveyance. For the several kinds of conveyances
see Deed. Vide, generally, Roberts on Fraud. Conv. passim; 16 Vin. Ab. 138;
Com. Dig. Chancery, 2 T 1; 3 M 2; 4 S 2; Id. Discontinuance, C 3, 4, 5; Id.
Guaranty, D; Id. Pleader, C 37; Id. Poiar, C 5; Bouv. Inst. Index, h.t. The
whole of a conveyance, when it consists of different parts or instruments,
must be taken together, and the several parts of it relate back to the
principal part; 4 Burr. Rep. 1962; as a fine; 2 Burr. R. 704; or a recovery;
2 Burr. Rep. 135. 2. When there is no express agreement to the contrary, the
expense of the conveyance falls upon the purchaser; 2 Ves. Jr. 155, note;
who must prepare and tender the conveyance but see contra, 2 Rand. 20. The
expense of the execution of the conveyance is, on the contrary, always borne
by the vendor. Sugd. Vend. 296; contra, 2 Rand. 20; 2 McLean, 495. Vide 5
Mass. R. 472; 3 Mass. 487; Eunom. Dial. 2, 12; Voluntary Conveyance.

CONVEYANCE OF VESSELS. The act of congress, approved the 29th July, 1850,
entitled an act to provide for recording the conveyances of vessels and for
other purposes, enacts that no bill of sale, mortgage, hypothecation or
conveyance of any vessel, or part of any vessel of the United States, shall
be valid against any person, other than the grantor or mortgagor, his heirs
and devisees, and persons having actual notice thereof, unless such, bill of
sale, mortgage, hypothecation or conveyance be recorded in the office of the
collector of the customs, where such vessel is registered or enrolled.
Provided, that the lien by bottomry on any vessel, created during her
voyage, by a loan of money or materials necessary to repair or enable such
vessel to prosecute a voyage, shall not lose its priority or be in any way
affected by the provisions of the act. See. 2 enacts, that the collectors of
the customs shall record all such bills of sale, mortgages, hypothecations
or conveyances, and also all certificates for discharging and cancelling any
such conveyances, in a book or books to be kept for that purpose, in the
order of their reception; noting in said book or books, and also on the bill
of sale, mortgage, hypothecation or conveyance, the time when the same was
received; and shall certify on the bill of sale, mortgage, hypothecation or
conveyance, or certificate of discharge or cancellation, the number of the
book and page where recorded and shall receive, for so recording such
instrument of conveyance or certificate of discharge, fifty cents. Sec. 3
enacts, that the collectors of the customs shall keep an index of such
records, inserting alphabetically the names of the vendor or mortgagor, and
of the vendee or mortgagee, and shall permit said index and books of
'records to be inspected during office hours, under such reasonable
regulations as they may establish and shall, when required, furnish to any
person a certificate setting forth the names of the owners of any vessel
registered or enrolled, the parts or proportions owned by each, if inserted
in the register or enrollment, and also the material facts of any existing
bill of sale, mortgage, hypothecation, or other incumbrance upon such
vessel, recorded since the issuing of the last register or enrollment; viz.
the date, amount of such incumbrance, and from and to whom or in whose favor
made. The collector shall receive for each such certificate one dollar. Sec.
4. By this section it is enacted, that the collectors of the customs shall
furnish certified copies of such records, on the receipt of fifty cents for
each bill of sale, mortgage, or other conveyance. Sect. 5. This section
provides that the owner or agent of the owner of any vessel of the United
States, applying to a collector of the customs for a register or enrollment
of a vessel, shall, in addition to the oath now prescribed by law, set
forth, in the oath of ownership, the part or proportion of such vessel
belonging to each owner, and the same shall be inserted in the register of
enrollment; and that all bills of sale of vessels registered or enrolled
shall set forth the part of the vessel owned by each person selling, and the
part conveyed to each person purchasing.

CONVEYANCER. One who makes it his business to draw deeds of conveyance of
lands for others., 3 Bouv. Inst. n. 2422.
2. It is usual also for conveyancers to act as brokers for the seller.
In these cases the conveyancer should examine with scrupulous exactness into
the title of the lands which are conveyed by his agency, and, if this be
good, to be very cautious that the estate be, not encumbered. In cases of
doubt he should invariably propose to his employer to take the advice of his
counsel.
3. Conveyancers also act as brokers for the loan of money on real
estate, Secured by mortgage. The same care should be observed in these
cases.

CONVICIUM, civil law. The name of a species of slander, or, in the meaning
of the civil law, injury, uttered in pubic, and which charged some one with
some act contra bonos mores. Vicat, ad verb; Bac. Ab. Slander.

CONVICT. One who has been condemned by a competent court. This term is wore
commonly applied to one who has been convicted of a crime or misdemeanor.
There are various local acts which punish the importation of convicts.

CONVICTION, practice. A condemnation. In its most extensive sense this word
signifies the giving judgment against a defendant, whether criminal or
civil. In a more limited sense, it means, the judgment given against the
criminal. And in its most restricted sense it is a record of the summary
proceedings upon any penal statute before one or more justices of the peace,
or other persons duly authorized, in a case where the offender has been
convicted and sentenced: this last is usually termed a summary conviction.
2. As summary. convictions have been introduced in derogation of the
common law, and operate to the exclusion of trial by jury, the courts have
required that the strict letter of the statute should be observed 1 Burr.
Rep. 613 and that the magistrates should have been guided by rules similar
to those adopted by the common law, in criminal prosecution, and founded in
natural justice; unless when the statute dispenses with the form of stating
them.
3. The general rules in relation to convictions are, first, it must be
under the hand and seal of the magistrate before whom it is taken; secondly,
it must be in the present tense, but this, perhaps, ought to extend only to
the judgment; thirdly, it must be certain; fourthly, although it is well to
lay the offence to be contra pacem, this is not indispensable; fifthly, a
conviction cannot be good in part and bad in part.
4. A conviction usually consists of six parts; first, the information;
which should contain, 1. The day when it was taken. 2. The place where it
was taken. 3. The name of the informer. 4. The name and style of the
justice or justices to whom it was given. 5. The name of the offender. 6.
The time of committing the offence. 7. The place where the offence was
committed. 8. An exact description of the offence.
5. Secondly, the summons.
6. Thirdly, the appearance or non-appearance of the defendant.
7. Fourthly, his defence or confessions.
8. Fifthly, the evidence. Dougl. 469; 2 Burr. 1163; 4 Burr. 2064.
9. Sixthly, the judgment or adjudication, which should state, 1. That
the defendant is convicted. 2. The forfeiture or penalty. Vide Bosc. on
Conviction; Espinasse on Penal Actions; 4 Dall. 266; 3 Yeates, 475; 1
Yeates, 471. As to the effect of a conviction as evidence in a civil case,
see 1 Phil. Ev. 259; 8 Bouv. Inst. 3183.

CONVOCATION, eccles. law. This word literally signifies called together. The
assembly of the representatives of the clergy. As to the powers of
convocations, see Shelf. on M. & D. 23., See Court of Convocation.

CONVOY, mar. law. A naval force under the command of an officer appointed by
government, for the protection of merchant ships and others, during the
whole voyage, or such part of it as is known to require such protection.
Marsh. Ins. B. 1, c. 9, s. 5 Park. Ins. 388.
2. Warranties are sometimes inserted in policies of insurance that the
ship shall sail with convoy. To comply with this warranty, five things are
essential; first, the ship must sail with the regular convoy appointed by
the government; secondly, she must sail from the place of rendezvous
appointed by government; thirdly, the convoy must be for the Voyage;
fourthly, the ship insured must have sailing instructions; fifthly, she must
depart and continue with the convoy till the end of the voyage, unless
separated by necessity. Marsh. Ins. B. 1, c. 9, s. 5.

CO-OBLIGOR, contracts. One who is bound together with one or more others to
fulfill an obligation. As to what will constitute a joint obligation, see 5
Bin. 199; Windham's Case, 5 Co. 7; 2 Ev. Poth. 63; Ham. Parties, 29, 20, 24;
1 Saund. 155; Saunders, Arguendo and note 2; 5 Co. 18 b, 19 a, Slingsly's
Case. He may be jointly, or severally bound.
2. When obligors are jointly and not severally bound to pay a joint
debt, they must be sued jointly during their joint lives, and after the
death of some of them, the survivors alone can be sued; each is bound to pay
the whole debt, having recourse to the others for contribution. See 1 Saund.
291, n. 4; Hardress, 198; 2 Ev. Poth. 63, 64, 66. Yet an infant co-obligor
need not be joined, for his infancy may be replied to a plea of non-joinder
in abatement. 3 Esp. 76; 5 Esp. 47; also, see 5 Bac. Abr. 163-4; 2 Vern. 99;
2 Moss. Rep. 577; 1 Saund. 291 b, n. 2; 6 Serg. & R. 265, 266; 1 Caines'
Cases in Err. 122.
3. When co-obligors are severally bound, each may be sued separately;
and in case of the death of any one of them, his executors or administrators
may be sued.
4. On payment of the obligation by any one of them, when it was for a
joint debt, the payer is entitled to contribution from the other co-
obligors.

COOL BLOOD. A phrase sometimes used to signify tranquillity, or calmness;
that is, the condition of one who has the calm and undisturbed use of his
reason. In cases of homicide, it frequently becomes necessary to. ascertain
whether the act of the person killing was done in cool blood or not, in
order to ascertain the degree of his guilt. Bac. Ab. Murder, B; Kiel 56 Sid.
177 Lev. 180. Vide Intention; Murder; Manslaughter; Will.

CO-OPTATION. A concurring choice. Sometimes applied to the act of the
members of a corporation, in choosing a person to supply a vacancy. in their
body.

COPARCENERS, estates. Persons on whom lands of inheritance descend from
their ancestor. According to the English law, there must be no males; that
is no the rule in this country. Vide Estates in Coparcenary, and 4 Kent,
Com. 262; 2 Bouv. Inst. n. 187 L 2.

COPARTNER. One who is a partner with one or more other persons; a member of
a partnership.

COPARTNERSHIP. This word is frequently used in the sense of partnership.
(q.v.)

CO-PLAINTIFF. One who is plaintiff in an action with another.

COPULATIVE TERM. One which is placed between two or more others to join them
together: the word and is frequently used for this purpose. For example, a
man promises to pay another a certain sum of money, and to give his note for
another sum: in this case he must perform both.
2. But the copulative may sometimes be construed into a disjunctive,
(q.v.) as, when things are copulated which cannot possibly be so; for
example, "to die testate and intestate." For examples of construction of
disjunctive terms, see the cases cited at the word Disjunctive, and Ayl.
Pand. 55; 5 Com. Dig. 338; Bac. Ab. Conditions, P 5; Owen, 52; Leon. 74;
Golds. 71; Roll. Ab. 444; Cro. Jac. 594.

COPY. A copy is a true transcript of an original writing.
2. Copies cannot be given in evidence, unless proof is made that the
originals, from which they are taken, are lost, or in the power of the
opposite party; and in the latter case, that notice has been given him to
produce the original. See 12 Vin. Abr. 97; Phil. Ev. Index, h.t.; Poth.
Obl. Pt. 4, c. 1, art. 33 Bouv. Inst. n. 3055. 3. To prove a copy of a
record, the witness must be able to swear that he has examined it, line for
line, with the original, or has examined the copy, while another person read
the original. 1 Campb. R. 469. It is not requisite that the persons
examining should exchange, papers, and read them alternately. 2 Taunt. R.
470. Vide, generally, 3 Bouv. Inst. n. 3106-10; 1 Stark. R. 183; 2 E. C. L.
Rep. 183; 4 Campb. 372; 2 Burr.1179; B.N.P.129; 1 Carr. & P. 578. An
examined copy of the books of unincorporated banks are not, per se,
evidence. 12 S. & R. 256. See 13 S. & R. 135, 334; 2 N. & McC. 299.

COPYRIGHT. The property which has been secured to the author of a book, map,
chart, or musical composition, print, cut or engraving, for a limited time,
by the constitution and laws of the United States. Lord Mansfield defines
copy, or as it is now termed copyright, as follows: I use the word copy in
the technical sense in which that name or term has been used for ages, to
signify an incorporeal right to the sole printing and publishing of
something intellectual, communicated by letters. 4 Burr. 3296; Merl. Repert.
mot Contrefacon.
2. This subject will be considered by taking a view of, 1. The
legislation of the United States. 2. Of the persons entitled to a copyright.
3. For what it is granted. 4. Nature of the right. 5. Its duration. 6.
Proceedings to obtain Such right. 7. Requisites after the grant. 8.
Remedies. 9. Former grants.
3.-1. The legislation of the United States. The Constitution of the
United States, art. 1, s. 8, gives power to congress "to promote the
progress of science, and the useful arts, by securing, for limited times, to
authors and inventors, the exclusive right to their respective writings and
discoveries. In pursuance of this constitutional authority, congress passed
the act of May 31, 1790; 1 Story's L. U. S. 94, and the act of April 29,
1802, 2 Story's L. U. S. 866, but now repealed by the act of February 3,
1831, 4 Shars. Cont. of Story, 2221, saving, always such rights as may have
been obtained in conformity to their provision. By this last mentioned act,
entitled "An act to amend the several acts respecting copyrights," the
subject is now regulated.
4.-2. Of the persons entitled to a copyright. Any person or persons,
being a citizen or citizens of the United States, or resident therein, who
is the author or authors of any book or books, map, chart, or musical
composition, or who has designed, etched, engraved, worked, or caused to be
engraved, etched or worked from his own design, any print or engraving, and
the executors, administrators, or legal representatives of such person or
persons. Sect. 1, and sect. 8.
5.-3. For what work the copyright is granted. The copyright is
granted for any book or books, map, chart, or musical composition, which may
be now, (February 3, 1831, the date of the act,) made or composed, and not
printed or published, or shall hereafter be made or composed, or any print
or engraving, which the author has invented, designed, etched, engraved or
worked, or caused to be engraved, etched or worked from his own design.
Sect. 1.
6.-4. Nature of the right. The person or persons to whom a copyright
has been lawfully granted, have the sole right and liberty of printing,
reprinting, publishing and vending such book or books, map, chart, musical
composition, print, out or engraving, in whole or in part. Sect. 1.
7.-5. Duration of the copyright. The right extends for the term of
twenty-eight Years from the time of recording the title of the book, &c., in
the office of the clerk of the court, as directed by law. Sect. 1.
8. But this time may be extended by the following provisions of the
act.
9. Sect. 2. If, at the expiration of the aforesaid term of years, such
author, inventor, designer, engraver, or any of them, where the work had
been originally composed and made by wore than one person, be still living,
and a citizen or citizens of the United States, or resident therein, or
being dead, shall have left a widow, or child, or children, either or all
then living, the same exclusive right shall be continued to such author,
designer, or engraver, or if dead, then to such widow and child, or
children, for the further term of fourteen years: Provided, that the title
of the work so secured shall be a second time recorded, and all such other
regulations as are herein required in regard to original copyrights, be
complied with in respect to such renewed copyright, and that within six
months before the expiration of the first term.
10. Sect. 3. In all cases of renewal of copyright under this act, such
author or proprietor shall, within two months from the date of, said
renewal, cause a copy of the record thereof to be published in one or more
of the newspapers printed in the United States, for the space of four weeks.
11.-Sect. 16. Whenever a copyright has been heretofore obtained by an
author or authors, inventor, designer, or engraver, of any book, map, chart,
print, cut, or engraving, or by a proprietor of the same; if such author or
authors, or either of them such inventor, designer, or engraver, be living
at the passage of this act, then, such author or authors, or the survivor of
them, such inventor, engraver, or designer, shall continue to have the same
exclusive right to his book, chart, map, print, cut or engraving, with the
benefit of each and all the provisions of this act, for the security
thereof, for such additional period of time as will, together with the tune
which shall have elapsed from the first entry of such copyright, make up the
term of twenty-eight years, with the same right to his widow, child, or
children, to renew the copyright, at the expiration thereof, as is provided
in relation to copyrights originally secured under this act. And if such
author or authors, inventor, designer, or engraver, shall not be living at
the passage of this act, then, his or their heirs, executors and
administrators, shall be entitled to the like exclusive enjoyment of said
copyright, with the benefit of each and all the provisions of this act for
the security thereof, for the period of twenty-eight years from the first
entry of said copyright with the like privilege of renewal to the widow,
child, or children, of author or authors, designer, inventor, or engraver,
as is provided in relation to copyrights originally secured under this act.
12.-6. Proceedings to obtain a copyright. No person shall be entitled
to the benefit of this act, unless he shall, before publication, deposit a
printed copy of the title of such book, or books, map, chart, musical
composition, print, out, or engraving, in the clerk's office of the district
court of the district wherein the author or proprietor shall reside, and the
clerk of such court is hereby directed and required to record the same
therein forthwith, in a book to be kept for that purpose, in the words
following (giving a copy of the title under the seal of the court, to the
said author or proprietor, whenever he shall require the same:) "District
of_____to wit: Be it remembered, that on the _____ day of ______ Anno
Domini, A. B. of the said district, hath deposited in this office the title
of a book, (map, chart, or otherwise, as the case may be,) the title of
which is in the words following, to wit; (here insert the title;) the right
whereof he claims as author (or proprietor, as the case may be in conformity
with an act of congress, entitled 'An act to amend the several acts
respecting copyrights.' C. D. clerk of the district." For which record, the
clerk shall be entitled to receive from the person claiming such right as
aforesaid, fifty cents; and the like sum for every copy, under seal,
actually given to such person or his assigns. The act to establish the
Smithsonian Institution, for the increase and diffusion of knowledge among
men, enacts, section 10, that the author or proprietor of any book, map,
chart, musical composition, print, cut, or engraving, for, which a copyright
shall be secured under the existing acts of congress, or those 'which shall
hereafter be enacted respecting copyrights, shall, within three months from
the publication of said book, etc., deliver or cause to be delivered, one
copy of the same to the librarian of the Smithsonian Institution, and one
copy to the librarian, of Congress Library, for the use of the said
libraries.
13.- 7. Requisites after the grant. No person shall be entitled to the
benefit of this act, unless he shall give information of copyright being
secured, by causing to be inserted, in the several copies of each and every
edition published during the term secured, on the title page, or the page
immediately following, if it be a book, or, if a map, chart, musical
composition, print, cut, or engraving, by causing to be impressed on the
face thereof, or if a volume of maps, charts, music or engravings, upon the
title or frontispiece thereof, the following words, viz: "Entered according
to act of congress, in the year by A. B., in the clerk's office of the
district court of ___________________" (as the case may be.)
14. The author or proprietor of any such book, map, chart, musical
composition, print, cut, or engraving, shall, within three months from the
publication of said book, map, chart, musical composition, print, cut, or
engraving, deliver or cause to be delivered a copy. of the same to the clerk
of said district. And it shall be the duty of the clerk of each district
court, at least once in every year, to transmit a certified list of all such
records of copyright, including the titles so recorded, and the date of
record, and also all the several copies of books or other works deposited in
his office, according to this act, to the secretary of state, to be
preserved in his office.
15.-8. The remedies may be considered with regard, 1. To the penalties
which may be incurred. 2. The issue in actions under this act. 3. The costs.
4. The limitation.
16.-1. The penalties imposed by this act relate, first, to the
violation of the copyright of books secondly, the violation of the copyright
of prints, outs or engravings, maps, charts, or musical compositions
thirdly, the printing or publishing of any manuscripts without the consent
of the author or legal proprietor; fourthly, for inserting in any book, &c.,
that the copyright has been secured contrary to truth.
17.-First. If any other person or persons, from and after recording
the title of any book or books, according to this act, shall, within the
term or terms herein limited, print, publish, or import, or cause to be
printed, published, or imported, any copy of such book or books, without the
consent of the person legally entitled to the copyright thereof, first had
and obtained in writing, signed in presence of two or more credible
witnesses, or shall, knowing the same to be so printed or imported, publish,
sell, or expose to sale, or cause to be published, sold, or exposed to sale,
any copy of such book, without such consent in writing, then such offender
Shall forfeit every copy of such book to the person legally, at the time,
entitled to the copyright thereof and shall also forfeit and pay fifty cents
for every such sheet which may be found in his possession, either printed or
printing, published, imported, or exposed to sale, contrary for the intent
of this act; the one moiety thereof to such legal owner of the copyright as
aforesaid, and the other to the use of the United States; to be recovered by
action of debt in any court having competent jurisdiction thereof.
18.-Secondly. If any person or persons, after the recording the title
of any print, cut or engraving, map, chart, or musical composition,
according to the provisions of this act, shall, within the term or terms
limited by this act, engrave, etch, or work, sell, or Copy, or cause to be
engraved, etched, worked, or sold, or copied, either on the whole, or by
varying, adding to, or diminishing the main design, with intent to evade the
law, or shall print or import for sale, or cause to be printed or imported
for sale, any such map, chart, musical composition, print, cut, or
engraving, or any parts thereof, without the consent of the proprietor or
proprietors of the copyright thereof, first obtained in writing, signed in
the presense of two credible witnesses; or, knowing the same to be so
printed or imported, without such consent, shall publish, sell, or expose to
sale, or in any manner dispose of any such map, chart, musical composition,
engraving, cut, or print, without such consent, as foresaid; then such
offenders shall forfeit the plate or plates on which such map, chart,
musical composition, engraving, cut, or print, shall be copied, and also all
and every sheet thereof so copied or printed, as aforesaid, to the
proprietor or proprietors of the copyright thereof; and shall further
forfeit one dollar for every sheet of such map, chart, musical composition,
print, cut, or engraving, which may be found in his or their possession,
printed or published, or exposed to sale, contrary to the true intent and
meaning of this act; the one moiety thereof to the proprietor or
proprietors, and the other moiety to the use of the United States, to be
recovered in any court having competent jurisdiction thereof.
19. Nothing in this act shall be construed to extend to prohibit the
importation or vending, printing or publishing, of any map, chart, book,
musical composition, print, or engraving, written, composed, or made by any
person not being a citizen of the United States, nor resident within the
jurisdiction thereof.
20. Thirdly. Any person or persons, who shall print or publish any
manuscript whatever, without the consent of the author or legal proprietor
first obtained as aforesaid, (if such author or proprietor be a citizen of
the United States, or resident therein,) shall be liable to suffer and pay
to the author or proprietor all damages occasioned by such injury, to be
recovered by a special action on the case founded upon this act, in any
court having cognizance thereof; and the several courts of the United States
empowered to grant injunctions to prevent the violation of the rights of
authors and inventors, are hereby empowered to grant injunctions, in like
manner, according to the principles of equity, to restrain such publication
of any manuscript, as aforesaid.
21.-Fourthly. If any person or persons, from and after the passing of
this act, shall print or publish any book, map, chart, musical composition,
print, cut, or engraving, not having legally acquired the copyright thereof,
and shall insert or impress that the same hath been entered according to act
of congress, or words purporting the same, every person so offending shall
forfeit and pay one hundred dollars; one moiety thereof to the person who
shall sue for the same, and the other to the use of the United States, to be
recovered by action of debt, in any court of record leaving cognizance
thereof.
22.-2. The issue. If any person or persons shall be sued or
prosecuted, for any matter, act or thing done under or by virtue of this
act, he or they may plead the general issue, and give the special matter in
evidence.
23.-3. The costs. In all recoveries under this act, either for
damages, forfeitures, or penalties, full costs shall be allowed thereon,
anything in any former act to the contrary notwithstanding.
24.-4. The limitation of actions is regulated as follows. No action or
prosecution shall be maintained in any case of forfeiture or penalty under
this act, unless the same shall have been commenced within two years after
the cause of action shall have arisen.
25.-9. Former grants. All and several the provisions of this act,
intended for the protection and security of. copyrights, and providing
remedies, penalties, and forfeitures in case of violation thereof, shall be
held and construed to extend to the benefit of the legal proprietor or
proprietors of each and every copyright heretofore obtained, according to
law, during the term thereof, in the same manner as if such copyright had
been entered and secured according to the directions of this act. And by the
16th section it is provided that this act shall not extend to any copyright
heretofore secured, the term of which has already expired.
26. Copyrights are secured in most countries of Europe. In Great
Britain, an author has a copyright in his work absolutely for twenty-eight
years, and if he be living at the end of that period, for the residue of his
life. In France, the copyright of an author extends to twenty years after
his death. In most, if not in all the German states, it is perpetual; it
extends only over the state in which it is granted. In Russia, the right of
an author or translator continues during his life, and his heirs enjoy the
privilege twenty-five years afterwards. No manuscript or printed work of an
author can be sold for his debts. 2 Am. Jur. 253, 4. Vide, generally, 2 Am.
Jur. 248; 10 Am. Jur. 62; 1 Law Intell. 66; and the articles Literary
property; Manuscript.

COPYHOLD, estate in the English law. A copyhold estate is a parcel of a
manor, held at the will of the lord, according to the custom of the manor,
by a grant from the lord, and admittance of the tenant, entered on the rolls
of the manor court. Cruise, Dig. t. 10, c. 1, s. 3. Vide Ch. Pr. Index, h.t.

CORAM. In the presence of; before. Coram nobis, before us; coram vobis,
before you; coram non judice, is said of those acts of a court which has no
jurisdiction, either over the person, the, cause, or the process. 1 Con. 40.
Such acts have no validity. Where a thing is required to be done before a
particular person, it would not be considered as done before him, if he were
asleep or non compos. Vide Dig. 4, 8, 27, 5; Dane's Ab. Index, h.t.; 5
Harr. & John. 42; 8 Cranch, 9; Paine's R. 55; Bouv. Inst. Index, h.t.

CORD, measures. A cord of wood must, when the wood is piled close, measure
eight feet by four, and the wood must be four feet long. There are various
local regulations in our principal cities as to the manner in which wood
shall be measured and sold.

CORN. In its most comprehensive sense, this term signifies every sort of
grain, as well as peas and beans, this is its meaning in the memorandum
usually contained in policies of insurance. But it does not include rice. 1
Park. Ins. 112; Marsh. Ins. 223, note; Stev. on Av. part 4, art. 2; Ben. on
Av. eh. 10; 1 Marsh. Ins. 223; Park on Ins. 112; Wesk. Ins. 145. Vide Com.
Dig. Biens, G 1.

CORNAGE. The name of a species of tenure in England. The tenant by cornage
was bound to blow a horn for the sake of alarming the country on the
approach of an enemy. Bac. Ab. Tenure, N.

CORNET. A commissioned officer in a regiment of cavalry.

CORODY, incorporeal hereditaments. An allowance of meat, drink, money,
clothing, lodging, and such like necessaries for sustenance. 1 Bl. Com. 282;
1 Ch. Pr. 225.

CORONER. An officer whose principal duty it is to hold an inquisition, with
the assistance of a jury, over the body of any person who may have come to a
violent death, or who has died in prison. It is his duty also, in case of
the death of the sheriff, or when a vacancy happens in that office, to serve
all the writs and process which the sheriff is usually bound to serve. The
chief justice of the King's Bench is the sovereign or chief coroner of all
England, although it is not to be understood that he performs the active
duties of that office in any one count. 4 Rep. 57, b. Vide Bac. Ab. h.t.; 6
Vin. Ab.242; 3 Com. Dig. 242; 5 Com. Dig. 212; and the articles Death;
Inquisition.
2. The duties of the coroner are of the greatest consequence to
society, both for the purpose of bringing to punishment murderers and other
offenders against the lives of the citizens, and of protecting innocent
persons from criminal accusations. His office, it is to be regretted, is
regarded with too much indifference. This officer should be properly
acquainted with the medical and legal knowledge so absolutely indispensable
in the faithful discharge of his office. It not unfrequently happens that
the public mind is deeply impressed with the guilt of the accused, and when
probably he is guilty, and yet the imperfections of the early examinations
leave no alternative to the jury but to acquit. It is proper in most cases
to procure the examination to be made by a physician, and in some cases, it
is his duty. 4 Car. & P. 571.

CORPORAL. An epithet for anything belonging to the body, as, corporal
punishment, for punishment inflicted on the person of the criminal; corporal
oath, which is an oath by the party who takes it being obliged to lay his
hand on the Bible.

CORPORAL, in the army. A non-commissioned officer in a battalion of
infantry.

CORPORAL TOUCH. It was once decided that before a seller of personal
property could be said to have stopped it in transitu, so as to regain the
possession of it, it was necessary that it should come to his corporal
touch. 3 T. R. 466 5 East, 184. But the contrary is now settled. These words
were used merely as a figurative expression. 3 T. R. 464 5 East, 184.

CORPORATION. An aggregate corporation is an ideal body, created by law,
composed of individuals united under a common name, the members of which
succeed each other, so that the body continues the same, notwithstanding the
changes of the individuals who compose it, and which for certain purposes is
considered as a natural person. Browne's Civ. Law, 99; Civ. Code of Lo. art.
418; 2 Kent's Com. 215. Mr. Kyd, (Corpor. vol. 1, p. 13,) defines a
corporation as follows: "A corporation, or body politic, or body
incorporate, is a collection of many; individuals united in one body, under
a special denomination, having perpetual succession under an artificial
form, and vested by the policy of the law, with a capacity of acting in
several respects as an individual, particularly of taking and granting
property, contracting obligations, and of suing and being sued; of enjoying
privileges and immunities in common, and of exercising a variety of
political rights, more or less extensive, according to the design of its
institution, or the powers conferred upon it, either at the time of its
creation, or at any subsequent period of its existence." In the case of
Dartmouth College against Woodward, 4 Wheat. Rep. 626, Chief Justice
Marshall describes a corporation to be "an artificial being, invisible,
intangible, and existing only in contemplation of law. Being the mere
creature of law," continues the judge, "it possesses only those properties
which the charter of its creation confers upon it, either expressly or as
incidental to its very existence. These are such as are supposed best
calculated to effect the object for which it was created. Among the most
important are immortality, and if the expression may be allowed,
individuality properties by which a perpetual succession of many persons are
considered, as the same, and may act as the single individual, They enable a
corporation to manage its own affairs, and to hold property without the
perplexing intricacies, the hazardous and endless necessity of perpetual
conveyance for the purpose of transmitting it from hand to hand. It is
chiefly for the purpose of clothing bodies of men, in succession, with these
qualities and capacities, that corporations were invented, and are in use."
See 2 Bl. Corn. 37.
2. The words corporation and incorporation are frequently confounded,
particularly in the old books. The distinction between them is, however,
obvious; the one is the institution itself, the other the act by which the
institution is created.
3. Corporations are divided into public and private.
4. Public corporations, which are also called political, and sometimes
municipal corporations, are those which have for their object the government
of a portion of the state; Civil Code of Lo. art. 420 and although in such
case it involves some private interests, yet, as it is endowed with a
portion of political power, the term public has been deemed appropriate.
5. Another class of public corporations are those which are founded for
public, though not for political or municipal purposes, and the, whole
interest in which belongs to the government. The Bank of Philadelphia, for
example, if the whole stock belonged exclusively to the government, would be
a public corporation; but inasmuch as there are other owners of the stock,
it is a private corporation. Domat's Civil Law, 452 4 Wheat. R. 668; 9
Wheat. R. 907 8 M'Cord's R. 377 1 Hawk's R. 36; 2 Kent's Corn. 222.
6. Nations or states, are denominated by publicists, bodies politic,
and are said to have their affairs and interests, and to deliberate and
resolve, in common. They thus become as moral persons, having an
understanding and will peculiar to themselves, and are susceptible of
obligations and laws. Vattel, 49. In this extensive sense the United States
may be termed a corporation; and so may each state singly. Per Iredell, J. 3
Dall. 447.
7. Private corporations. In the popular meaning of the term, nearly
every corporation is public, inasmuch as they are created for the public
benefit; but if the whole interest does not belong to the government, or if
the corporation is not created for the administration of political or
municipal power, the corporation is private. A bank, for instance, may be
created by the government for its own uses; but if the stock is owned by
private persons, it is a private corporation, although it is created by the
government, and its operations partake of a private nature. 9 Wheat. R. 907.
The rule is the same in the case of canal, bridge, turnpike, insurance
companies, and the like. Charitable or literary corporations, founded by
private benefaction, are in point of law private corporations, though
dedicated to public charity, or for the general promotion of learning. Ang.
& Ames on Corp. 22.
8. Private corporations are divided into ecclesiastical and lay.
9. Ecclesiastical corporations, in the United States, are commonly
called religious corporations they are created to enable religious societies
to manage with more facility and advantage, the temporalities belonging to
the church or congregation.
10. Lay corporations are divided into civil and eleemosynary. Civil
corporations are created for an infinite variety of temporal purposes, such
as affording facilities for obtaining loans of money; the making of canals,
turnpike roads, and the like. And also such as are established for the
advancement of learning. 1 Bl. Com. 471.
11. Eleemosynary corporations are such as are instituted upon a
principle of charity, their object being the perpetual distribution of the
bounty of the founder of them, to such persons as he has directed. Of this
kind are hospitals for the relief of the impotent, indigent and sick, or
deaf and dumb. 1 Kyd on Corp. 26; 4 Conn. R. 272; Angell & A. on Corp. 26.
12. Corporations, considered in another point of view, are either sole
or aggregate.
13. A sole corporation, as its name implies, consists of only one
person, to whom and his successors belongs that legal perpetuity, the
enjoyment of which is denied to all natural persons. 1 Black Com. 469. Those
corporations are not common in the United States. In those states, however,
where the religious establishment of the church of England was adopted, when
they were colonies, together with the common law on that subject, the
minister of the parish was seised of the freehold, as persona ecclesiae, in
the same manner as in England; and the right of his successors to the
freehold being thus established was not destroyed by the abolition of the
regal government, nor can it be divested even by an act of the state
legislature. 9 Cranch, 828.
14. A sole corporation cannot take personal property in succession; its
corporate capacity of taking property is confined altogether to real estate.
9 Cranch, 43.
15. An aggregate corporation consists of several persons, who are'
united in one society, which is continued by a succession of members. Of
this kind are the mayor or commonalty of a city; the heads and fellows of a
college; the members of trading companies, and the like. 1 Kyd on Corp. 76;
2 Kent's Com. 221 Ang. & A. on Corp. 20. See, generally, Bouv. Inst. Index,
h.t.

CORPORATOR. One who is a member of a corporation.
2. In general, a corporator is entitled to enjoy all the benefits and
rights which belong to any other member of the corporation as such. But in
some corporations, where the rights are of a pecuniary nature, each
corporator is entitles to those rights in proportion to his interest; he
will therefore be entitled to vote only in proportion to the amount of his
stock, and be entitled to dividends in the same proportion.
3. A corporator is not in general liable personally for any act of the
corporation, unless he has been made so by the charter creating the
corporation.

CORPOREAL PROPERTY, civil law. That which consists of such subjects as are
palpable. In the common law, the term to signify the same thing is properly
in possession. It differs from incorporeal property, (q.v.) which consists
of choses in action and easements, as a right of way, and the like.

CORPSE. The dead body (q.v.) of a human being. Russ. & Ry. 366, n.; 2 T. R.
733; 1 Leach, 497; 16 Eng. Com. L. Rep. 413; 8 Pick. 370; Dig. 47, 12, 3, 7
Id. 11, 7, 38; Code, 3, 441.
2. As a corpse is considered as nullius bonis, or the property of no
one, it follows that stealing it, is not, at common law, a larceny. 3 Inst.
203.

CORPUS. A Latin word, which signifies body; as, corpus delicti, the body of
the offence, the essence of the crime; corpus juris canonis, the body of the
canon law; corpus juris civilis, the body of the Civil law.

CORPUS COMITATUS. The body of the county; the inhabitants or citizens of a
whole county, used in contradistinction to a part of a county, or a part of
its citizens. See 5 Mason, R. 290.

CORPUS JURIS CIVILIS. The body of the civil law. This, is the name given to
a collection of the civil law, consisting of Justinian's Institutes, the
Pandects or Digest, the Code, and the Novels.

CORPUS CUM CAUSA, practice. The writ of habeas corpus cum causa is a
writ commanding the person to whom it is directed, to have the body,
together with the cause for which he is committed, before the court or judge
issuing the same.

CORPUS DELICTI. The body of the offence; the essence of the crime
2. It is a general rule not to convict unless the corpus delicti can be
established, that is, until the dead body has been found. Best on Pres. Sec.
201; 1 Stark. Ev. 575, See 6 C. & P. 176; 2 Hale, P. C. 290. Instances have
occurred of a person being convicted of having killed another, who, after
the supposed criminal has been put to death for the supposed offence, has
made his appearance alive. The wisdom of the rule is apparent; but it has
been questioned whether, in extreme cases, it may not be competent to prove
the basis of the corpus delicti by presumptive evidence. 3 Benth. Jud. Ev.
234; Wills on Circum. Ev. 105; Best on Pres. Sec. 204. See Death.

CORPUS JURIS CANONICI. The body of the canon law. A compilation of the canon
law bears this name. See Law, canon.

CORRECTION,punishment. Chastisement by one having authority of a person who
has committed some offence, for the purpose of bringing him to legal
subjection.
2. It is chiefly exercised in a parental manner, by parents, or those
who are placed in loco parentis. A parent may therefore justify the
correction of the child either corporally or by confinement; and a
schoolmaster, under whose care and instruction a parent has placed his
child, may equally justify similar correction; but the correction in both,
cases must be moderate, and in proper manner. Com. Dig. Pleader, 3 M. 19;
Hawk. c. 60, s. 23, and c. 62, s. 2 c. 29, s. 5.
3. The master of an apprentice, for disobedience, may correct him
moderately 1 Barn. & Cres. 469 Cro. Car. 179 2 Show. 289; 10 Mart. Lo. It.
38; but he cannot delegate the authority to another. 9 Co. 96.
4. A master has no right to correct his servants who are not
apprentices.
5. Soldiers are liable to moderate correction from their superiors. For
the sake of maintaining their discipline on board of the navy, the captain
of a vessel, either belonging to the United States, or to private
individuals, may inflict moderate correction on a sailor for disobedience or
disorderly conduct. Abbott on Shipp. 160; 1 Ch. Pr. 73; 14 John. R. 119; 15
)lass. 365; 1 Bay, 3; Bee, 161; 1 Pet. Adm. Dec. 168; Molloy, 209; 1 Ware's
R. 83. Such has been the general rule. But by a proviso to an act of
congress, approved the 28th of September, l850, flogging in the navy and on
board vessels of commerce was abolished.
6. Any excess of correction by the parent, master, officer, or captain,
may render the party guilty of an assault and battery, and liable to all its
consequences. In some prisons, the keepers have the right to correct the
prisoners.

CORREGIDOR, Spanish law. A magistrate who took cognizance of 'various
misdemeanors, and of civil matters. 2 White's Coll. 53.

CORRELATIVE. This term is used to designate those things, one of which
cannot exist without another; for example, father and child; mountain and
valley, &c. Law, obligation, right, and duty, are therefore correlative to
each other.

CORRESPONDENCE. The letters written by one to another, and the answers
thereto, make what is called the correspondence of the parties.
2. In general, the correspondence of the parties contains the best
evidence of the facts to which it relates. See Letter, contracts; Proposal.
3. When an offer to contract is made by letter, it must be accepted
unconditionally for if the precise terms are changed, even in the slightest
degree, there is no contract. 1 Bouv. Inst. n. 904. See, as to the power of
revoking an offer made by letter, 1 Bouv. Inst. n. 933.

CORRUPTION. An act done with an intent to give some advantage inconsistent
with official duty and the rights of others. It includes bribery, but is
more comprehensive; because an act may be corruptly done, though the
advantage to be derived from it be not offered by another. Merl. Rep. h.t.

2. By corruption, sometimes, is understood something against law; as, a
contract by which the borrower agreed to pay the lender usurious interest.
It is said, in such case, that it was corruptly agreed, &c.

CORRUPTION OF BLOOD,, English crim. law. The incapacity to inherit, or pass
an inheritance, in consequence of an attainder to which the party has been
subject
2. When this consequence flows from an attainder, the party is stripped
of all honors and dignities he possessed, and becomes ignoble.
3. The Constitution of the United States, Amendm. art. 5, provides,
that no person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a grand jury, except in
cases arising in the land or naval, forces, or in the militia, when in
actual service in time of war or public danger" and by art. 3, s. 3, n. 2,
it is declared that "no attainder of treason shall work. corruption of
blood, or forfeiture, except during the life of the person attainted."
4. The Constitution of Pennsylvania, art. 9, s. 19, directs that "no
attainder shall work corruption of blood." 3 Cruise, 240, 378 to 381, 473 1
Cruise, 52 1 Chit. Cr. Law, 740; 4 Bl. Com. 388.

CORSNED, ancient Eng. law. This was a piece of accursed bread, which a
person accused of a crime swallowed to test his innocence. It was supposed
that, if he was guilty, it would choke him.

CORTES. The name of the legislative assemblies of Spain and Portugal.

COSENAGE, torts. Deceit, fraud: that kind of circumvention and wrong, which
has no other specific name. Vide Ayl. Pand. 103 Dane's Ab. Index, h.t.

COSMOPOLITE. A citizen of the world; one who has no fixed. residence. Vide
Citizen.

COSTS, practice. The expenses of a suit or action which may be recovered by
law from the losing party.
2. At common law, neither the plaintiff nor the defendant could recover
costs eonomine; but in all actions in which damages were recoverable, the
plaintiff, in effect, recovered his costs when he obtained a verdict, for
the jury always computed them in the damages. When the defendant obtained a
verdict, or the plaintiff became non-suit, the former was wholly without
remedy for any expenses he had incurred. It is true, the plaintiff was
amerced pro falso clamore suo, but the amercement was given to the king.
Hull on Costs, 2 2 Arch. Pr. 281.
3. This defect was afterwards corrected by the statute of Gloucester, 6
Ed. I, c. 1, by which it is enacted that "the demandant in assise of novel
disseisin, in writs of mort d'ancestor, cosinage, aiel and be sail, shall
have damages. And the demandant shall have the costs of the writ purchased,
together with damages, and this act shall hold place in all cases where the
party recovers damages, and every person shall render damages where land is
recovered against him upon his own intrusion, or his own act." About forty-
six years after the passing of this statute, costs were for the first time
allowed in France, by an ordinance of Charles le Bel, (January, 1324.) See
Hardw. Cas. 356; 2 Inst. 283, 288 2 Loisel, Coutumes, 328-9.
4. The statute of Gloucester has been adopted, substantially, in all
the United States. Though it speaks of the costs of the writ only, it has,
by construction, been extended to the costs of the suit generally. The costs
which are recovered under it are such as shall be allowed by the master or
prothonotary upon taxation, and not those expenses which the. plaintiff may
have. incurred for himself, or the extraordinary fees he may have paid
counsel, or for the loss of his time. 2 Sell. Pr. 429.
5. Costs are single, when the party receives the same amount he has
expended, to be ascertained by taxation; double, vide Double costs. and
treble, vide Treble costs. Vide, generally, Bouv. Inst. Index, h.t.;
Hullock on Costs; Sayer's Law of Costs; Tidd's Pr. c. 40; 2 Sell. Pr. c. 19;
Archb. Pr. Index, h.t.; Bac. Ab. h.t.; Com. Dig. h.t.; 6 Vin. Ab. 321;
Grah. Pr. c. 23 Chit. Pr. h.t. 1 Salk. 207 1 Supp. to Ves. jr. 109; Amer.
Dig. h.t.; Dane's Ab. h.t.; Harr. Dig. h.t. As to the liability of
executors and administrators for costs, see 1, Chit. R. 628, note; 18 E. C.
L. R. 185; 2 Bay's R. 166, 399; 1 Wash. R. 138; 2 Hen. & Munf. 361, 369; 4
John. R. 190; 8 John. R. 389; 2 John. Ca. 209. As to costs in actions qui
tam, see Esp. on Pen. Act. 154 to 165.

COTTAGE, estates. A small dwelling house. See 1 Tho. Co. Litt. 216; Sheph.
Touchst. 94; 2 Bouv. Inst. n. 1571, note.
2. The grant of a cottage, it is said, passes a small dwelling-house,
which has no land belonging to it. Shep. To. 94.

COUCHANT. Lying down. Animals are said to have been levant and couchant,
when they have been upon another person's land, damage feasant, one night at
least. 3 Bl. Com. 9.

COUNCIL, legislation. This word signifies an assembly.
2. It was used among the Romans to express the meeting of only a part
of the people, and that the most respectable, in opposition to the
assemblies of the whole people.
3. It is now usually applied to the legislative bodies of cities and
boroughs.
4. In some states, as in Massachusetts, a body of men called the
council, are elected, whose duties are to advise the governor in the
executive part of the government. Const. of Mass. part 2, c. 2, s. 3, art. 1
and 2. See 14 Mass. 470; 3 Pick. 517; 4 Pick. 25 19 John. R. 58. In England,
the king's council are the king's judges of his courts of justice. 3 Inst.
125; 1 Bl. Com. 229.

COUNSEL. Advice given to another as to what he ought to do or not to do.
2. To counsel another to do an unlawful act, is to become accessory to
it, if it be a felony, or principal, if it be treason, or a misdemeanor. By
the term counsel is also understood counsellor at law. Vide To open;
Opening.

COUNSEL, an officer of court. One who undertakes to conduct suits and
actions in court. The same as counsellor.

COUNSEL, practice, crim. law. In the oath of the grand jurors, there is a
provision requiring them to keep secret "the commonwealth's counsel, their
fellows, and their own." In this sense this word is synonymous with
knowledge; therefore, all the knowledge acquired by grand jurors, in
consequence of their office, either from the officers of the commonwealth,
from their fellow jurors, or which they have obtained in any manner, in
relation to cases which come officially before them, must be kept secret.
See Grand Jury.

COUNSELLOR, government. A counsellor is a member of a council. In some of
the states the executive power is vested in a governor, or a governor and
lieutenant governor, and council. The members of such council are called
counsellors. See the names of the several states.

COUNSELLOR AT LAW, offices. An officer in the supreme court of the United
States, and in some other courts, who is employed by a party in a cause, to
conduct the same on its trial on his behalf. He differs from an attorney at
law. (q.v.)
2. In the supreme court of the United States, the two degrees of
attorney and counsel are kept separate, and no person is permitted to
practise both. It is the duty of the counsel to draft or review and correct
the special pleadings, to manage the cause on trial, and, during the whole
course of the suit, to apply established principles of law to the exigencies
of the case. 1 Kent, Com. 307.
3. Generally in the other courts of the United States, as well as in
the courts of Pennsylvania, the same person perform's the duty of counsellor
and attorney at law.
4. In giving their advice to their clients, counsel and others,
professional men have duties to perform to their clients, to the public, and
to themselves. In such cases they have thrown upon them something which they
owe to the fair administration of justice, as well as to the private
interests of their employers. The interests propounded for them ought, in
their own apprehension, to be just, or at least fairly disputable; and when
such interests are propounded, they ought not to be pursued per fas et
nefas. Hag. R. 22.
5. A counsellor is not a hired person, but a mandatory; he does not
render his services for a price, but an honorarium, which may in some degree
recompense his care, is his reward. Doubtless, he is not indifferent to this
remuneration, but nobler motives influence his conduct. Follow him in his
study when he examines his cause, and in court on the trial; see him
identify himself with the idea of his client, and observe the excitement he
feels on his account; proud when he is, conqueror, discouraged, sorrowful,
if vanquished; see his whole soul devoted to the cause he has undertaken,
and which he believes to be just, then you perceive the elevated man,
ennobled by the spirit of his profession, full of sympathy for his cause and
his client. He may receive a reward for his services, but such things cannot
be paid for with money. No treasures can purchase the sympathy and
devotedness of a noble mind to benefit humanity; these things are given, not
sold. See Honorarium. 6. Ridley says, that the law has appointed no stipend
to philosophers and lawyers not because they are not reverend services and
worthy of reward or stipend, but because either of them are most honorable
professions, whose worthiness is not to be valued or dishonored by money.
Yet, in these cases many things are honestly taken, which are not honestly
asked, and the judge may, according to the quality of the cause, and the
still of the advocate, and the custom of the court, and, the worth of the
matter that is in hand, appoint them a fee answerable to their place. View
of the Civil and Eccles. Law, 38, 39.

COUNT, pleading. This word, derived from the French conte, a narrative, is
in our old law books used synonymously with declaration but practice has
introduced the following distinction: when the plaintiff's complaint
embraces only a single cause of action, and he makes only one statement of
it, that statement is called, indifferently, a declaration or count; though
the former is the more usual term.
2. But when the suit embraces two or more causes of action, (each of
which of course requires a different statement;) or when the plaintiff makes
two or more different statements of one and the same cause of action, each
several statement is called a count, and all of them, collectively,
constitute the declaration.
3. In all cases, however, in which there are two or more counts, whether
there is actually but one cause of action or several, each count purports,
upon the face of it, to disclose a distinct right of action, unconnected
with that stated in any of the other counts.
4. One object proposed, in inserting two or more counts in one
declaration, when there is in fact but one cause of action, is, in some
cases, to guard against the danger of an insufficient statement of the
cause, where a doubt exists as to the legal sufficiency of one or another of
two different modes of declaring; but the more usual end proposed in
inserting more than one count in such case, is to accommodate the statement
to the cause, as far as may be, to the possible state of the proof to be
exhibited on trial; or to guard, if possible, against the hazard of the
proofs varying materially from the statement of the cause of action; so that
if one or more or several counts be not adapted to the evidence, some other
of them may be so. Gould on Pl. c. 4, s. 2, 3, 4; Steph. Pl. 279; Doct. Pl.
1 78; 8 Com. Dig. 291; Dane's Ab. Index, h.t.; Bouv. Inst. Index, h.t. In
real actions, the declaration is most usually called a count. Steph. Pl. 36,
See Common count; Money count.

COUNTER, Eng. law. The name of an ancient prison in the city of London,
which has now been demolished.

COUNTER AFFIDAVIT. An affidavit made in opposition to one already made; this
is allowed in the preliminary examination of some cases.

COUNTER SECURITY. Security given to one who has become security for another,
the condition of which is, that if the one who first became surety shall be
damnified, the one who gives the counter security will indemnity him.

TO COUNTERFEIT, criminal law. To make something false, in the semblance of
that which is true; it always implies a fraudulent intent. Vide Vin. Ab. h.t.
Forgery.

COUNTERMAND. This word signifies a. change or recall of orders previously
given.
2. It may be express or implied. Express, when contrary orders are
given and a revocation. of the former order is made. Implied, when a new
order is given which is inconsistent with the former order: as, if a man
should order a merchant to ship him in a particular vessel certain goods
which belonged to him, and then, before the goods were shipped, he directed
him to ship them in another vessel; this would be a countermand of the first
order.
3. While the first command is unrecalled, the person who gave it would
be liable to all the consequences in case he should be obeyed; but if, for
example, a man should command another to commit a crime and, before its
perpetration, he should repent and countermand it, he would not be liable
for the consequences if the crime should afterwards be committed.
4. When a command or order has been given, and property delivered, by
which a right vests in a third person, the party giving the order cannot
countermand it; for example, if a debtor should deliver to A a sum of money
to be paid to B, his creditor, B has a vested right in the money, and unless
he abandon that right, and refuse to take the money, the debtor cannot
recover it from A. 1 Roll. Ab. 32, pl. 13; Yelv. 164 Sty. 296. See 3 Co. 26
b.; 2 Vent. 298 10 Mod. 432; Vin. Ab. Countermand, A 1; Vin. Ab. Bailment,
D; 9 East, 49; Roll. Ab. 606; Bac. Ab. Bailment, D; Com. Dig. Attorney, B 9,
c. 8; Dane's Ab. h.t.; and Command.

COUNTERPART, contracts. Formerly each party to an indenture executed a
separate deed; that part which was executed by the grantor was called the
original, and the rest the counterparts. It is now usual for all the parties
to execute every part, and this makes them all originals. 2 Bl. Com. 296.
2. In granting lots subject to a ground rent reserved to the grantor,
both parties execute the deeds, of which there are two copies; although both
are original, one of them is sometimes called the counterpart. Vide 12 Vin.
Ab. 104; Dane's Ab. Index, h.t.; 7 Com. Dig. 443; Merl. Repert. mots Double
Ecrit.

COUNTERPLEA, pleading. When a tenant in any real action, tenant by the
curtesy, or tenant in dower, in his answer and plea, vouches any one to
warrant his title, or prays in aid another who has a larger estate, as of
the remainder-man or reversioner or when a stranger to the action comes and
prays to be received to save his estate; then that which the defendant
alleges against it, why it should not be admitted, is called a counterplea.
T. de la Ley; Doct. Placit. 300 Com. Dig. h.t.; Dane's Ab. Index, h.t.

COUNTERS, English law. Formerly there were in London two prisons belonging
to the sheriffs courts, which bore this name. They are now demolished. 4
Inst. 248.

COUNTERSIGN. To countersign is to sign on the opposite side of an instrument
already signed by some other person or officer, in order to secure its
character of a genuine paper; as a bank note is signed by the president and
countersigned by the cashier.

COUNTRY. By country is meant the state of which one is a member.
2. Every man's country is in general the state in which he happens to
have been born, though there are some exceptions. See Domicil; Inhabitant.
But a man has the natural right to expatriate himself, i. e. to abandon his
country, or his right of citizenship acquired by means of naturalization in
any country in which he may have taken up his residence. See Allegiance;
Citizen; Expatriation. in another sense, country is the same as pais. (q.v.)

COUNTY. A district into which a state is divided.
2. The United States are generally divided into counties; counties are
divided into townships or towns.
3. In Pennsylvania the division of the province into three Counties,
viz. Philadelphia, Bucks and Chester, was one of the earliest acts of
William Penn, the original proprietary. There is no printed record of this
division, or of the original boundaries of these counties. Proud says it was
made about the year 1682. Proud's Hist. vol. 1 p. 234 vol. 2, p. 258.
4. In some states, as Illinois; 1 Breese, R. 115; a county is
considered as a corporation, in others it is only a quasi corporation. 16
Mass. R. 87; 2 Mass. R. 644 7 Mass. R. 461; 1 Greenl. R. 125; 3 Greenl. R.
131; 9 Greenl. R. 88; 8 John. R. 385; 3 Munf. R. 102. Frequent difficulties
arise on the division of a county. On this subject, see 16 Mass. R. 86 6 J.
J. Marsh. 147; 4 Halst. R. 357; 5 Watts, R. 87 1 Cowen, R. 550; 6 Cowen, R.
642; Cowen, R. 640; 4 Yeates, R. 399 10 Mass. Rep. 290; 11 Mass. Rep. 339.
5. In the English law this word signifies the same as shire, county
being derived from the French and shire from the Saxon. Both these words
signify a circuit or portion of the realm, into which the whole land is
divided, for the better government thereof, and the more easy administration
of justice. There is no part of England that is not within some county, and
the shire-reve, (sheriff) originally a yearly officer, was the governor of
the county. Four of the counties of England, viz. Lancaster, Chester, Durham
and Ely, were called counties Palatine, which were jurisdictions of a
peculiar nature, and held by, especial charter from the king. See stat. 27
H. VIII. c. 25.

COUNTY COMMISSIONERS. Certain officers generally entrusted with the
superintendence of the collection of the county taxes, and the disbursements
made. for the county. They are administrative officers, invested by the
local laws with various powers.
2. In Pennsylvania the office of county commissioner originated in the
act of 1717, which was modified by the act of 1721, and afterwards enlarged
by the act of 1724. Before the office of county commissioner was
established, assessors were elected who performed similar duties. See Act of
1700, 4 Votes of Assembly, 205, 209.

COUPONS. Those parts of a commercial instrument which are. to be cut, and
which are evidence of something connected with the contract mentioned in the
instrument. They are generally attached to certificates of loan, where the
interest is payable at particular periods, and, when the interest is paid,
they are cut off and delivered to the payor.

COURIER. One who is sent on some public occasion as an express, to bear
despatches, letters, and other papers.
2. Couriers sent by an ambassador or other public minister, are
protected from arrest or molestation. Vattel, liv. 4, c. 9, Sec. 123.

COURSE. The direction in which a line runs in surveying.
2. When there are no monuments, (q.v.) the land must be bounded by the
courses and distances mentioned in the patent or deed. 4 Wheat. 444; 3 Pet.
96; 3 Murph. 82; 2 Har. & John. 267; 5 Har. & John. 254. When the lines are
actually marked, they must be adhered to, though they vary from the course
mentioned in the deeds. 2 Overt. 304; 7 Wheat. 7. 1 See 3 Call, 239 7 Mont.
333. Vide Boundary; Line.

COURSE OF TRADE. What is usually done in the management of trade or
business.
2. Men are presumed to act for their own interest, and to pursue the
way usually adopted by men generally; hence it is presumed in law, that men
in their actions will pursue the usual course of trade. For this reason it
is presumed that a bank note was signed before it was issued, though the
signature be torn off. 2 Rob. Lo. R. 112. That one having possession of a
bill of exchange upon him, has paid it; that one who pays an order or draft
upon him, pays out of the funds of the drawer in his hands. But the case is
different where the order is for the delivery of goods, they being presumed
to have been sold by the drawee to the drawer. 9 Wend. 323; 1 Greenl. Ev.
Sec. 38.

COURSE OF THE VOYAGE. By this term is understood the regular and customary
track, if such there be, which a ship takes in going from one port to
another, and the shortest way. Marsh. on Ins. 185.

COURT, practice. A court is an incorporeal political being, which requires
for its existence, the presence of the judges, or a competent number of
them, and a clerk or prothonotary, at the time during which, and at the
place where it is by law authorized to be held; and the performance of some
public act, indicative of a design to perform the functions of a court.
2. In another sense, the judges, clerk, or prothonotary, counsellors
and ministerial officers, are said to constitute the court.
3. According to Lord, Coke, a court is a place where justice is
judicially administered. Co. Litt. 58, a.
4. The judges, when duly convened, are also called the court. Vide 6
Vin. Ab. 484; Wheat. Dig. 127; Merl. Rep. h.t.; 3 Com. Dig. 300; 8 Id.
386; Dane's Ab. Index, h.t.; Bouv. Inst. Index, h.t.
5. It sometimes happens that the judges composing a court are equally
divided on questions discussed before them. It has been decided, that when
such is the case on an appeal or writ of error, the judgment or decree is
affirmed. 10 Wheat. 66; 11 Id. 59. If it occurs on a motion in arrest of
judgment, a judgment is to be entered on the verdict. 2 Dall. Rep. 388. If
on a motion for a new trial, the motion is rejected. 6 Wheat. 542. If on a
motion to enter judgment on a verdict, the judgment is entered. 6 Binn. 100.
In England, if the house of lords be equally divided on a writ of error, the
judgment of the court below is affirmed. 1 Arch. Pr. 235. So in Cam. Scacc.
1 Arch. Pr. 240. But in error coram nobis, no judgment can be given if the
judges are equally divided, except by consent. 1 Arch. Pr. 246. When the
judges are equally divided on the admission of testimony, it cannot be
received. But see 3 Yeates, 171. Also, 2 Bin. 173; 3 Bin. 113 4 Bin. 157; 1
Johns. Rep. 118 4 Wash. C. C. Rep. 332, 3. See Division of Opinion.
6. Courts are of various kinds. When considered as to their powers,
they are of record and not of record; Bac. Ab. Courts, D; when compared. to
each other, they are supreme, superior, and inferior, Id.; when examined as
to their original jurisdiction, they are civil or criminal; when viewed as
to their territorial jurisdiction, they are central or local; when divided
as to their object, they are courts of law, courts of equity, courts
martial, admiralty courts, and ecclesiastical courts. They are also courts
of original jurisdiction, courts of error, and courts of appeal. Vide Open
Court.
7. Courts of record cannot be deprived of their jurisdiction except by
express negative words. 9 Serg. & R. 298; 3 Yeates, 479 2 Burr. 1042 1 Wm.
Bl. Rep. 285. And such a court is the court of common pleas in Pennsylvania.
6 Serg. & R. 246.
8. Courts of equity are not, in general, courts of record. Their
decrees touch the person, not lands. or goods. 3 Caines, 36. Yet, as to
personalty, their decrees are equal to a judgment; 2. Madd. Chan. 355; 2
Salk., 507; 1 Ver. 214; 3 Caines, 35; and have preference according to
priority. 3 P. Wms. 401 n.; Cas. Temp. Talb. 217; 4 Bro. P. C. 287; 4 Johns.
Chan. Cas. 638. They are also conclusive between the parties. 6 Wheat. 109.
Assumpsit will lie on a decree of a foreign court of chancery for a sum
certain; 1 Campb. Rep. 253, per Lord Kenyon; but not for a sum not
ascertained. 3 Caines, 37, (n.) In Pennsylvania, an action at law will lie
on a decree of a court of chancery, but the pleas nil debet and nul tiel
record cannot be pleaded in such an action. 9 Serg. & R. 258.

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

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

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

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

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

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

COURT OF CONVOCATION, eccles. law. The name of an English ecclesiastical
court. It is composed of every bishop, dean, and archdeacon, a proctor for
the chapter, and two proctors for the clergy of each diocese in the province
of Canterbury, for the province of York, there are two proctors for each
archdeaconry.
2. This assembly meets at the time appointed in the king's writ, and
constitute an ecclesiastical parliament. The archbishop and his suffragans,
as his peers, are sitting together, and composing one house, called the
upper house of convocation the deans, archdeacons, and a proctor for the
chapter, and two proctors for the clergy, the lower house. In this house a
prolocutor, performing the duty of a president, is elected.
3. The jurisdiction of this tribunal extends to matters of heresy,
schisms, and other mere spiritual or ecclesiastical causes. Bac. Ab.
Ecclesiastical Courts, A 1.

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

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

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

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

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

COURT MARTIAL. A court authorized by the articles of war, for the trial of
all offenders in the army or navy, for military offences. Article 64,
directs that general courts martial may consist of any number of
commissioned officers, from five to thirteen, inclusively; but they shall
not consist of less than thirteen, where the number can be convened, without
manifest injury to the service.
2. The decision of the commanding officer who appoints the court, as to
the number that can be convened without injury to the service, is
conclusive. 12 Wheat. R. 19. Such a court has not jurisdiction over a
citizen of the United States not employed in military service 12 John. R.
257. It has merely a limited jurisdiction, and to render its jurisdiction
valid, it must appear to have acted within such jurisdiction. 3 S. & R. 590
11 Pick. R. 442; 19 John. R. 7; 1 Rawle, R. 143.
3. A court martial must have jurisdiction over the subject matter of
inquiry, and over the person for a want of these will render its judgment
null, and the members of the court and the officers who execute its
sentence, trespassers. 3 Cranch, 331. See 5 Wheat. 1; 12 Wheat. 19; 1 Brock.
324. Vide Gord. Dig. Laws U. S., art. 3331 to 3357; 2 Story,. L. U. S. 1000;
and also the Treatises of Adye, Delafon, Hough, J. Kennedy, M. V. Kennedy,
McArthur, McNaghten, Simmons and Tyler on Courts Martial; and 19 John. R, 7;
12 John. R. 257; 20 John. R. 343; 5 Wheat. R. 1; 1 U. S. Dig. tit. Courts,
V.

COURT OF PECULIARS, Eng. eccl. law. The name of a court, which is a branch
of, and annexed to, the. court of arches.
2. It has jurisdiction over all those parishes dispersed through the
province of Canterbury, in the midst of other dioceses. In the other
peculiars, the jurisdiction is exercised by commissaries. 1 Phill. R. 202,
n.
3. There are three sorts of peculiars 1. Royal peculiars. 3 Phill. R.
245. 2. The second sort are those in which the bishop has no concurrent
jurisdiction, and are exempt from his visitation. 3. The third are subject
to the bishop's visitation, and liable to his superintendence and
jurisdiction. 3 Phill. R. 245; Skinn. R. 589.

COURT PREROGATIVE. Vide Prerogative Court.

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

COURT OF RECORD. At common law, any jurisdiction which has the power to fine
and imprison, is a court of record. Salk. 200; Bac. Ab. Fines and
Amercements, A. And courts which do not possess this power are not courts of
record. See Court.
2. The act of congress, to establish an uniform rule of naturalization,
&c., approved April 14, 1802, enacts, that for the purpose of admitting
aliens to become citizens, that every court of record in any individual
state, having common law jurisdiction and a seal, and a clerk or
prothonotary, shall be considered as a district court within. the meaning of
this act.

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

COURTS OF THE UNITED STATES. The judiciary of the United States is
established by virtue of the following provisions, contained in the third
article of the constitution, namely:
2.-1. The judicial power of the United States shall be vested in one
supreme court, and in such inferior courts as congress may, from time to
time, ordain and establish. The judges, both of the supreme and inferior
courts, shall hold their offices during good behaviour, and shall, at stated
times, receive for their services a compensation, which shall not be
diminished during their continuance in office.
3.- 2. (1.) The judicial power shall extend to all cases in law and
equity arising under this constitution, the laws of the United States, and
treaties made, or which shall be made, under their authority; to all cases
affecting ambassadors, other public ministers and consuls; to all cases of
admiralty and maritime jurisdiction; to controversies to which the United
States shall be a party to controversies between two or more states, between
a state and a citizen of another state, between citizens of different
states, between citizens of the same state claiming lands under grants of
different states, and between a state, or the citizens thereof, and foreign
states, citizens or subjects.
4.-(2.) In all cases affecting ambassadors, other public ministers
and consuls, and those in which a state shall be party, the supreme court
shall have original jurisdiction. In all the other cases before mentioned,
the supreme court shall have appellate jurisdiction, both as to law and
fact, with such exceptions, and under such regulations, as congress shall
make.
5.-(3.) The trial of all crimes, except in cases of impeachment,
shall be by jury; and such trial shall be held in the state where the said
crime shall have been committed; but when not committed within any state,
the trial shall be at such place or places as congress may by law have
directed.
6. By the amendments to the constitution, the following alteration has
been made: "Art. 11. The judicial power of the United States shall not be
construed to extend to any suit in law or equity, commence or prosecuted
against one of the United States by citizens of another state, or citizens
or subjects of any foreign state."
7. This subject will be considered by taking a view of, 1. The central
courts; an 2. The local courts.
Art. 1 The Central Courts of the United States.
8. The central courts of the United States are, the senate, for the
trial of impeachments, and the supreme court. The territorial jurisdiction
of these courts extends over the whole country.
1. Of the Senate of the United States.
9.-1. The constitution of the United States, art. 1, Sec. 3, provides
that the senate shall have the sole power to try all impeachments. When
sitting for that purpose, the senate shall be on oath or affirmation. When
the president of the United States is tried, the chief justice shall preside
and no person shall be convicted without the concurrence of two-thirds of
the members present.
10. lt will be proper here to consider, 1. The organization of this
extraordinary court; and, 2. Its jurisdiction.
11.-1. Its organization differs according as it has or, has not the
president of the United States to try. For the trial of all impeachment of
the president, the presence of the chief justice is required. There must
also be a sufficient number of senators present to form a quorum. For the
trial of all other impeachments, it is sufficient if a quorum be present.
12.-2. The jurisdiction of the senate, as a court for the trial of
impeachments, extends to the following officers, namely; the president,
vice-president, and all civil officers of the United States, art. 2, Sec. 4,
when they shall have been guilty of treason, bribery, and other high crimes
and misdemeanors. Id. The constitution defines treason, art.
3.-3, but recourse must be had to the common law for a definition of
bribery. Not having particularly mentioned what is to be understood by
"other high crimes and misdemeanors," resort, it is presumed, must be had to
parliamentary practice. and the common law, in order to ascertain what they
are. Story, Const. Sec. 795.
2. Of the Supreme Court.
13. The constitution of the United States directs that the judicial
power of the United States shall be vested in one supreme court; and in such
inferior courts as congress may, from time to time, ordain and establish. It
will be proper to consider, 1st. Its organization; 2dly. Its Jurisdiction.
14.-1. Of the organization of the supreme court. Under this head will
be considered, 1. The appointment of the judges. 2. The number necessary to
form a quorum. 3. The time and place of holding the court.
15.-1. The judges of the supreme court are appointed by the president,
by and with the consent of the senate, Const. art. 2, Sec. 2. They hold
their office during good behaviour, and receive for their services a
compensation, which shall not be diminished during their continuance in
office. Const. art" 3, Sec. 1. They consist of a chief justice and eight
associate justices. Act of March 3, 1837, Sec. 1.
16.-2. Five judges are required to make a quorum, Act of March 3,
1837, Sec. 1; but by the act of the 21st of January, 1829, the judges
attending on the day appointed for holding a session of the court, although
fewer than a quorum, at that time, four have authority to adjourn the court
from day to day, for twenty days, after the time appointed for the
commencement, of said session, unless a quorum shall sooner attend; and the
business shall not be continued over till the next session of the court,
until the expiration of the said twenty days. By the same act, if, after the
judges shall have assembled, on any day less than a quorum shall assemble,
the judge or judges. so assembling shall have authority to adjourn the said
court, from day to day, until a quorum shall attend, and, when expedient and
proper, may adjourn the same without day.
17-3. The supreme court is holden at the city of Washington. Act of
April 29, 1 802. The session commences on the second Monday of January, in
each and every year. Act of May, 4, 1826. The first Monday of August in each
year is appointed as a return day. Act of April 29, 1802. In case of a
contagious sickness, the chief justice or his senior associate may direct in
what other place the court shall be held, and the court shall accordingly be
ad to such place. Act of February 25, 1799, Sec. 7. The officers of the
court are a clerk, who is appointed by the court, a marshal, appointed by
the president, by and with the advice and the consent of the senate, crier,
and other inferior officers.
18.-2. Of the jurisdiction of the supreme. court. The jurisdiction of
the supreme court is either civil or criminal.
19.-1. The civil jurisdiction is either original or appellate.
20.-(1.) The provisions of the constitution that relate to the
original jurisdiction of the supreme court, are contained in the articles of
the constitution already cited.
21. By the act of September 24th, 1789, Sec. 13, the supreme court shall
have exclusive jurisdiction of all controversies of civil nature where a
state is a party, except "between a state and it's citizens; and except
also, between a state and citizens of other states or aliens, in which
latter case it shall have original, but not exclusive jurisdiction. And
shall have, exclusively, all such jurisdiction of suits, or proceedings
against ambassadors or other public ministers, or their domestics or
domestic servants, as a court of law can have or exercise consistently with
the law of nations. And original, but not exclusive jurisdiction of all
suits brought by ambassadors or other public ministers, or in which a consul
or vice-consul shall be a party. And the trial of issues in fact, in the
supreme court, in all actions at law, against citizens of the United States,
shall be by jury.
22. In consequence of the decision of the case of Chisholm v. Georgia,
where it was held that assumpsit might be maintained against a state by a
citizen of a different state, the 11th article of the amendments of the
constitution above quoted, was adopted.
23. In those cases in which original jurisdiction is given to the
supreme court, the judicial power of the United States cannot be exercised
in its appellate form. With the exception of those cases in which original
jurisdiction is given to this court, there is none to which the judicial
power extends, from which the original jurisdiction of the inferior courts
is excluded by the constitution.
24. The constitution establishes the supreme court and defines its
jurisdiction. It enumerates the cases in which its jurisdiction is original
and exclusive, and defines that which is appellate. See 11 Wheat. 467.
25. Congress cannot vest in the supreme court original jurisdiction in a
case in which the constitution has clearly not given that court original
jurisdiction; and affirmative words in the constitution, declaring in what
cases the supreme court shall have original jurisdiction, must be construed
negatively as to all other cases, or else the clause would be inoperative
and useless. 1 Cranch, 137. See 5 Pet. 15 Pet. 284; 12 Pet. 657; 9 Wheat.
738 6 Wheat. 264.
26.-2. The supreme court exercises appellate jurisdiction in the
following different modes:
(1.) By writ of error from the final judgments of the circuit courts; of
the district courts, exercising the powers of circuit courts; and of the
superior, courts of the territories, exercising the powers of circuit,
courts, in certain cases. A writ of error does not lie to the supreme court
to reverse the judgment of a circuit court, in a civil action by writ of
error carried from the district court to the circuit court. The United
States v. Goodwin, 7 Cranch, 108. But now, by the act of July 4, 1840, c.
20, Sec. 3, it is enacted that writs of error shall lie to the supreme court
from all judgments of a circuit court, in cases brought there by writs of
error from the district court, in like manner and under the same
regulations, as are provided by law for writs of error for judgments
rendered upon suits originally brought in the circuit court.
27.-(2.) The supreme court has jurisdiction by appeals from the final
decrees of the circuit courts; of the district courts exercising the powers
of circuit courts; and of the superior courts of territories, exercising the
powers of circuit courts in certain cases. See 8 Cranch, 251 6 Wheat. 448.
28.-(3.) The supreme court has also jurisdiction by writ of error from
the, final judgments and decrees of the highest courts of law or equity in a
state, in the cases provided for by the twenty-fifth section of the act of
September 24th, 1789, which enacts that a final judgment or decree, in any
suit in the highest court of law, or equity of a, state, in which a decision
in the suit could be had, where is drawn in question the validity of a
treaty, or statute of, or an authority exercised under, the United States,
and the decision is against their validity; or where is drawn in question
the validity of a statute of, or an authority exercised under any state, on
the ground of their being repugnant to the constitution, treaties, or laws
of the United States, and the decision is in favor of such their validity;
or where is drawn in question the construction of any clause of the
constitution, or of a treaty or statute of, or commission held under the
United States, and the decision is against the title, right, privilege, or
exemption specially set up or claimed by either party, under such clause of
the said constitution, treaty, statute, or commission, may be re-examined,
and reversed or affirmed in the supreme court of the United States, upon a
writ of error, the citation being signed by the chief justice or judge, or
chancellor of the court rendering or passing the judgment or decree
complained of, or by a justice of the supreme court of the United States, in
the same manner, and under the same regulations, and the writ shall have the
same effect as if the judgment or decree complained of had been rendered or
passed in a circuit court; and the proceeding upon the reversal shall also
be the same, except that the supreme court, instead of remanding the cause
for a final decision as before provided, may, at their discretion, if the
cause shall have been once remanded before, proceed to a final decision of
the same, and award execution. But no other error shall be assigned or
regarded as a ground of reversal, in any such case as aforesaid, than such
as appears on the face of the record, and immediately respects the before
mentioned questions of validity, or construction of the said constitution,
treaties, statutes, commissions, or authorities in dispute. See 5 How. S. C.
R. 20, 55
29. The appellate jurisdiction of the supreme court extends to all cases
pending in the state courts and the twenty-fifth section of the judiciary
act, which authorizes the exercise of this jurisdiction in the specified
cases by writ of error, is supported by the letter and spirit of the
constitution. 1 Wheat. 304.
30. When the construction or validity of a treaty of the United States
is drawn in question in the state courts, and the decision is against its
validity, or the title specially set up by either party under the treaty,
the supreme court has jurisdiction to ascertain that title, and to determine
its legal meaning. 1 Wheat. 358; 5 Cranch, 344; 9 Wheat. 738; 1 Pet. 94; 9
Pet. 224; 10 Pet. 368; 6 Pet. 515.
31. The supreme court has jurisdiction although one of the parties is a
state, and the other a citizen of that state. 6 Wheat. 264.
32. Under the twenty-fifth section of the judiciary act, when any clause
of the constitution or any statute of the United States is drawn in
question, the decision must be against the title or right set up by the
party under such clause or statute; otherwise the supreme court has no
appellate jurisdiction of the case. 12 Wheat. 117, 129 6 Wheat. 598 3
Cranch, 268 4 Wheat. 311; 7 Wheat. 164; 2 Peters, 449; 2 Pet. 241; 11 Pet.
167; 1 Pet. 655; 6 Pet. 41; 5 Pet. 248.
33. When the judgment of the highest court of law of a state, decides in
favor of the validity of a statute of a state drawn in question, on the
ground of its being repugnant to the constitution of the United States, it
is not a final judgment within the twenty-fifth section of the judiciary act
if the suit has been remanded to the inferior court, where it originated,
for further proceedings, not inconsistent with the judgment of the highest
court. 12 Wheat. 135.
34. The words "matters in dispute" in the act of congress, which is to
regulate the jurisdiction of the supreme court, seem appropriated to civil
causes. 3 Cranch, 159. As to the manner of ascertaining the matter in
dispute, see 4 Cranch, 216; 4 Dall. 22; 3 Pet. 33; 3 Dall. 365; 2 Pet. 243;
7 Pet. 634; 5 Cranch, 13; 4 Cranch, 316.
35.-(4.) The supreme court has jurisdiction by certificate from the
circuit court, that the opinions of the judges are opposed on points stated,
as provided for by the sixth section of the act of April 29th, 1802. The
provisions of the act extend to criminal as well as to civil cases. See 2
Cranch, 33; 10 Wheat. 20 2 Dall. 385; 4 Hall's Law Journ. 462; 5 Wheat. 434;
6 Wheat. 542; 12 Wheat. 212; 7 Cranch, 279.
36.-(5.) It has also jurisdiction by mandamus, prohibition, habeas
corpus, certiorari, and procedendo.
37.-2. The criminal jurisdiction of the supreme court is derived from
the constitution and the act of September 24th, 1789, s. 13, which gives the
supreme court exclusively, all such jurisdiction of suits or proceedings
against ambassadors, or other public ministers, or their domestics, as a
court of law can have or exercise consistently with the law of nations. But
it must be remembered that the act of April 30tb, 1790, sections 25 and 26,
declares void any writ or process whereby the person of any ambassador, or
other public minister, their domestics or domestic servants, may be arrested
or imprisoned. Art. 2. The local courts.
38. The local courts of the United States are, circuit courts, district
courts, and territorial courts., 1. The circuit courts.
39. In treating of circuit courts, it will be convenient to consider,
1st. Their organization; and, 2d. Their jurisdiction.
40.-1. Of the organization of the circuit courts. The circuit courts
are the principal inferior courts established by congress. There are nine
circuit courts, composed of the districts which follow, to wit:
41.-1. The first circuit consists of the districts of New Hampshire,
Massachusetts, Rhode Island, and Maine. It consists of a judge of the
supreme court and the district judge of the district where such court is
holden. See Acts April 29, 1802 March 26, 1812 and March 30, 1820.
42.-2 The second circuit is composed of the districts of Vermont,
Connecticut and New York. Act of March 3, 183 7.
43.-3. The third circuit consists of the districts of New Jersey, and
eastern and western Pennsylvania;. Act of March 3, 1837.
44.-4. The fourth circuit is composed of Maryland, Delaware, and
Virginia. Act of Aug. 16, 1842.
45.-5. The fifth circuit is composed of Alabama and Louisiana. Act of
August 16, 1842.
46.-6. The sixth circuit consist of the districts of North Carolina,
South Carolina, and Georgia. Act of Aug. 16, 1842.
47.-7. The seventh circuit is composed of Ohio, Indiana, Illinois, and
Michigan. Act of March 3, 1837, Sec. 1.
48.-8. The eighth circuit includes Kentucky, East and West Tennessee,
and Missouri. Act of March 3, 1837, Sec. 1. By the Act of April 14, 1842,
ch. 20, Sec. 1, it is enacted that the district court of the United States
at Jackson, in the district of West Tennessee, shall in future be attached
to, and form a part of the eighth judicial district of the United States,
with all the power and jurisdiction of the circuit court held at Nashville,
in the middle district of Tennessee.
49.-9. The ninth circuit is composed of the districts of Alabama, the
eastern district of Louisiana, the district of Mississippi, and the district
of Arkansas. Act of March 3, 1837, Sec. 1.
50. In several districts of the United States, owing to their remoteness
from any justice of the supreme court, there are no circuit courts held. But
in these, the district court there is authorized to act as a circuit court,
except so far as relates to writs of error or appeals from judgments or
decrees in such district court.
51. The Act of March 3, 1837, provides, "That so much of any act or
acts of congress as vests in the district courts of the United States for
the districts of Indiana, Illinois, Missouri, Arkansas, the eastern district
of Louisiana, the district of Mississippi, the northern district of New
York, the western district of Virginia, and the western district of
Pennsylvania, and the district of Alabama, or either of them, the power and
jurisdiction of circuit courts, be, and the same is hereby, repealed; and
there shall hereafter be circuit courts held for said districts by the chief
or associate justices of the supreme court, assigned or allotted to the
circuit to which such districts may respectively belong, and the district
judges of such districts, severally and respectively, either of whom shall
constitute a quorum; which circuit courts, and the judges thereof, shall
have like powers, and exercise like jurisdiction as other circuit courts and
the judges thereof; and the said district courts, and the judges thereof,
shall have like powers, and exercise like jurisdiction, as the district
courts, and the judges thereof in the other circuits. From all judgments and
decrees, rendered in the district courts of the United States for the
western district of Louisiana, writs of error and appeals shall lie to the
circuit court in the other district in said state, in the same manner as
from decrees and judgments rendered in. the districts within which a circuit
court is provided by this act."
52. In all cases where the day of meeting of the circuit court is fixed
for a particular day of the mouth, if that day happen on Sunday, then, by
the Act of 29th April, 1802, and other acts, the court shall be held the
next day.
53. The Act of April 29, 1802, Sec. 5, further provides, that on every
appointment which shall be hereafter made, of a chief justice, or associate
justice, the chief justice and associate justices shall allot among
themselves the aforesaid circuits, as they shall think fit, and shall enter
such allotment on record.
54. The Act of March 3, 1837, Sec. 4, directs that the allotment of the
chief justice and the associate justices of the said supreme court to the
several circuits shall be made as heretofore.
55. And by the Act of August 16, 1842, the justices of the supreme court
of the United States, or a majority of the are required to allot the several
districts among the justices of the said court.
56. And in case no such allotment shall be made by them, at their
sessions next succeeding such appointment, and also, after the appointment
of any judge as aforesaid, and before any other allotment shall have been
made, it shall and may be lawful for the president of the United States, to
make such allotment as he shall deem proper which allotment, in either case,
shall be binding until another allotment shall be made. And the circuit
courts constituted by this act shall have all the power, authority and
jurisdiction, within the several districts of their respective circuits,
that before the 13th February, 1801, belonged to the circuit courts of the
United States.
57. The justices of the supreme court of the United States, and the
district judge of the district where the circuit is holden, compose the
judges of the circuit court. The district judge may alone hold a circuit
court, though no judge of the supreme court may be allotted to that circuit.
Pollard v. Dwight, 4 Cranch, 421.
58. The Act of September 24th, 1789, Sec. 6, provides, that a circuit
court may be adjourned from day to day, by one of its judges, or if none are
present, by the marshal of the district, until a quorum be convened. By the
Act of May 19, 1794, a circuit court in any district, when it shall happen
that no judge of the supreme court attends within four days after the time
appointed by law, for the commencement of the sessions, may be adjourned to
the next stated term, by the judge of the district, or, in case of his
absence also, by the marshal of the district. But by the 4th section of the
Act of April 29, 1802, where only one of the judges thereby directed to hold
the circuit courts shall attend, such circuit court may be held by the judge
so attending.
59. By the Act of March 2, 1809, certain duties are imposed oil the
justices of the supreme court, in case of the disability of a district judge
within their respective circuits to hold a district court. Sect. 2, enacts,
that in case of the disability of the district judge of either of the
district courts of the United States, to hold a district court, and to
perform the duties of his office, and satisfactory evidence thereof being
shown to the justice of the supreme court allotted to that circuit, in which
such district court ought, by law to be holden, and on application of the
district attorney, or marshal of such district, in writing, the said justice
of the supreme court shall, thereupon, issue his order in the nature of a
certiorari) directed to the clerk of such district court, requiring him
forthwith to certify unto the next circuit court, to be holden, in said
district, all actions, suits, pauses, pleas, or processes, civil or
criminal, of what nature or land soever, that may be depending in such
district court, and undetermined, with all the proceedings thereon, and all
files, and papers relating, thereto, which said order shall be immediately
published in one or more newspapers, printed in said district, and at least
thirty days before the session of such circuit court, and shall be deemed a
sufficient notification to all concerned. And the said circuit court shall,
thereupon, have the same cognizance of all such actions, suits, causes,
pleas, or processes, civil or criminal, of what nature or kind soever, and
in the like manner, as the district court of said district by law might
have, or the circuit court, had the same been originally commenced therein,
and shall proceed to hear and determine the same accordingly; and the said
justice of the supreme court, during the continuance of such disability,
shall, moreover, be invested with, and exercise all and singular the, powers
and authority, vested by law in the judge of the district court in said
district. And all bonds and recognizances taken for, or returnable to, such
district court, shall be construed and taken to be the circuit court to be
holden thereafter, in pursuance of this act, and shall have the same force
and effect in such court as they would have had in the district court to
which they were taken. Provided, that nothing in this act contained shall be
so construed, as to require of the judge of the supreme court, within whose
circuit such district may lie, to hold any special court, or court of
admiralty, at any other time than the legal time for holding the circuit
court of the United States in and for such district.
60. Sect. 2, provides, that the clerk of such district shall, during the
continuance of the disability of the district judge, continue to certify, as
aforesaid, all suits or actions, of what nature or kind soever, which may
thereafter be brought to such district court, and the same transmit to the
circuit court next thereafter to be holden in the same district. And the
said circuit court shall have cognizance of the same, in like manner as is
hereinbefore provided in this act, and shall proceed to bear and determine
the same. Provided, nevertheless, that when the disability of the district
judge shall cease, or be removed, all suits or actions then pending and
undetermined in the circuit court, in which, by law, the district courts
have an exclusive original cognizance, shall be remanded, and the clerk of
the said circuit court shall transmit the same, pursuant to the order of the
said court, with all matters and things relating thereto, to the district
Court next thereafter to be holden in said district, and the same
proceedings shall be had therein, as would have been, had the same
originated, or been continued, in the said district court.
61. Sect. 3, enacts, that in case of the district judge in any district
being unable to discharge his duties as aforesaid, the district clerk of
such district shall be authorized and empowered, by leave or order of the
circuit judge of the circuit in which such district is included, to take,
during such disability of the district judge, all examinations, and
depositions of witnesses, and to make all necessary rules and orders,
preparatory to the final hearing of all causes of admiralty and maritime
jurisdiction. See 1 Gall. 337 1 Cranch, 309 note to Hayburn's case, 3 Dall.
410.
62. If the disability of the district judge terminate in his death, the
circuit court must remand the certified causes to the district court. Ex
parte United States, 1 Gall. 337.
63. By the first section of the Act of March 3, 1821, in all suits and
actions in any district court of the United States, in which it shall appear
that the judge of such court is any ways concerned in interest, or has been
of counsel for either party, or is so related to, or connected with, either
party, as to render it improper for him, in his opinion, to sit on the trial
of such suit or action, it shall be the duty of such judge, on application
of either party, to cause the fact to be entered on the records of the
court, and also an order that an authenticated copy the thereof, with all
the proceedings in such suit or action, shall be forthwith certified to the
next circuit court of the district, and if there be no circuit court in such
district, to the next circuit court in the state, and if there be no circuit
court in such state, to the most convenient circuit court in an adjacent
state; which circuit court shall, upon such record being filed with the
clerk thereof, take cognizance thereof, in like manner as if such suit or
action had been originally commenced in that court, and shall proceed to
bear and determine the same accordingly, and the jurisdiction of such
circuit court shall extend to all such cases to be removed, as were
cognizable in the district court from which the same was removed.
64. And the Act of February 28, 1839, Sec. 8, enacts, "That in all suits
and actions, in any circuit court of the United States, in which it shall
appear that both the judges thereof, or the judge thereof, who is solely
competent by law to try the same, shall be any ways concerned in interest
therein, or shall have been of counsel for either party, or is, or are so
related to, or connected with, either party as to render it improper for him
or them, in his or their opinion, to sit in the trial of such suit or
action, it shall be the duty of such judge, or judges, on application of
either party, to cause the fact to be entered on the records of the court;
and, also, to make an order that an authenticated copy thereof, with all the
proceedings in such suit or action, shall be certified to the most
convenient circuit court in the next adjacent state, or in the next adjacent
circuit; which circuit court shall, upon such record and order being filed
with the clerk thereof, take cognizance thereof in the same manner as if
such suit or action had been rightfully and originally commenced therein,
and shall proceed to hear and determine the same accordingly; and the proper
process for the due execution of the judgment or decree rendered therein,
shall run into, and may be executed in, the district where such judgment or
decree was rendered; and, also, into the district from which such suit or
action was removed."
65. The judges of the supreme court are not appointed as circuit court
judges, or, in other words, have no distinct commission for that purpose:
but practice and acquiescence under it, for many years, were held to afford
an irresistible argument against this objection to their authority to act,
when made in the year, 1803, and to have fixed the construction of the
judicial system. The court deemed the contemporary exposition to be of the
most forcible nature, and considered the question at rest, and not to be
disturbed then. Stuart v. Laird, 1 Cranch, 308. If a vacancy exist by the
death of the justice of the supreme court to whom the district was allotted,
the district judge may, under the act of congress, discharge the official
duties, (Pollard v. Dwight, 4 Cranch, 428. See the fifth section of the Act
of April 29, 1802,) except that he cannot sit upon a writ of error from a
decision in the district court. United States v. Lancaster, 5 Wheat. 434.
66. It is enacted, by the Act of February 28, 1839, Sec. 2, that all
the circuit courts of the United States shall have the appointment of their
own clerks; and in case of disagreement between the judges, the appointment
shall be made by the presiding judge of the court.
67. The marshal of the district is an officer of the court, and the
clerk of the district court is also clerk of the circuit court in such
district. Act of September 24, 1789, Sec. 7.
68. In the District of Columbia, there is a circuit court established by
particular acts of congress, composed of a chief justice and two associates.
See Act. of February 27, 1801; 12 Pet. 524; 7 Pet. 203; 7 Wheat. R. 534; 3
Cranch, 159; 8 Cranch, 251; 6 Cranch 233. Sec. 2. Of the Jurisdiction of the
Circuit Courts.
69. The jurisdiction of the circuit courts is either civil or criminal.
(1.) Civil Jurisdiction. The civil jurisdiction is either at law or in
equity. Their civil jurisdiction at law is, 1st. Original. 2d. By removal of
actions from the state courts. 3d. By writ of mandamus. 4tb. By appeal.
70.-1st. The original jurisdiction of the circuit courts at law, may
be considered, first, as to the matter in controversy second, with regard to
the parties litigant. (1.) The Matter in Dispute.
71. By the Act of September 24, 1789, Sec. 11, to give jurisdiction to
the circuit court, the matter in dispute must exceed $500. In actions to
recover damages for torts, the sum laid in the declaration is the criterion
as to the matter in dispute. 3 Dall. 358. In an action of covenant on an
instrument under seal, containing a penalty less than $500, the court has
jurisdiction if the declaration demand more than $500. 1 Wash. C. C. R. 1.
In ejectment, the value of the land should appear in the declaration; 4
Wash. C. C. R. 624; 8 Cranch, 220; 1 Pet. 73; but though the jury do not
find the value of the land in dispute, yet if evidence be given on the
trial, that the value exceeds $500, it is sufficient to fix the
jurisdiction; or the court may ascertain its value by affidavits. Pet. C. C.
R. 73.
72. If the matter in dispute arise out of a local injury, for which a
local action must be brought, in order to give the circuit court
jurisdiction, it must be brought in the district where the lands lie. 4
Hall's Law Journal, 78.
73. By various acts of congress, jurisdiction is given to the circuit
courts in cases where actions are brought to recover damages for the
violation of patent and Copyrights, without fixing any amount as the limit.
See Acts of April 17, 1800, Sec. 4; Feb. 15, 1819; 7 Johns. 144; 9 Johns.
507.
74. The circuit courts have jurisdiction in cases arising under the
patent laws. By the Act of July 4, 1836, Sec. 17, it is enacted, "That all
actions, suits, controversies, and cases arising under any law of the United
States, granting or confirming to inventors the exclusive right to their
inventions or discoveries, shall be originally cognizable, as well in equity
as at law, by the circuit courts of the United States, or any district court
having the powers and jurisdiction of a circuit court; which courts shall
have power, upon bill in equity filed by any party aggrieved, in any such
case, to grant injunctions, according to the course and principles of courts
of equity, to prevent the violation of the rights of any inventor, as
secured to him by any law of the United States, on such terms and conditions
as said courts may deem reasonable. Provided, however, That from all
judgments and decrees, from any such court rendered in. the premises, a writ
of error or appeal, as the case may require, shall lie to the supreme court
of the United States, in the same manner and under the same circumstances as
is now provided by law in other judgments and decrees of circuit courts, and
in all other cases in which the court shall deem it reasonable to allow the
game."
75. In general, the circuit court has no original jurisdiction of suits
for penalties and forfeitures arising under the laws of the United States,
nor in admiralty cases. 2 Dall. 365 4 Dall. 342; Bee, 19. (2.) The character
of the parties.
76. Under this head will be considered 1. The United States. 2. Citizens
of different states. 3. Suits where an alien is a party. 4. When an assignee
is plaintiff. 5. Defendant must be an inhabitant of the circuit. (i.) The
United States.
77. The United States may sue on all contracts in the circuit courts
where the sum in controversy exceeds, besides costs, the sum of $500 but, in
cases of penalties, the action must be commenced in the district court,
unless the law gives express jurisdiction to the circuit courts. 4 Dall.
342. Under the Act of March 3, 1815, Sec. 4, the circuit court has
jurisdiction concurrently with the district court of all suits at common law
where any officer of the United States sues under the authority of an act of
congress; as where the postmaster general sues under an act of congress for
debts or balances due to the general post-office. 12 Wheat. 136. See 2 Pet.
447; 1 Pet. 318.
78. The circuit court has jurisdiction on a bill in equity filed b the
United States against the debtor of their debtor, they claiming priority
under the statute of March 2, 1798, c. 28, Sec. 65, though the law of the
state where the suit is brought permits a creditor to proceed against the
debtor of his debtor by a peculiar process at law. 4 Wheat. 108. (ii.) Suits
between citizens of different states.
79. The Act of September 24, 1789, Sec. 11, gives jurisdiction to the
circuit court in suits of civil nature when the matter in dispute is of a
certain amount, between a citizen of the state where the suit is brought,
and a citizen of another state; one of the parties must therefore be a
citizen of the state where the such is brought. See 4 Wash. C. C. R. 84;
Pet. C. C. R. 431; 1 Sumn. 581; 1 Mason, 520; 5 Cranch, 288; 3 Mason, 185; 8
Wheat.'699; 2 Mason, 472; 5 Cranch, 57; Id. 51; 6 Wheat. 450; 1 Pet. 238; 4
Wash. C. C. R. 482, Id. 595.
80. Under this section the division of a state into two or more
districts does not affect the jurisdiction of the circuit court, on account
of citizenship. The residence of a party in a different district of a state
from that in which the suit is brought, does not exempt him from the
jurisdiction of the court; if he is found in the district where he is sued
he is not within the prohibition of this section. 11 Pet. 25. A territory is
not a state for the purpose of giving jurisdiction, and, therefore, a
citizen of a territory cannot sue the citizen of a State in the circuit
court. 1 Wheat. 91. (iii.) Suits where on alien is a party.
81. The Act of September 24, 1780, Sec. 11, gives the circuit court
cognizance of all suits of a civil nature where an alien is a party; but
these general words; must be restricted by the provision in the constitution
which gives jurisdiction in controversies between a state, or the citizens
of a state, and foreign states, citizens or subjects; and the statute cannot
extend the jurisdiction beyond the limits of the constitution. 4 Dall. 11; 5
Cranch, 308. When both parties are aliens, the circuit court has no
jurisdiction. 4 Cranch, 46; 4 Dall. 11. An alien who holds lands under a
special law of the state in which he is resident, may maintain an action in
relation to those lands, in the circuit court. 1 Baldw. 216. (iv.) When an
assignee is the plaintiff.
82. The court has no jurisdiction unless a suit might have been
prosecuted in such court to recover on the contract assigned, if no
assignment had been made, except in cases of bills of exchange. Act of
September 24, 1789, Sec. 11; see 2 Pet. 319; 1 Mason, 243; 6 Wheat. 146; 11
Pet. 83; 9 Wheat. 537; 6 Cranch, 332; 4 Wash. C. C. R. 349; 4 Mason, 435; 12
Pet. 164; 2 Mason, 252. It is said that this section of the act of congress
has no application to the conveyance of lands from a citizen of one state to
a citizen of another. The grantee in such, case may maintain his action in
the circuit court, when otherwise properly qualified, to try the title to
such lands. 2 Sumn. 252. (V.) The defendant must be an inhabitant of, or
found in the circuit.
83. The circuit court has no jurisdiction of an action against a
defendant unless he be an inhabitant of the district in which such court is
located, or found therein, at the time of serving the writ. 3 Wash. C. C. R.
456. A citizen of one state may be sued in another, it the process be served
upon him in the latter; but in such cases) the plaintiff must be a citizen
of the latter state, or an alien. 1 Pet. C. C. R. 431. 2d. Removal of
actions from the state court's.
84. The, Act of September 24, 1789, gives, in certain cases, the right
of removing a suit instituted in a state court to the circuit court of the
district. It is enacted by that law, that if a suit be commenced in any
state court against an alien, or by a citizen of the state in which the suit
is brought, against a citizen of another state, and the matter in dispute
exceeds the aforesaid sum or value of five hundred dollars, exclusive of
costs, to be made to appear to the satisfaction of the court, and the
defendant shall, at the time of entering his appearance in such state court,
file a petition for the removal of the cause for trial, into the next
circuit court, to be held in the district where the suit is pending, and
offer good and sufficient security for his entering in such court, on the
first day of its session, copies of the said process against him, and also
for his then appearing and entering special bail in the cause, if special
bail was originally required therein, it shall then be the duty of the state
court to accept the surety, and proceed no further in the cause. And any
bail that may have been originally taken shall be discharged. And the said
copies being entered as aforesaid in such court of the United States, the
cause shall there proceed in the same manner as if it had been brought there
by original process. And any attachment of the goods or estate of the
defendant, by the original process, shall hold the goods or estate so
attached, to answer the final judgment, in the same manner as by the laws of
such state they would have been holden to answer final judgment, had it been
rendered by the circuit court in which the suit commenced. Vide Act of
September 24, 1789, Sec. 12; 4 Dall. 11; 5 Cranch, 303; 4 Johns. R. 493; 1
Pet. R. 220; 2 Yeates, R. 275; 4 W. C. C. R. 286, 344.
85. By the Constitution, art. 3, Sec. 2, 1, the judicial power shall
extend to controversies between citizens of the same state, claiming lands
under grants of different states.
86. By a clause of the 12th section of the Act of September 24th, 1789,
it is enacted, that, if in any action commenced in a state court, the title
of land be concerned, and the parties are citizens of the same state, and
the matter in dispute exceeds the sum or value of five hundred dollars,
exclusive of costs, the sum or value being made to appear to the
satisfaction of the court, either party, before the trial, shall state to
the court, and make affidavit, if it require it, that he claims, and shall
rely upon a right or title to the land, under grant from a state, other than
that in which the suit is pending, and produce the original grant, or an
exemplification of it, except where the loss of records shall put it out of
his power, and shall move that the adverse party inform the court, whether
he claims a right of title to the land under a grant from the state in which
the suit is pending; the said adverse party shall give such information,
otherwise not be allowed to plead such grant, or give it in evidence upon
the trial; and if he informs that he does claim under any such grant, the
party claiming under the grant first mentioned, may then, on motion, remove
the cause for trial, to the next circuit court to be holden in such
district. But if he is the defendant, he shall do it under the same
regulations, as in the before mentioned case of the removal of a cause into
such court by an alien. And neither party removing the cause shall be
allowed to plead, or give evidence of, any other title than that by him
stated as aforesaid, as the ground of his claim. See 9 Cranch, 292 2 Wheat.
R. 378.
87. Application for removal must be made during the term at which the
defendant enters his appearance. 1 J. J. Marsh. 232. If a state court agree
to consider a petition to remove the cause as filed of the preceding term,
yet if the circuit court see by the record, that it was not filed till a
subsequent term, they will not permit the cause to be docketed. Pet. C.. C.
R. 44 Paine, 410 but see 2 Penning. 625.
88. In chancery, when the defendant wishes to remove the suit, he must
file his petition when he enters his appearance; 4 Johns. Ch. 94; and in an
action in a court of law, at the time of putting in special bail. 12 Johns.
153. And if an alien file his petition when he filed special bail, he is in
time, though the bail be excepted to. 1 Caines, 248; Coleman, 58. A
defendant in ejectment may file his petition. when he is let in to defend. 4
Johns. 493. See Pet. C. C. R. 220; 2 Wash. C. C. R. 463; 2 Yeates, 275, 352;
3 Dall. 467; 4 Wash. C. C. R. 286; 2 Root 444; 5 John. Ch. R. 300 3 Harn.
48; 4 Wash. C. C. R. 84. 3d. Remedy by Mandamus.
89. The power of the circuit Court to issue a mandamus, is confined,
exclusively, to cases in which it may be necessary for the exercise of a
jurisdiction already existing; as, for instance, if the court below refuse
to proceed to judgment, then a mandamus in the nature of a procedendo may
issue. 7 Cranch, 504; 6 Wheat. R. 598. After the state court had refused to
permit the removal of a cause on petition, the circuit court issued a
mandamus to transfer the cause.
4th. Appellate Jurisdiction.
90. The appellate jurisdiction is exercised by means of, 1. Writs of
error. 2 Appeals from the district courts in admiralty and maritime
jurisdiction. 3. Certiorari. 4. Procedendo.
91.-[1.] This court has jurisdiction to issue writs of error to the
district court, on judgments of that court in civil cases at common law.
92. The 11th section of the Act of September 24, 1789, provides, that
the circuit courts shall also have appellate jurisdiction from the district
courts, under the regulations and restrictions thereinafter provided.
93. By the 22d section, final decrees and judgments in civil actions in
a district court, where the matter in dispute exceeds the, sum or value of
fifty dollars, exclusive of costs, may be reexamined, and reversed or
affirmed in a circuit court holden in the same district, upon a writ of
error, whereto shall be annexed and returned therewith at the day and place
therein mentioned, an authenticated transcript of the record and assignment
of errors, and prayer for reversal, with a citation to the adverse party,
signed by the judge of such district court, or a justice of the supreme
court, the adverse party having at least twenty days notice. But there shall
be no reversal on such writ of error, for error in ruling any plea in
abatement, other than a plea to the jurisdiction of the court, or for any
error in fact. And writs of error shall not be brought but within five years
after rendering or passing the judgment or decree complained of; or, in
case the person entitled to such writ of error be an infant, non compos
mentis, or imprisoned, then within five years, as aforesaid, exclusive of
the time of such disability. And every justice or judge signing a citation
or any writ of error as aforesaid, shall take good and sufficient security,
that the plaintiff in error shall prosecute his writ to effect, and answer
all damages and costs, if he fail to make his plea good.
94. The district judge cannot sit in the circuit court on a writ of
error to the district court. 5 Wheat. R. 434.
95. It is observed above, that writs of error may be issued to the
district court in civil cases at common law, but a writ of error does not
lie from a circuit to a district court in an admiralty or maritime cause. 1
Gall. R. 5..
96.-[2.] Appeals from the district to the circuit court take place
generally in civil causes of admiralty or maritime jurisdiction.
97. By the Act of March 3, 1803, Sec. 2, it is enacted, that from all
final judgments or decrees in any of the district courts of the United
States, an appeal where the matter in dispute, exclusive of costs, shall
exceed the sum or value of fifty dollars, shall be allowed to the district
court next to be holden in the district where such final judgment or
judgments, decree or decrees shall be rendered: and the circuit courts are
thereby authorized and required, to hear and determine such appeals.
98.-[3.] Although no act of congress authorizes the circuit court to,
issue a certiorari to the district court for the removal of a cause, yet if
the cause be so removed, and instead of taking advantage of the irregularity
in proper time and in a proper manner, the defendant makes the defence and
pleads to issue, he thereby waives the objection, and the suit will be
considered as an original one in the circuit court, made so by consent of
parties. 2 Wheat. R. 221.
99.-[4.] The circuit court may issue a writ of procedendo to the
district court.
Equity Jurisdiction of the Circuit Courts.
100. Circuit courts are vested with equity jurisdiction in certain cases.
The Act of September, 1789, Sec. 11, gives original cognizance, concurrent
with the courts of the several states, of all suits of a civil nature at
common law or in equity, where the matter in dispute exceeds, exclusive of
costs, the sum or value of five hundred dollars, and the United States are
plaintiffs or petitioners, or an alien is a party, or. the suit is between a
citizen of the state where the suit is brought and a citizen of another
state.
101. The Act of April 15, 1819, Sec. 1, provides, "That the circuit
court of the United States shall. have original cognizance, as well in
equity as at law, of all actions, suits, controversies, and cases arising
under may law of the United States, granting or confirming to authors or
inventors, the exclusive right to their respective writings, inventions, and
discoveries; and upon any bill in equity filed by any party aggrieved, in
such cases, shall have authority to grant injunctions according to the
course and principles of courts of equity, to prevent the violation of the
rights of any authors or inventors, secured to them by any laws of the
United States, on such terms and conditions as the said courts may deem fit
and reasonable:.provided, however, that from all judgments and decrees of
any circuit courts rendered in the premises, a writ of error or appeal as
the case may. require, shall lie to the supreme court of the United States,
in the same manner and under the same circumstances, as is now provided by
law, in other judgments and decrees of such circuit court."
102. By the Act of August 23, 1842, it is enacted, Sec. 5, "That the
district courts, as courts of admiralty, and the circuit courts, as courts
of equity, shall be deemed always open for the purpose of filing libels,
bills, petitions, answers, pleas, and other pleadings, for issuing and
returning mesne and final process and commissions, and for making and
directing all interlocutory motions, orders, rules, and other proceedings
whatever, preparatory to the hearing of all causes pending therein upon
their merits. And it shall be competent for any. judge of the court, upon
reasonable notice to the parties, in the clerk's office or at chambers, and
in vacation as well as in term, to make and direct, and award all such
process, commissions, and interlocutory orders, rules, and other
proceedings, whenever the same are not grantable of course according to the
rules and practice of the court."
(2.) Criminal Jurisdiction of the Circuit Courts.
103. The often cited 11th section of the Act of the 24th of September,
1789, gives the circuit courts exclusive cognizance of all crimes and
offences cognizable under the authority of the United States, except where
that act otherwise provides, or the laws of the United States shall
otherwise direct, and concurrent jurisdiction with the district courts of
the crimes and offences cognizable. therein. The jurisdiction of the circuit
courts in criminal cases is confined to offences committed within the
district for which those courts respectively sit when they are committed on
land. Serg. Const. Law, 129; 1 Gallis. 488.
2. Of the District Courts.
104. In treating of district courts, the same division which was made, in
considering circuit courts, will here be adopted, by taking a view, 1. Of
their organization and, 2. Of their jurisdiction. Sec. 1. Of the
Organization of the District Courts.
105. The United States are divided into districts, in each of which is a
court called a district court, which is to consist of one judge, who is to
reside in the district for which he is appointed, and to hold annually four
sessions. Act of September 24, 1789. By subsequent acts of congress, the
number of annual sessions in particular districts, is sometimes more and
sometimes less; and they are to be held at various places in the district.
There is also a district court in the District of Columbia, held by the
chief justice of the circuit court of that district. Sec. 2. Jurisdiction of
the District Courts.
106. Their jurisdiction is either civil or criminal.
107.-(1.) Their civil jurisdiction extends, 1. To admiralty and
maritime causes: the admiralty and maritime jurisdiction, is either the
ordinary jurisdiction, which comprehends prize suits; cases of salvage
actions for torts; and actions on contracts, such. as seamen's wages,
pilotage, bottomry, ransom, materials, and the like; or the extraordinary or
expressly vested jurisdiction, which includes cases of seizures under the
revenue laws, &c.; and captures within the jurisdiction of the United
States.
108.-2. To cases of seizure on land under the laws of the United States,
and in suits for penalties and forfeitures, incurred under the laws of the
United States.
109.-3. To cases in which an alien sues for a tort, in violation of the
laws of nations, or a treaty of the United States.
110.-4. To suits instituted by the United States.
111.-5. To actions by and against consuls.
112.-6. To certain cases in equity.
113.-1. The admiralty and maritime jurisdiction of the district court
is ordinary or extraordinary.
114.-1st. The ordinary jurisdiction is granted by the Act of September
24th, 1789, It is there enacted, that the district court shall have
exclusive original cognizance of all civil causes of admiralty and maritime
jurisdiction. This jurisdiction is exclusive. Bee, 19; 3 Dall. 16; Paine,
111; 4 Mason, 139.
115. This ordinary jurisdiction is exercised in,
116.-1. Prize suits. The Act of September 24, 1789, Sec. 9, vests in
the district courts as full jurisdiction of all prize causes as the
admiralty of England; and this jurisdiction is an ordinary inherent branch
of the powers of the court of admiralty, whether considered as prize courts
or instance courts, 3 Dall. 16; Paine, 111.
117. The act of congress marks out not only the general jurisdiction of
the district courts, but also that of the several courts in relation to each
other, in cases of seizure on the waters of the United States, navigable,
&c. When the seizure is made within the waters of one district, the court of
that district has exclusive, jurisdiction, though the offence may have been
committed out of the district. When the seizure is made on the high seas,
the jurisdiction is in the court of the district where the property may be
brought. 9 Wheat. 402; 6 Cranch; 281; 1 Mason, 360; Paine, 40.
118. When the seizure has been made within the waters of a foreign
nation, the district court has jurisdiction, when the property has been
brought into the district, and a prosecution has been instituted there. 9
Wheat. 402; 9 Cranch. 102.
119. The district court has jurisdiction of seizures, and of the question
of who is entitled to their proceeds, as informers or otherwise; and the
principal jurisdiction is exclusive; the question, as to who is the
informer, is also exclusive. 4 Mason, 139.
120.-(2.) Cases of salvage. Under the constitution and laws of the
United States, this court has exclusive original cognizance in cases of
salvage; and, as a consequence, it has the power to determine to whom the
residue of the property belongs, after deducting the salvage. 3 Dall. 183.
121.-(3.) Actions arising out of tort's and injuries. The district
court has jurisdiction over all torts and injuries committed on the high
seas, and in ports or harbors within the ebb and flow of the tide. Vide 1
Wheat. R. 304; 2 Gall. R. 389; 1 Mason, 96; 3 Mason., 242; 4 Mason, 380; 18
Johns. R. 257.
122. A court of admiralty has jurisdiction to redress personal wrongs
committed on a passenger, on the high seas, by the master of a vessel,
whether those wrongs be by direct force or consequential injuries. 3 Mason,
242.
123. The admiralty may decree damages for an unlawful capture of an
American vessel by a French privateer, and may proceed by attachment in ?
em. Bee, 60.
124. It has jurisdiction in cases of maritime torts, in personam as well
as in rem. 10 Wheat. 473,
125. This court has also jurisdiction of petitory suits to reinstate
owners of vessels who have been displaced from their possession. 5 Mason,
465. It exercises jurisdiction of all torts and injuries committed on the
high seas, and in ports or harbors within the flow or ebb of the tide. 2
Gallis. 398; Bee, 51.
126. A father, whose minor son has been tortiously abducted and seduced
on a voyage on the high seas, may sue, in the admiralty, in the nature of an
action per quod, &c., also for wages earned by such son in maritime service.
4 Mason, 380.
127.-(4.) Suits on contracts. As a court of admiralty, the district
court has a jurisdiction, concurrent with the courts of common law, over all
maritime contracts, wheresoever the same may be made or executed, or
whatsoever be the form of the contract. 2 Gallis. 398. It may enforce the
performance of charter parties for foreign voyages, and by proceeding in
rem, a lien for freight under them. 1 Sumn. 551; 2 Sumn. 589. It has
jurisdiction over contracts for the hire of seamen, when the service is
substantially performed on the sea, or on waters within the flow and reflow
of the tide 10 Wheat. 428; 7 Pet. 324; Bee, 199; Gilp. 529. But unless the
services are essentially maritime, the jurisdiction does not attach. 10
Wheat. 428; Gilp. 529.
128. The master of a vessel may sue in the admiralty, for his wages; and
the mate, who on his death succeeds him, has the same right. 1 Sumn. 157; 9
Mason, 161; 4 Mason, 196. But when the services for which he sues have not
been performed by him as master, they cannot be sued for in admiralty. 3
Mason, 161.
129. The jurisdiction of the admiralty attaches when the services are
performed on a ship in port where the tide ebbs and flows. 7 Pet. 324; Gilp.
529.
130. Seamen, employed on board of steamboats and lighters engaged in
trade or commerce on tide-water, are within the admiralty jurisdiction. But
those in ferryboats are not so. Gilp. 532 Gilp. 203.
131. Wages may be recovered in the admiralty by the pilot, deck-hands,
engineer, and firemen, on board of a steamboat. Gilp. 505.
132. But unless the service of those employed contribute in navigating
the vessel, or to its preservation, they cannot sue for their wages in the
admiralty; musicians on board of a vessel, who are hired and employed as
such, cannot therefore enforce a payment of their wages by a suit in rem in
the admiralty. Gilp. 516.
133.-2d. The extraordinary jurisdiction of the district court, as a
court of admiralty, or that which is vested by various acts of congress,
consists of:
(1.) Seizures under the laws of imposts, navigation, or trade of the
United States. It is enacted, by the Act of September 24, 1789, Sec. 9, that
the district court shall have exclusive original cognizance of all civil
causes of admiralty and maritime jurisdiction, including all seizures under
laws of impost, navigation, or trade of the United States, when the seizures
are made on waters which are navigable from the sea, by vessels of ten or
more tons burden, within their respective districts, as well as upon the
high seas; saving to suitors, in all cases, the right of a common law
remedy, when the common law is competent to give it.
134. Causes of this kind are to be tried by the district court, and not
by a jury. 4 Cranch, 438; 5 Cranch, 281; 1 Wheat. 9, 20: 7 Cranch, 112; 3
Dall. 297.
135. It is the place of seizure, and not the committing of the offence,
that, under the Act of September 24, 1789, gives jurisdiction to the court;
4 Cranch, 443 5 Cranch, 304; for until there has been a seizure, the forum
cannot be ascertained. 9 Cranch, 289.
136. When the seizure has been voluntarily abandoned, it loses its
validity, and no jurisdiction attaches to any court, unless there be a new
seizure. 10 Wheat. 325 1 Mason, 361.
137.-(2.) The. admiralty jurisdiction, expressly vested in the district
court, embraces, also, captures made within the jurisdictional limits of the
United States. By the Act of April. 20, 1818, Sec. 7, the district court
shall take cognizance of complaints, by whomsoever instituted, in cases of
captures made within the waters of the United States, or within a marine
league of the coasts and shores thereof.
138.-2. The civil jurisdiction of the district court extends to cases
of seizure on land, under the laws of the United States, and in suits for
penalties and forfeitures incurred under the laws of the United States.
139. The Act of September 24, 1789, Sec. 9, gives to the district court
exclusive original cognizance of all seizures made on land, and other waters
than as aforesaid, (that is, those which are navigable by vessels of ton or
more tons burden, within their respective districts, or on the high seas,)
and of all suits for penalties and forfeitures incurred under the laws of
the United States.
140. In all cases of seizure on land, the district court sits as a court
of common law, and its jurisdiction is entirely distinct from that exercised
in case of seizure on waters navigable by vessels of ten tons burden and
upwards. 8 Wheat. 395.
141. Seizures of this kind are triable by jury; they are not cases of
admiralty and maritime jurisdiction. 4 Cranch, 443.
142.-3. The civil jurisdiction of the district court extends also to
cases in which an alien sues for a tort, in violation of the law of nations,
or a treaty of tho United States.
143. The Act of September 24, 1789, Sec. 9, directs that the district
court shall have cognizance, concurrent with the courts of the several
states, or the circuit courts, as the case may be, of all causes where an
alien sues for a tort only, in violation of the law of nations, or of a
treaty of the United States.
144.-4. The civil jurisdiction of this court extends further to suits
instituted by the United States. By the 9th section of the Act of September
24, 1789, the district court shall also have cognizance, concurrent as last
mentioned, of all suits at common law, where the United States sue, and the
matter in dispute amounts, exclusive of costs, to the sum or value of one
hundred dollars. And by the Act of March 3; 1815, Sec. 4, it has cognizance,
concurrent with the courts and magistrates of the several states, and the
circuit courts of the United States, of all suits at common law where the
United States, or any officer thereof, under the authority of any act of
congress sue, although the debt, claim, or other matter in dispute, shall
not amount to one hundred dollars.
145. These last words do not confine the jurisdiction given by this act
to one hundred dollars, but prevent it from stopping at that sum: and
consequently, suits for sums over one hundred dollars are cognizable in the
district, circuit, and state courts, and before magistrates, in the cases
here mentioned. By virtue of this act, these tribunals have jurisdiction
over suits brought by the postmaster-general, for debts and balances due the
general post office. 12 Wheat. 147; 2 Pet. 447; 1 Pet. 318.
146.-5. This court has jurisdiction of actions by and against consuls or
vice-consuls, exclusively of the courts of the several states, except for
offences where other punishment than whipping, not exceeding thirty stripes,
a fine not exceeding one hundred dollars, or a term of imprisonment not
exceeding six months, is inflicted.
147. For offences above this description formerly the circuit court only
had jurisdiction in cases of consuls. 5 S. & R. 545; 2 Dall. 299. But by the
Act of August 23, 1842, the district courts shall have concurrent
jurisdiction with the circuit courts of all crimes and offences against the
United States, the punishment of which is not capital. And by the, Act of
February 28, 1839, Sec. 5, the punishment of whipping is abolished. See also
the Act of 28th Sept. 1850, making appropriations for the naval service, &c.
148.-6. The jurisdiction of the district court under the bankrupt laws
will be found under the title Bankrupt.
149.-7. The district courts have equitable jurisdiction in certain
cases.
150. By the first section of the Act of February 13, 1807, the judges of
the district courts of the United States shall have as full power to grant
writs of injunctions, to operate within their respective districts, as is
now exercised by any of the judges of the supreme court of the United
States. under the same rules, regulations, and restrictions, as are
prescribed by the several acts of congress establishing the judiciary of the
United States, any law to the contrary notwithstanding. Provided, that the
same shall not, unless so ordered by the circuit court, continue longer than
to the circuit then next ensuing; nor shall an injunction be issued by a
district judge in any case, where the party has had a reasonable time to
apply to the circuit court for the writ.
151. An injunction may be issued by the district judge under the Act of
March 3, 1820, SSSS 4, 5, where proceedings have taken place by warrant and
distress against a debtor to the United States or his sureties, subject by
Sec. 6, to appeal to the circuit court from the decision of such district
judge in refusing or dissolving the injunction, if such appeal be allowed by
a justice of the supreme court. On which, with an exception as to the
necessity of an answer on the part of the United States, the proceedings are
to be as in other cases.
152. The Act of September 24, 1789, Sec. 14, vests in the judges of the
district courts, power to grant writs of habeas corpus, for the purpose of
an inquiry into the cause of commitment.
153. Other acts give them power to issue writs, make rules, take
depositions, &c. The acts of congress already treated of relating to the
privilege of not being sued out of the district of which the defendant is an
inhabitant, or in which he is found, restricting suits by assignees, and
various others, apply to the district court as well as to the circuit court.
154. By the 9th section of the Act of September 24, 1789, the trial of
issues in fact in the district courts, in all causes except civil causes of
admiralty and maritime jurisdiction, shall be by jury. Serg. Const. Law,
226, 227.
(2.) The criminal jurisdiction of the district court.
155. By the Act of August 23, 1842, Sec. 3, it is enacted that the
district courts of the United States shall have concurrent jurisdiction with
the circuit courts, of all crimes and offences against the United States,
the punishment of which is not capital.
156. There is a class of district courts of a peculiar description. These
exercise the power of a circuit court, under the same regulations as they
were formerly exercised by the district court of Kentucky, which was the
first of the kind.
157. The Act of September 24, 1789, Sec. 10, gives the district court of
the Kentucky district, besides the usual jurisdiction of a district court,
the jurisdiction of all causes, except of appeals and writs of error,
thereinafter made cognizable in a circuit court, and writs of error and
appeals were to lie from decisions therein to the supreme court, and under
the, same regulations. By the 12th section, authority was given to remove
cases from a state court to such court, in the same manner as to a circuit
court.
3. The territorial courts.
158. The act to establish the territorial government of Oregon, approved
August 14, 1848, establishes the judicial power of the said territory as
follows: Sec. 9. The judicial power of said territory shall be vested in a
supreme court, district courts, probate courts, and in justices of the
peace. The supreme court shall consist of a chief justice and two associate
justices, any two of whom shall constitute a quorum, and who shall hold a
term at the seat of government of said territory annually; and they shall
hold their offices during the period of four years, and until their
successors shall be appointed and qualified. The said territory shall be
divided into three judicial districts, and a district court shall be held in
each of said districts by one of the just of the supreme court, at such
times and places as may be prescribed by law; and the said judges shall
after their appointments, respectively, reside in the districts which shall
be assigned them The jurisdiction of the several courts herein provided for,
both appellate and original, and that of the probate courts and of justices
of the peace, shall be as limited by law: Provided, That justices of the
peace shall not have jurisdiction of any case in which the title to land
shall in anywise come in question, or where the debt or damages claimed
shall exceed one hundred dollars; and the said supreme and district courts,
respectively, shall possess chancery, as well as common law, jurisdiction.
Each district court, or the judge thereof, shall appoint its clerk, who
shall also be the register in chancery, and shall keep his office at the
place where the court may be held. Writs of error, bills of exception, and
appeals, shall be allowed in all cases from the final decisions of said
district courts to the supreme court, under such regulations as may be
prescribed by law; but in no case removed to the supreme court shall trial
by jury be allowed in said court. The supreme court, or the justices
thereof, shall appoint its own clerk, and every clerk shall hold his office
at the pleasure of the court for which he shall have been appointed. Writs
of error and appeals from the final decisions of the said supreme court
shall be allowed, and way be taken to the supreme court of the United
States, in the same manner, and under the same regulations, as from the
circuit courts of the United States, where the value of the property, or the
amount in controversy, to be ascertained by the oath or affirmation of
either party, or other competent witness, shall exceed two thousand dollars;
and in all cases where the constitution of the United States, or acts of
congress, or a treaty of the United States, is brought in question; and each
of the said district courts shall have and exercise the same jurisdiction in
all cases arising under the constitution of the United States, and the laws
of said territory, as is vested in the circuit and district courts of the
United States writs of error and appeal in all such cases shall be made to
the supreme court of said territory, the same as in other cases. Writs of
error and, appeals from the final decisions of said supreme court shall be
allowed, and may be taken to the supreme court of the United States, in the
same manner as from the circuit courts of the United States, where the value
of the property, or the amount in controversy, shall exceed two thousand
dollars; and each of said district courts shall have and exercise the same
jurisdiction in all cases arising under the constitution and laws of the
United States, as is vested in the circuit and district courts of the United
States, and also of all cases arising under the laws of the said territory,
and otherwise. The said clerk shall receive, in all such cases, the same
fees which the clerks of the district courts of the late Wisconsin Territory
received for similar services.
159.-10. There shall be appointed an attorney for said territory, who
shall continue in office for four years, and until his successor shall be
appointed and qualified, unless sooner removed by the president, and who
shall receive the same fees and salary as were provided by law for the
attorney of the United States for the late territory of Wisconsin. There
shall also be a marshal for the territory appointed, who shall hold his
office for four years, and until his successor shall be appointed and
qualified, unless sooner removed by the president, and who shall execute all
processes issuing from the said courts, when exercising their jurisdiction
as circuit and district courts of the United States; he shall perform the
duties, be subject to the same regulation and penalties, and be entitled to
the same fees, as were provided by law for the marshal of the district court
of the United States, for the present [late] territory of Wisconsin; and
shall, in addition, be paid two hundred dollars annually as a compensation
for extra services.
160. The act to establish a territorial government for Utah, approved
September 9, 1850, contains the following provisions relative to this
subject. They are the same in most respects with the preceding. Section 9 of
this act provides, "That the judicial power of said territory shall be
vested in a supreme court, district courts, probate courts, and in justices
of the peace. The supreme court shall consist of a chief justice and two
associate justices, any two of whom shall constitute a quorum, and who shall
hold a term at the seat of government of said territory annually, and they
shall hold their offices during the period of four years. The said territory
shall be divided into three judicial districts, and a district court shall
be held in each of said districts by one of the justices of the supreme
court, at such time and place as may be prescribed by law; and the said
judges shall, after their appointments, respectively, reside in the
districts which shall be assigned them. The jurisdiction of the several
courts herein provided for, both appellate and original, and that of the
probate courts and of justices of the peace, shall be as limited by law:
Provided, That justices of the peace shall not have jurisdiction of any
matter in controversy when the title or boundaries of land may be in
dispute, or where the debt or sum claimed shall exceed one hundred dollars;
and the said supreme and district courts, respectively, shall possess
chancery as well as common law jurisdiction. Each district court, or the
judge thereof, shall appoint its clerk, who shall also be the register in
chancery, and shall keep his office at the place where the court may be
held. Writs of error, bills of exception, and appeals shall be allowed in
all cases from the final decisions of said district courts to the supreme
court, under such regulations as may be prescribed by law; but in no case
removed to the supreme court shall trial by jury be allowed in said court.
The supreme court, or the justices thereof, shall appoint its own clerk, and
every clerk shall hold his office at the pleasure of the court for which be
shall have been appointed. Writs of error, and appeals from the final
decisions of said supreme court, shall be allowed, and may be taken to the
supreme court of the United States, in the same manner and under the same
regulations as from the circuit courts of the United States, where the value
of the property or the amount in controversy, to be ascertained by the oath
or affirmation of either party, or other competent witness, shall exceed two
thousand dollars, except only that, in all, cases involving title to slaves,
the said writs of error or appeals shall be allowed and decided by the said
supreme court, without regard to the value of the matter, property, or title
in controversy; and except, also, that a writ of error or appeal shall also
be allowed to the supreme court of the United States, from the decisions of
the said supreme court created by this act, or of any judge thereof, or of
the district courts created by this act, or of any judge thereof, upon any
writ of habeas corpus involving the question of personal freedom: and each
of the said district courts shall have and exercise the same jurisdiction in
all cases arising under the constitution and laws of the United States as is
vested in the circuit and district courts of the United States; and the said
supreme and district courts of the said territory, and the respective judges
thereof, shall and may grant writs of habeas corpus in all cases in which
the same are granted by the judges of the United States in the District of
Columbia; and the first six days of every term of said courts, or so much
thereof as shall be necessary, shall be appropriated to the trial of causes
arising under the said constitution and laws; and writs of error and appeal,
in all such cases, shall be made to the supreme court of said territory, the
same as in other cases. The said clerk shall receive in all such cases the
same fees which the clerks of the district courts of Oregon territory now
receive for similar services.
161. "There shall be appointed an attorney for said territory, who shall
continue in office for four years, unless sooner removed by the president,
and who shall receive the same fees and salary as the attorney of the United
States for the present territory of Oregon. There shall also be a marshal
for the territory appointed, who shall hold his office for four years,
unless sooner removed by the president, and who shall execute all processes
issuing from the said courts, when exercising their jurisdiction as circuit
and district courts of the United States: he shall perform the duties, be
subject to the same regulation and penalties, and be entitled to the same
fees as the marshall of the district court of the United States for the
present territory of Oregon; and shall, in addition, be paid two hundred
dollars annually as a compensation for extra services."

COURTESY, OR CURTESY, Scotch law. A right which vests in the husband, and is
in the nature of a life-rent. It is a counterpart of the terce. Courtesy
requires, 1st. That there shall have been a living child born of the
marriage, who is heir of the wife, or who, if surviving, would have been
entitled to succeed. 2d. That the wife shall have succeeded to the subjects
in question as heir either of line, or of talzie, or of provision. 1 Bell's
Com. 61; 2 Ersk. 9, 53. See Curtesy.

COURTESY OF ENGLAND. See Estates by the Courtesy.

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

COVENANT, remedies. The name of an action instituted for the recovery of
damages for the breach of a covenant or promise under seal. 2 Ld. Raym. 1536
F; N. B. 145 Com. Dig. Pleader, 2 V 2 Id. Covenant, A 1; Bouv. Inst. Index,
h.t.
2. The subject will be considered with reference, 1. To the kind of
claim or obligation on which this action may be maintained. 2. The form of
the declaration. 3. The plea. 4. The judgment.
3.-1. To support this action, there must be a breach of a promise
under seal. 6 Port. R. 201; 5 Pike, 263; 4 Dana, 381; 6 Miss. R. 29. Such
promise may be contained in a deed-poll, or indenture, or be express or
implied by. law from the terms of the deed; or for the performance of
something in futuro, or that something has been done; or in some cases,
though it relate to something in presenti, as that the covenantor has, a
good title. 2 Saund. 181, b. Though, in general, it is said that covenant
will not lie on a contract inpresenti, as on a covenant to stand seized, or
that a certain horse shall henceforth be the property of another. Plowd.
308; Com. Dig. Covenant, A 1; 1 Chit. PI.. 110. The action of covenant is
the peculiar remedy for the non-performance of a promise under seal, where
the damages are unliquidated, and depend in amount on the opinion of a jury,
in which case neither debt nor assumpsit can be supported but covenant as
well as the action of debt, may be maintained upon a single bill for a sum
certain. When the breach of the covenant amounts to misfeasance, the
covenantee has an election to proceed by action of covenant, or by action on
the case for a tort, as against a lessee, either during his term or
afterwards, for waste; 2 Bl. R. 1111; 2 Bl. R. 848; but this has been
questioned. When the contract under seal has been enlarged by parol, the
substituted agreement will be considered, together with the original
agreement, as a simple contract. 2 Watt's R. 451 1 Chit. Pl. 96; 3 T. R.
590.
4.-2. The declaration must state that the contract was under seal and
it should make proffer of it, or show some excuse for the omission. 3 T. 11.
151. It is not, in general, requisite to state tho consideration of the
defendant's promise, because a contract under seal usually imports a
consideration; but when the performance of the consideration constitutes a
condition precedent, such performance must be averred. So much only of the
deed and covenant should be set forth as is essential to the cause of
action: although it is usual to declare in the words of the deed, each
covenant may be stated as to its legal effect. The breach may be in the
negative of the covenant generally 4 Dall. R. 436; or, according to the
legal effect, and sometimes in the alternative and several breaches may be
assigned at common law. Damages being the object of the suit, should be laid
sufficient to cover the real amount. Vide 3 Serg. & Rawle, 364; 4 Dall. R.
436 2 Yeates' R. 470 3 Serg. & Rawle, 564, 567; 9 Serg. & Rawle, 45.
5.-3. It is said that strictly there is no general issue in this
action, though the plea of non est factum has been said by an intelligent
writer to be the general issue. Steph. Pl. 174. But this plea only puts in
issue the fact of scaling the deed. 1 Chit. Pl. 116. Non infregit
conventionem, and nil debet, have both been held to be insufficient. Com.
Dig. Pleader, 2 V 4. In Pennsylvania, by a practice peculiar to that state,
the defendant may plead covenants and under this. plea, upon notice of the
special matter, in writing, to the plaintiff, without form, he may give
anything in evidence which he might have pleaded. 4 Dall. 439; 2 Yeates,
107; 15 Serg. & Rawle, 105. And this evidence, it seems, may be given in the
circuit courts of the United States in that state without notice, unless
called for 2 W. C. C. R. 4 5 6.
6.-4. The judgment is that the plaintiff recover a named sum for his
damages, which he has sustained by reason of the breach or breaches of
covenant, together with costs.

COVENANT, contracts. A covenant, conventio, in its most general
signification, means any kind of promise or contract, whether it be made in
writing or by parol. Hawk. P. C. b. 1, c. 27, Sec. 7, s. 4. In a more
technical sense, and the one in which it is here considered, a covenant is
an agreement between two or more persons, entered into in writing and under
seal, whereby either party stipulates for the truth of certain facts, or
promises to perform or give something to the other, or to abstain from the
performance of certain things. 2 Bl. Com. 303-4; Bac. Ab. Covenant, in pr.;
4 Cruise, 446; Sheppard, Touchs. 160; 1 Harring. 151, 233 1 Bibb, 379; 2
Bibb, 614; 3 John. 44; 20 John. 85; 4 Day, 321.
2. It differs from an express assumpsit in this, that the former may be
verbal, or in writing not under seal, while the latter must always be by
deed. In an assumpsit, a consideration must be shown; in a covenant no
consideration is necessary to give it validity, even in a court of equity.
Plowd. 308; 7 T. R. 447; 4 Barn. & Ald. 652; 3 Bingh. 111.
3. It is proposed to consider first, the general requisites of a
covenant; and secondly, the several kinds of covenants.
4.-1. The general requisites are, 1st. Proper parties. 2d. Words of
agreement. 3d A legal purpose. 4th. A proper form.
5.-1st. The parties must be such as by law can enter into a contract.
If either for want of understanding, as in the case of an idiot or lunatic;
or in the case of an infant, where the contract is not for his benefit; or
where there is understanding, but owing to certain causes, as coverture, in
the case of a married woman, or duress, in every case, the parties are not
competent, they cannot bind themselves. See Parties to Actions.
6.-2d. There must be an agreement. The assent or consent must be
mutual for the agreement would be incomplete if either party withheld his
assent to any of its terms. The assent of the parties to a contract
necessarily supposes a free, fair, serious exercise of the reasoning
faculty. Now, if from any cause, this free assent be not given, the contract
is not binding. See Consent.
7.-3d. A covenant against any positive law, or public policy, is,
generally speaking, void. See Nullity; Shep. Touchs. 163. As an example of
the first, is a covenant by one man that he will rob another; and of the
last, a covenant by a merchant or tradesman that he will not follow his
occupation or calling. This, if it be unlimited, is absolutely void but, if
the covenant be that he shall not pursue his business in a particular place,
as, that he will not trade in the city of Philadelphia, the covenant is no
longer against public policy. See Shep. Touchs. 164. A covenant to do an
impossible thing is also void. Ib.
8.-4th. To make a covenant, it must, according to the definition
above given, be by deed, or under seal. No particular form of words is
necessary to make a covenant, but any words which manifest the intention of
the parties, in respect to the subject matter of the contract, are
sufficient. Sec numerous examples in Bac. Abr. Covenant, A Selw. N. P. 469;
Com. Dig. Covenant, A 2; 3 Johns. R. 44; 5 Munf. 483.
9. In Pennsylvania, Delaware, and Missouri, it is declared by statute
that the words grant, bargain, and sell, shall amount to a covenant that the
grantor was seised of an estate in fee, free from all incumbrances done or
suffered by him, and for quiet enjoyment against his acts. But it has been
adjudged that those words in the Pennsylvania statute of 1715, (and the
decision will equally apply to the statutory language in the other two
states,) did not amount to a general warranty, but merely to a covenant that
the grantor had not done any act, nor created any incumbrance whereby the
estate might be defeated. 2 Bin. 95; 11 S. & R. 111, 112; 4 Kent, Com. 460.
10.-2. The several kinds of covenants. They are, 1. Express or
implied. 1. An express, covenant, or a covenant in fact, is one expressly
agreed between the parties and inserted in the deed. The law does not
require any particular form to create an express covenant. The formal word
"covenant" is therefore not indispensably requisite. 2. Mod. 268; 3 Keb.
848; 1 Leon, 324; 1 Bing. 433; 8 J. B. Moore, 546; 1 Ch. Cas. 294; 16 East,
352; 12 East, 182 n.; 1 Bibb, 379; 2 Bibb 614; 3 John. 44; 5 Cowen, 170; 4
Day, 321 4 Conn. 508; 1 Harring. 233. The words "I oblige;" "agree," 1 Ves.
516; 2 Mod. 266; or, "I bind myself to pay so much such a day, and so much
such another day;" Hardr. 178; 3 Leon. 119, Pl. 199; are held to be
covenants; and so are the word's of a bond. 1 Ch. Cas. 194. But words
importing merely an order or direction that other persons should pay a sum
of money, are not a covenant. 6 J. B. Moore, 202, n. (a.)
11.-1. An implied covenant is one which the law intends and implies,
though it be not expressed in words. 1 Common Bench Rep. 402; co. Lit. 139,
b; Vaughan's Rep. 118; Rawle on Covenants, 364. There are some words which
of themselves do not import an express covenant, yet being made use of in
certain contracts, have a similar operation and are called covenants in law.
They are as effectually binding on the parties as if expressed in the most
unequivocal terms. Bac. Ab. Covenant, B. A few examples will fully explain
this. If a lessor demise and grant to his lessee a house or lands for a
certain term, the law will imply a covenant on the part of the lessor, that
the lessee shall during the term quietly enjoy the same against all
incumbrances. Co. Litt. 384. When in a lease the words "grant," 1 Mod. 113
Freem. 367; Cro. Eliz. 214; 4 Taunt. 609; "grant and demise," 4 Wend. 502;
"demise," 10 Mod. 162; 4 Co. 80; Hob. 12; or "demiserunt," I Show. 79 1
Salk. 137, are used, they are so many instances of implied covenants. And
the words "yielding and paying" in a lease, imply a covenant on the part of
lessee, that he will pay the rent. 9 Verm. 151; 3 Penn. 461, 464.
12.-2. Real and personal. 1st. A real covenant is one which has for
its object something annexed to, or inherent in, or connected with land or
other property. Co Litt. 334; enk 241; Cruise, Dig. tit. 32, c. 25, s. 22;
Platt. on Cov. 60, 61; 2 Bl. Com. 304. A covenant real, which necessarily
runs with the land, as to pay rent, not to cut timber, and the like, is said
to be an inherent covenant. Shep. To. 161. A covenant real runs with the
land and descends to the heir; it is also transferred to a purchaser. Such
covenants are said to run with the land, so that he who has the one is
subject to the other. Bac. Ab. Covenants, E 2. See 2 Penn. 507; 10 Wend 180;
12 Mass. 306; 17 Mass. 586; 5 Cowen, 137; 5 Ham. 156; 5 Conn. 497; 1 Wash.
C. C. 375; 8 Cowen 206; 1 Dall. 210; 11 Shep. 283; 6 Met. 139; 3 Mete. 81; 3
Harring. 338; 17 Wend. 136.
13.-2. As commonly reckoned, there are five covenants for title, viz:
1. Covenant for seisin. 2. That the grantor has perfect right to convey. 3.
That the grantee shall quietly possess and enjoy the premises without
interruption, called a covenant for quiet enjoyment. 4. The covenant against
incumbrances. 5. The covenant for further assurance. 6. Besides these
covenants, there is another frequently resorted to in the United States,
which is relied on more, perhaps, than any other, called the covenant of
warranty. See Rawle on Covenants for Title, where the import and effect of
these covenants are elaborately and luminously discussed.
14.-3. A personal covenant relates only to matters personal, as
distinguished from real, and is binding on the covenantor during life, and
on his personal representatives after his decease, in respect of his assets.
According to Sir William Blackstone, a personal covenant may be transformed
into a real, by the mere circumstance of the heirs being named therein, and
having assets by descent from the covenantor. 2 Bl. Com 304. A covenant is
personal in another sense, where the covenantor is bound to fulfill the
covenant himself; as, to teach an apprentice. F.N.B. 340, A.
15. Personal covenants are also said to be transitive and intransitive;
the former, when the duty of performing them passes to the covenantor's
representatives; the latter, when it is limited to himself; as, in the case
of teaching an apprentice. Bac. Ab. h.t.
16. As they affect each other in the same deed, covenants may be divided
into three classes. 1st. Dependent covenants are those in which the
performance, of one depends on the performance of the other; there may be
conditions which must be performed before the other party is liable to an
action on his covenant. 8 S. & R. 268; 4 Conn. 3; 1 Blackf. 175; John. 209;
2 Stew. & Port. 60; 6 Cowen 296; 3 Ala. R. 330; 3 Pike 581; 2 W. & S. 227; 5
Shep. 232; 11 Verm. 549; 4 W. C. C. 714; Platt on Cov. 71; 2 Dougl. 689;
Lofft, 191; 2 Selw. N. P. 443, 444. To ascertain whether covenants are
dependent or not, the intention of the parties is to be sought for and
regarded rather than the order or time in which the acts are to be done, or
the structure of the instrument, or the arrangements of the covenant. 4
Wash. C. C. 714; 1 Root, 170; 4 Rand. 352; 4 Rawle, 26; 5 Wend. 496; 2 John.
145; 13 Mass. 410; 2 W. & S. 227; 4 W. & S. 527; Willis, 157; 7 T. R. 130; 8
T.R. 366; 5 B. & P. 223; 1 Saund. 320 n.
17.-2d. Some covenants are mutual conditions to be performed at the
same time; these are concurrent covenants. When, in these cases, one party
is ready and offers to perform his part, and the other refuses or neglects to

perform his, he who is ready and offers, has fulfilled his engagement, and
may maintain an action for the default of the other, though it is not
certain that either is obliged to do the first act. 4 Wash. C. C. 714;
Dougl. 698; 2 Selw. N. P. 443; Platt. on Cov. 71.
18.-3d. Covenants are independent or mutual, when either party may
recover damages from the other for the injury he may have received by a
breach of the covenants in his favor, and when it is no excuse for the
defendant to allege a breach of the covenants on the part of the plaintiff.
2 Wash. C. C. R. 456; 5 Shepl. 372; 4 Leigh, 21; 3 Watts & S. 300; 13 Mass.
410; 2 Pick. 300; 2 John. 145; 10 John. 203; Minor 21; 2 Bibb, 15; 3 Stew.
361; 1 Fairf. 49; 6 Binn. 166; 2 Marsh. 429; 7 John. 249; 5 Wend. 496; 3
Miss. 329; 2 Har. & J. 467; 4 Har. & J. 285; 2 Marsh. 429; 4 Conn. 3.
19. Covenants are affirmative and negative. 1st. An affirmative covenant
is one by which the covenantor binds himself that something has already been
done or shall be performed hereafter. Such a covenant will not deprive a
man of a right lawfully enjoyed by him independently of the covenant; 5 as,
if the lessor agreed with the lessee that he shall have thorns for hedges
growing upon the land, by assignment of the lessor's bailiff; here no
restraint is imposed upon the exercise of that liberty which the law allows
to the lessee, and therefore he may take hedge-bote without assignment. Dy.
19 b, pl. 115; 1 Leon, 251.
20.-2d. A negative covenant is one where the party binds himself that
he has not performed and will not perform a certain act; as, that he will
not encumber. Such a covenant cannot be said to be performed until it
becomes impossible to break it. On this ground the courts are unwilling to
construe a covenant of this kind to be a condition precedent. Therefore,
where a tailor assigned his trade to the defendant, and covenanted
thenceforth to desist from carrying on the said business with any of the
customers, and the defendant in consideration of the performance thereof,
covenanted to pay him a life annuity of 190, it was held that if the words
"in consideration of the performance thereof," should be deemed to amount to
a condition precedent, the plaintiff would never obtain his annuity; because
as at anytime during his life he might exercise his former trade, until his
death it could never be ascertained whether he had performed the covenant or
not. 2 Saund. 156; 1 Sid. 464; 1 Mod. 64; 2 Keb. 674. The defendant,
however, on a breach by plaintiff, might have his remedy by a cross action of

covenant. There is also a difference between a negative covenant, which is
only in affirmance of an affirmative covenant precedent, and a negative
covenant which is additional to the affirmative covenant. 1 Sid. 87; 1 Keb.
334, 372. To a covenant of the former class a plea of performance generally
is good, but not to the latter; the defendant in that case must plead
specially. Id.
21. Covenants, considered with regard to the parties who are to perform
them, are joint or several.
1st. A joint covenant is one by which several parties agree to perform
or do a thing together. In this case although there are several covenantors
there is but one contract, and if the covenant be broken, all the
covenantors living, must be sued; as there is not a separate obligation of
each, they cannot be sued separately.
22.-2d. A several covenant is one entered into by one person only. It
frequently happens that a number of persons enter into the same contract,
and that each binds himself to perform the whole of it; in such case, when
the Contract is under seal, the covenantors are severally bound for the
performance of it. The terms usually employed to make a several covenant are
"severally," or "each of us." In practice, it is common for the parties to
bind themselves jointly and severally, and then the covenant is both joint
and several. Vide Hamm. on Parties 19; Cruise, Dig. tit. 32, c. 25, s. 18;
Bac. Ab. Covenant D.
23. Covenants are executed or executory.
1st. An executed covenant is one which relates to an act already
performed. Shep. To. 161.
24.-2d. An executory covenant is one to be performed at a future time.
Shep. To. 161.
25. Covenants are obligatory or declaratory.
1st. An obligatory covenant is one which is binding on the party
himself, and shall never be construed to raise a use. 1 Sid. 27; 1 Keb. 334.
26.-2d. A declaratory covenant is one which serves to limit and direct
uses. 1 Sid. 27; 1 Heb. 334.
27. Covenants are principal and auxiliary.
1st. A principal covenant is one which relates directly to the principal
matter of the contract entered into between the parties; as, if A covenants
to serve B for one year.
28.-2d. An auxiliary covenant is one, which, not relating directly to
the principal matter of the contract between the parties, yet relates to
something connected with it; as, if A covenants with B, that C will perform
his covenant to serve him for one year. In this case, if the principal
covenant is void, the auxiliary is discharged. Anstr. 256.
29. Covenants are legal or illegal. 1st. A legal covenant is one not
forbidden by law. Covenants of this kind are always binding on the parties.
30.-2d. An illegal covenant is one forbidden by law, either expressly
or by implication. A covenant entered into, in violation of, the express
provision of a statute is absolutely void. 5 Har. & J. 193; 5 N. H. Rep. 96;
6 N. H. Rep. 225; 4 Dall. 298; 6 Binn. 321; 4 S.& R. 159; 1 Binn. 118; 4
Halst. 252. A covenant is also void, if it be of immoral nature; as, a
covenant for future illicit intercourse and cohabitation; 3 Monr. 35; 3
Burr. 1568; S. C. 1 Bl. Rep. 517; 1 Esp. 13; 1 B. P. 340; or against public
policy; 5 Mass. 385; 7 Greenl. 113; 4 Mass. 370; 5 Halst. 87; 4 Wash. C. C.
297; 11 Wheat. 258; 3 Day, 145; 2 McLean, 464; 7 Watts, 152; 5 Watts & S.
315; 5 How. Miss. 769; Geo. Decis. part 1, 39 in restraint of trade, when
the restraint is general; 21 Wend. 166; 19 Pick. 51; 6 Pick. 206; 7 Cowen,
307; or fraudulent between the parties; 5 Mass. 16; 4 S. & R. 488; 4 Dall.
250; 7 W. & S. 111; or third persons; 3 Day, 450; 14 S. & R. 214; 3 Caines,
213; 15 Pick. 49; 2 John. 286 12 John. 306.
31. Covenants, in the disjunctive or alternative, are those which give
the covenantor the choice of doing, or the covenantee the choice of having,
performed one of two or more things at his election; as, a covenant to make
a lease to Titus, or pay him one hundred dollars on the fourth day of July,
as the covenantor, or the covenantee, as the case may be, shall prefer.
Platt on Cov. 21.
32. Collateral covenants are such as concern some collateral thing,
which does not at all, or not so immediately relate to the thing granted;
as, to pay a sum of money in gross, that the lessor shall distrain for rent,
on some other land than that which is demised, or the like. Touchs. 161; 4
Burr. 2446; 2 Wils. R. 27; 1 Ves. R. 56. These covenants are also termed
covenants in gross. Vide 5 Barn. & Ald. 7, 8; Platt on Cov. 69, 70.

COVENANT NOT TO SUE. This is a covenant entered into by a party who had a
cause of action at the time of making it, and by which he agrees not to sue
the party liable to such action.
2. Covenants of this nature, are either covenants perpetual not to sue,
or covenants not to sue for a limited time; for example, seven years.
3.-1. Covenants perpetual not to sue. These will be considered with
regard to their effect as relates, 1. To the covenantee; 2. To his partners
or co-debtors.
4.-1. A covenant not to sue the covenantee at all, has the effect of
a release to him, and may be pleaded as such to avoid a circuity of action.
Cro. Eliz. 623; 1 T. R. 446; 8 T. R. 486; 1 Ld. Raym 688; S. C. Holt, 178; 2
Salk. 575; 3 Salk. 298; 12 Mod. 415, 548; 7 Mass. 153, 265; 16 Mass. 24; 17
Mass. 623. And see 11 Serg. & Rawle, 149.
5.-2. Where the covenantee is jointly and severally bound with
another to the covenantor, a covenant not to sue him will be no protection
to the other who may be sued on his several obligations and such a covenant
does not mount to a release to him. 2 Salk. 575; S. C. 12 Mod. 551; 8 T. R.
168; 6 Munf. 6; 1 Com. 139; 4 Greenl. 421; 2 Dana, 107; 17 Mass. 623, 628;
16 Mass. 24; 8 Mass. 480. A covenant not to sue, entered into by only one of
several partners, cannot be set up as a release in an action by all the
partners. 3 P. & D. 149.
6.-2. Covenant not to sue for a limited time. Such a covenant does
not operate as a release, nor can it be pleaded as such, but is a covenant
only for a breach of which the obliger may bring his action. Carth. 63; 1
Show. 46; Comb 123, 4; 2 Salk. 573; 6 Wend. 471.

COVENANT FOR QUIET ENJOYMENT. A covenant usually contained in a lease, by
which the lessor covenants or agrees that the tenant shall quietly enjoy the
premises leased. 11 East, 641.
2. Such a covenant is express or implied; express, when it is so
mentioned in the deed it is implied, either from the words used, or from the
conduct of the lessor. The words "grant" or "demise" are held to amount to
an implied covenant for quiet enjoyment, unless afterwards restrained by a
qualified express covenant. 1 Chit. Pr. 344.

COVENANT TO STAND SEISED TO USES. A species of conveyance which derives its
effect from the statute of uses, and operates without transmutation of
possession.
2. By this conveyance, a person seised of lands, covenant's that he
will stand seised of them to the use of another. On executing the covenant,
the other party becomes seised of the use of the land, according to the
terms of the use; and the statute immediately annexes the possession to the
use. This conveyance has the same force and effect as a common deed of
bargain and sale; the great distinction between them is, that the former can
only be made use of among near domestic relations, for it must be founded
on the consideration of blood or marriage. 2 Bl. Com. 338; 2 Bouv. Inst. n.
2080; 4 Kent Com 480; Lilly's Reg.h.t.; 1 Vern. by Raithby, 40, n.; Cruise,
Dig. tit. 32, c. 10; 11 John. R. 337; 1 John. Cas. 91; 7 Pick. R. 111; 1
Hayw.,R. 251, 259, 271, note; 1 Conn. R. 354; 20 John. R. 85; 4 Mass. R.
135; 4 Hayw. R. 229; 1 Cowen, R. 622; 3 N. H. Rep. 234; 16 John. R. 515; 9
Wend. R. 641; 7 Mass. R. 384.

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

COVENANTEE. One in whose favor a covenant is made.

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

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

COVENTRY ACT, criminal law. The common name for the statute 22 and 23 Car.
II. c. 1; it having been enacted in consequence of an assault on Sir John
Coventry in the street, and slitting his nose, in revenge, as was supposed,
for some obnoxious words uttered by him in parliament.
2. By this statute it is enacted, that if any person shall, of malice
aforethought, and by laying in wait, unlawfully cut or disable the tongue,
put out an eye, slit the nose, cut off the nose or lip, or cut off or
disable any limb, or member of any other person, with intent to maim or
disfigure him, such person, his counsellors, aiders and abettors, shall be
guilty of felony, without benefit of clergy. 4 Bl. Com. 207. This statute is
copied by the act of the legislature of Pennsylvania, of April 22, 1794, s.
6, 3 Smith's Laws of Pa. 188; and the offence is punished by fine and
imprisonment. For the act of Connecticut, see 2 Swift's Dig. 293.

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

COVERTURE. The state or condition of a married woman.
2. During coverture, the being of the wife is civilly merged, for many
purposes, into that of her husband; she can, therefore, in general, make no
contracts without his consent, express or implied. Com. Dig. Baron and Feme,
W; Pleader, 2 A 1; 1 Ch. Pl. 19, 45; Litt. s. 28; Chit. Contr. 39; 1 Bouv.
Inst. n. 276.
3. To this rule there are some exceptions: she may contract, when it is
for her benefit, as to save her from starvation. Chit. Contr. 40.
4. In some cases, when coercion has been used by the husband to induce
her to commit crime, she is exempted from punishment. 1 Ha1e, P. C. 516; 1
Russ. Cr. 16.

COVIN, fraud. A secret contrivance between two or more persons to defraud and

prejudice another of his rights. Co. Litt 357, b; Com. Dig. Covin, A; 1 Vin.
Abr. 473. Vide Collusion; Fraud.

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

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

suffer death, or such other punishment as the said court shall adjudge.
3.-Art. 6. "Every officer or private who shall, through cowardice,
negligence, or disaffection, in the time of action, withdraw from, or keep
out of battle, or shall not do his utmost to take or destroy every vessel
which it is his duty to encounter, or shall not do his utmost endeavor to
afford relief to ships belonging to the United States, every such offender
shall, on conviction thereof by a general court martial, suffer death, or
such other punishment as the said court shall adjudge."
4. By the act for establishing rules and articles for the government of
the armies of the United States, passed April 10, 1806, it is enacted, art.
52, "any officer or soldier, who shall misbehave himself before the enemy,
run away, or shamefully abandon any fort, post, or guard, which he or they
may be commanded to defend, or speak, words inducing others to do the like,
or shall cast away his arms and ammunition, or who shall quit his post or
colors to plunder and pillage, every such offender, being duly convicted
thereof, shall suffer death, or such other punishment as shall be ordered by
the sentence of a general court martial."

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

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

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

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

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

CREDIBILITY. Worthiness of belief. To entitle a witness to credibility, he
must be competent. Vide Competency.
2. Human testimony can seldom acquire the certainty of demonstration.
Witnesses not unfrequently are mistaken or wish to deceive; the most that
can be expected is that moral certainty which arises from analogy. The
credibility which is attached to such testimony, arises. from the double
presumption that the witnesses have good sense and intelligence, and that
they are not mistaken nor deceived; they are further presumed to have
probity, and that they do not wish to deceive.
3. To gain credibility, we must be assured, first, that the witness has
not been mistaken nor deceived. To be assured as far as possible on this
subject, it is proper to consider the nature and quality of the facts
proved; the quality and person of the witness; the testimony in itself; and
to compare it with the depositions of other witnesses on the subject, and
with known facts. Secondly, we must be satisfied that he does not wish to
deceive: there are strong assurances of this, when the witness is under
oath, is a man of integrity, and disinterested. Vide Arch. Civ. Pl. 444; 5
Com. Dig. 449; 8 Watts, R. 227; Competency.

CREDIBLE WITNESS. A credible witness is one who is competent to give
evidence, and is worthy of belief. 5 Mass. 219 17 Pick. 134; 2 Curt. Ecc. R.
336. In deciding upon the credibility of a witness, it is always pertinent
to consider whether he is capable of knowing the thing thoroughly about
which he testifies. 2. Whether he was actually present at the transaction.
3. Whether he paid, sufficient attention to qualify himself to be a reporter
of it; and 4. Whether he honestly relates the affair fully as he knows it,
without any purpose or desire to deceive, or suppress or add to the truth.
2. In some of the states, as Delaware, Illinois, Maine, Maryland, Rhode
Island, Vermont, and Virginia, wills must be attested by credible witnesses.
See Attesting Witness; Competent Witness; Disinterested Witness; Respectable
Witness; and Witness.

CREDIT, common law, contracts. The ability to borrow, on the opinion
conceived by the lender that he will be repaid. This definition includes the
effect and the immediate cause of credit. The debt due in consequence of
such a contract is also called a credit; as, administrator of an the goods,
chattels, effects and credits, &c.
2. The time extended for the payment of goods sold, is also called a
credit; as, the goods were sold at six months credit.
3. In commercial law, credit is understood as opposed to debit; credit
is what is due to a merchant, debit, what is due by him
4. According to M. Duvergier, credit also signifies that influence
acquired by intrigue connected with certain social positions. 20 Toull. n.
19. This last species of credit is not, of such value as to be the object of
commerce. Vide generally, 5 Taunt. R. 338.

CREDITOR, persons, contracts. A creditor is he who has a right to require
the fulfilment of an obligation. or contract.
2. Creditors may; be divided into personal and real.
3. The former are so called, because their claims are mainly against
the person, who can reach the property of their debtors only by; virtue of
the general rule by which he who has become personally obligated, is bound
to fulfill his engagements, with all his property acquired and to be
acquired, Which is a common guaranty for all his creditors.
4. The latter are called real, because they have mortgages or other
securities binding on the real estates of their debtors.
5. It is proper to state that personal creditors may be divided into
two classes first, those who have a right on all the property of their
debtors, without considering the origin, or the nature of their claims;
secondly, those who, in consequence of some provision of law, are entitled
to some special prerogative, either in the manner of recovery, or in the
rank they are to hold among creditors; these are entitled to preference. As
an example, may be mentioned the case of the United State; when they are
creditors, they have always a preference in case of insolvent estates.
6. A creditor sometimes becomes so, unknown to his debtor, as is the
case when the former receives an assignment of commercial; paper, the title
to recover which may be conveyed either by endorsement, or, in some cases,
by mere delivery. But in general it is essential there should be a privity
of contract between the parties. Vide, generally, 7 Vin. Ab. 42; 3 Com. Dig.
343; 8 Com. Dig. 388; 1 Supp. to Ves. Jr. 302 2 Sup. to Ves. Jr. 305 Code,
7, 72, 6; Id. 8, 18; Dig 42, 6, 17; Nov. 97 ch. t3 Bouv. Inst. Index, h.t.

CREEK, mar. law. Creeks are of two kinds, viz. creeks of the sea and creeks
of ports. The former sorts are such little inlets of the sea whether within
the precinct or extent of a, port or without, which are narrow little
passages and have shore on either side of them. The latter, Viz. breaks of
ports, are by a kind of civil denomination such. They are such, that though
possibly for their extent and. situation they might be ports, yet they are
either members of or dependent upon other ports. In England it began thus:
the king, could not conveniently have a customer and comptroller in every
port or haven. But these custom officers were fixed at some eminent port;
and the smaller adjacent ports became by that means creeks, or appendants.
of that where these custom officers were placed. 1 Chit. Com. Law, 726;
Hale's Tract. de Portibus Maris, part 2, c. 1, vol. 1, p. 46; Com. Dig.
Navigation, C; Callis, 34.
2. In a more popular sense, creek signifies a small stream, less than a
river. 12 Pick. R. 184,

CRETION, civil law.. The acceptance of a succession. Cretion was an act made
before a magistrate, by which an instituted heir, who was required to accept
of the succession within a certain time, declares within that time that he
accepted the succession. Clef cles Lois Rom. h.t.
2. Cretion is also used to signify the term during which the heir is
allowed to make his election to take or not to take the inheritance. It is
so called, because the heir is allowed to see, cernere, examine, and decide.
Gaii, lust. lib. 2, Sec. 164.

CREW. Those persons who are employed in the navigation of a vessel.
2. A vessel to be seaworthy must have a sufficient crew. 1 Caines, R.
32; 1 John. R. 184.
3. In general, the master or captain (q.v.) has the selection of the
crew. Vide Muster roll; Seaman; Ship; Shipping articles.

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

CRIER. An inferior officer of a court, whose duty it is to open and adjourn
the court, when ordered by the judges; to make proclamations and obey the
directions of the court in anything which concerns the administration of
justice.

CRIME. A crime is an offence against a public law. This word, in its most
general signification, comprehends all offences but, in its limited sense,
it is confined to felony. 1 Chitty, Gen. Pr. 14.
2. The term misdemeanor includes every offence inferior to felony, but
punishable by indictment or by particular prescribed proceedings.
3. The term offence, also, may be considered as, having the same
meaning, but is usually, by itself, understood to be a crime not indictable
but punishable, summarily, or by the forfeiture of, a penalty. Burn's Just.
Misdemeanor.
4. Crimes are defined and punished by statutes and by the common law.
Most common law offences are as well known, and as precisely ascertained, as
those which are defined by statutes; yet, from the difficulty of exactly
defining and describing every act which ought to be punished, the vital and
preserving principle has been adopted, that all immoral acts which tend to
the prejudice of the community are punishable by courts of justice. 2
Swift's Dig.
5. Crimes are mala in se, or bad in themselves; and these include. all
offences against the moral law; or they are mala prohibita, bad because
prohibited, as being against sound policy; which, unless prohibited, would
be innocent or indifferent. Crimes may be classed into such as affect:
6.-1. Religion and public worship: viz. blasphemy, disturbing public
worship.
7.-2. The sovereign power: treason, misprision of treason.
8.-3. The current coin: as counterfeiting or impairing it.
9.-4. Public justice: 1. Bribery of judges or jurors, or receiving
the bribe. 2. Perjury. 3. Prison breaking. 4. Rescue. 5. Barratry. 6.
Maintenance. 7. Champerty. 8. Compounding felonies. 9. Misprision of
felonies. 10. Oppression. 11. Extortion. 12. Suppressing evidence. 13.
Negligence or misconduct in inferior officers. 14. Obstructing legal
process. 15. Embracery.
10.-5. Public peace. 1. Challenges to fight a duel. 2. Riots, routs
and unlawful assemblies. 3. Affrays. 4. Libels.
11.-6. Public trade. 1. Cheats. 2. Forestalling. S. Regrating. 4.
Engrossing. 5. Monopolies.
12.-7. Chastity. 1. Sodomy. 2. Adultery. 3. Incest. 4. Bigamy. 5.
Fornication.
13.-8. Decency and morality. 1. Public indecency. 2. Drunkenness. 3.
Violating the grave.
14.-9. Public police and economy. 1. Common nuisances. 2. Keeping
disorderly houses and bawdy houses. 3. Idleness, vagrancy, and beggary.
15.-10. Public. policy. 1. Gambling. 2. Illegal lotteries.
16.-11. Individuals. 1. Homicide, which is justifiable, excusable or
felonious. 2. Mayhem. 3. Rape. 4. Poisoning, with intent to murder. 5.
Administering drugs to a woman quick with child to cause, miscarriage. 6.
Concealing death of bastard child. 7. Assault and battery, which is either
simple or with intent to commit some other crime. 8. kidnapping. 9. False
imprisonment. 10. Abduction.
17.-12. Private property. 1. Burglary. 2. Arson. 3. Robbery. 4.,
Forgery. Counterfeiting. 6. Larceny. 7. Receiving stolen goods, knowing them
to have been stolen, or theft-bote. 8. Malicious mischief.
18.-13. The public, individuals, or their property, according to the
intent of the criminal. 1. Conspiracy.

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

CRIMEN FALSI, civil law, crime. It is a fraudulent alteration, or forgery,
to conceal or alter the truth, to the prejudice of another. This crime may,
be committed in three ways, namely: 1. By forgery. 2. By false declarations
or false oath, perjury. 3. By acts; as, by dealing with false weights and
measures, by altering the current coin, by making false keys, and the like.
Vide Dig. 48, 10, 22; Dig. 34, 8 2; Code, lib. 9, t. 22, 1. 2, 5, 9. 11, 16,
17, 23, and 24; Merl. Rep. h.t.; 1 Bro. Civ. Law, 426; 1 Phil. Ev. 26; 2
Stark. Ev. 715.
2. What is understood by this, term in the common law, is not very
clearly defined. Peake's Ev. 133; 1 Phil. Ev. 24; 2 Stark. Ev. 715. It
extends to forgery, perjury, subornation of perjury, suppression of
testimony by bribery, and conspiracy to convict of perjury. See 12 Mod. 209;
2 S. & R. 552; 1 Greenl. Ev. Sec. 373; and article Faux.

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

CRIMINAL CONVERSATION, crim. law. This phrase is usually employed to denote
the crime of adultery. It is abbreviated crim. con. Bac. Ab. Marriage, E 2;
4 Blackf. R. 157.
2. The remedy for criminal conversation is, by an action on the case
for damages. That the plaintiff connived, or assented to, his wife's
infidelity, or that he prostituted her for gain, is a complete answer to the
action. See Connivance. But the facts that the wife's character for chastity
was bad before the plaintiff married her; that he lived with her after he
knew of the criminal intimacy with the defendant; that he had connived at
her intimacy with other men;, or that the plaintiff had been false to his
wife, only go in mitigation of damages. 4 N. Hamp. R. 501.
3. The wife cannot maintain an action for criminal conversation with
her husband; and for this, among other reasons, because her husband, who is
particeps criminis, must be joined with her as plaintiff.

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

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

TO CRIMINATE. To accuse of a crime; to admit having committed a crime or
misdemeanor.
2. It is a rule, that a witness cannot be compelled to answer any
question which has a tendency to expose him to a penalty, or to any kind of
punishment, or to a criminal charge. 3 Bouv. Inst. n. 3209-12; 4 St. Tr. 6;
10 How. St. Tr. 1096; 6 St. Tr. 649; 16 How. St. Tr. 1149; 2 Dougl. R. 593;
2 Ld. Raym. 1088; 24 How. St. Tr. 720; 16 Ves. jr. 242; 2 Swanst. Ch. R.
216; 1 Cranch. R. 144; 2 Yerg. R. 110 5 Day, Rep. 260; I Carr., & Payne, 11
2 Nott & M'C. 13; 6 Cowen, Rep. 254; 2 Peak. N. P. C. 106; 1 John. R. 498;
12 S. & R. 284; 8 Wend. 598.
3. An accomplice, admitted to give evidence against his associates in
guilt, is bound to make a full and fair confession of the whole truth
respecting the subject-matter of the prosecution; but he is not bound to
answer with respect to his share in other offences, in which he was not
concerned with the prisoner. 9 Cowen, R. 721, note (a); 2 Carr. & Payne,
411. Vide Disgrace,; Witness;

CRIMINATION. The act by which a party accused, is proved to be guilty.
2. It is a rule, founded in common sense, that no one is bound to
criminate himself. A witness may refuse to answer a question, when the
answer would criminate him, and subject him to punishment. And a party in
equity is not bound to answer a bill, when the answer would form a step in
the prosecution. Coop. Eq. Pl. 204; Mitf. Eq. Pl. by Jeremy, 194; Story,
Eq,. Pl. Sec. 591; 14 Ves. 59.

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

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

CROP. This word is nearly synonymous with emblements. (q.v.),
2. As between the landlord and tenant, the former has a lien; in some
of the states, upon the crop for the rent, for a limited time, and, if sold
on an execution against the tenant, the purchaser succeeds to the liability
of the tenant, for rent and good husbandry, and the crop is still liable to
be distrained. Tenn. St. 1825, c. 21; Misso. St. 377; Del. St. 1829, 366; 1
N. J. R. C. 187; Atk. Dig. 357; 1 N. Y. R. S. 746; 1 Ky. R. L. 639; 5 Watts,
R. 134; 41 Griff. Reg. 671, 404; 1 Hill. Ab. 148, 9; 5 Penn. St. R. 211.
3. A crop is not considered is a part of the real estate, so as to make
a sale of it void, when the contract has not been reduced to writing, within
the statute of frauds. 11 East, 362; 2 M. & S. 205; 5 B. & C. 829; 10 Ad. &
El. 753; 9 B. & C. 561; but see 9 M. & W. 501.
4. If a husband sow land and die, and the land which was sown is
assigned to the wife for her dower, she shall have the corn, and not the
executors of the husband. Inst. 81.

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

CROSS. contracts. A mark made by persons who are unable to write, instead of
their names.
2. When properly attested, and proved to have been made by the party
whose name is written with the mark, it is generally admitted as evidence of
the party's signature.

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

CROSS BILLS, practice. When an individual prosecutes a bill of indictment
against another, and the defendant procures another bill to be found against
the first prosecutor, the bills so found by the grand jury are called cross
bills. The most usually occur in cases of assault and battery.
2. In chancery practice it is not unusual for parties to file cross
bills. Vide Bill, cross.

CROSS-EXAMINATION, practice. The examination of a witness, by the party who
did not call him, upon matters to which he has been examined in chief.
2. Every party has a right to cross-examine a witness produced by his
antagonist, in order to test whether the witness has the knowledge of the
things he testifies and if, upon examination, it is found that the witness
had the means and ability to ascertain the facts about which he testifies,
then his memory, his motives, everything may be scrutinized by the cross-
examination.
3. In cross-examinations a great latitude is allowed in the mode of
putting questions, and the counsel may put leading questions. (q.v.) Vide
further on this subject, and for some rules which limit the abuse of this
right, 1 Stark. Ev,. 96; 1 Phil. Ev. 210; 6 Watts & Serg. 75.
4. The object of a cross-examination is to sift the evidence, and try
the credibility of a witness who has been called and given evidence in
chief. It is one of the principal tests which the law has devised for the
ascertainment of truth, and it is certainly one of the most efficacious. By
this means the situation of the witness, with respect to the parties and the
subject of litigation, his interest, his motives, his inclinations and his
prejudices, his means of obtaining a correct and certain knowledge of the
facts to which he testifies the manner in which he has used those means, his
powers of discerning the facts in the first instance, and of his capacity in
retaining and describing them, are fully investigated and ascertained. The
witness, however artful he may be, will seldom be able to elude the keen
perception of an intelligent court or jury, unless indeed his story be
founded on truth. When false, he will be liable to detection at every step.
1 Stark. Ev. 96; 1 Phil. Ev. 227; Fortese. Rep. Pref. 2 to 4; Vaugh. R. 143.
5. In order to entitle a party to a cross-examination, the witness must
have been sworn and examined; for, even if the witness be asked a question
in chief, yet if he make no answer, the opponent has no right to cross-
examine. 1 Cr. M. & Ros. 95; 1 16 S. & R. 77; Rosc. Cr. Ev. 128; 3 Car. & P.
16; S. C. 14 E. C. L. Rep. 189; 3 Bouv. Inst. n. 3217. Formerly, however,
the rule seems to have been different. 1 Phil. Ev. 211.
6. A cross-examination of a witness is not always necessary or
advisable. A witness tells the truth wholly or partially, or he tells a
falsehood. If he tells the whole truth, a cross-examination may have the
effect of rendering his testimony more circumstantial, and impressing the
jury with a stronger opinion of its truth. If he tells only a part of the
truth, and the part omitted is favorable to the client of the counsel cross-
examining, he should direct the attention of the witness to the matters
omitted. If the testimony of the witness be false, the whole force of the
cross-examination should be directed to his credibility. This is done by
questioning him as to his means of knowledge, his disinterestedness, and
other matters calculated to show a want of integrity or veracity, if there
is reason to believe the witness prejudiced, partial, or willfully dishonest.

Arch. Crim. Pl. 111. See Credible Witness.

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

CRUELTY. This word has different meanings, as it is applied to different
things. Cruelty may be, 1. From husband towards the wife, or vice versa. 2.
From superior towards inferior, 3. From master towards slave. 4. To animals.
These will be separately considered.
2.-1. Between husband and wife, those acts which affect the life, the
health, or even the comfort of the party aggrieved, and give a reasonable
apprehension of bodily hurt, are called cruelty. What merely wounds the
feelings is seldom admitted to be cruelty, unless the act be accompanied
with bodily injury, either actual or menaced. Mere austerity of temper,
petulance of manners, rudeness of language, a want of civil attention and
accommodation, even occasional sallies of passion, will not amount to legal
cruelty; 17 Conn. 189; a fortiori, the denial of little indulgences and
particular accommodations, which the delicacy of the world is apt to number
among its necessaries, is not cruelty. The negative descriptions of cruelty
are perhaps the best, under the infinite variety of cases that may occur, by
showing what is not cruelty. 1 Hagg. R. 35; S. C. 4 Eccles. R. 311, 312; 2
Hagg. Suppl. 1; S. C. 4 Eccles. R. 238; 1 McCord's Ch. R. 205; 2 J. J.
Marsh. R. 324; 2 Chit. Pr. 461, 489; Poynt. on Mar. & Div. c. 15, p. 208;
Shelf. on Mar. & Div. 425; 1 Hagg. Cons. R. 37, 458; 2 Ragg. Cons. Rep. 154;
1 Phillim. 111, 132; 8 N H. Rep. 307; 3 Mass. 321; 4 Mass. 487. It is to be
remarked that exhibitions of passion and gusts of anger, which would be
sufficient to create irreconcilable hatred between persons educated and
trained to respect each other's feelings, would, with persons of coarse
manners and habits, have but a momentary effect. An act which towards the
latter would cause but a momentary difference, would with the former, be
excessive cruelty. 1 Briand Med. Leg. 1 ere part. c. 2, art. 3.
3.-2. Cruelty towards weak and helpless persons takes place where a
party bound to provide for and protect them, either abuses them by whipping
them unnecessarily, or by neglecting to provide for them those necessaries
which their helpless condition requires. To expose a person of tender years,
under a party's care, to the inclemency of the weather; 2 Campb. 650; or to
keep such a child, unable to provide for himself, without adequate food; 1
Leach, 137; Russ. & Ry. 20 or an overseer neglecting to provide food and
medical care to a pauper having urgent and immediate occasion for them;
Russ. & Ry. 46, 47, 48; are examples of this species of cruelty.
4.-3. By the civil code of Louisiana, art. 192, it is enacted, that
when the master shall be convicted of cruel treatment of his slave, the
judge may pronounce, besides the penalty established for such cases, that
the slave shall be sold at public auction, in order to place him out of the
reach of the power which his master has abused.
5.-4. Cruelty to animals is an indictable offence. A defendant was
convicted of a misdemeanor for tying the tongue of a calf so near the root
as to prevent its sucking, in order to sell the cow at a greater price, by
giving to her udder the appearance of being full of milk, while affording
the calf all he needed. 6 Rogers, City Hall Rec. 62. A man may be indicted
for cruelly beating his horse. 3 Rogers, City Rec. 191.

CRUISE, mar. law. A voyage or expedition in quest of vessels or fleets of
the enemy which may be expected to sail through any particular track of the
sea, at a certain season of the year the region in which these cruises are
performed is usually termed the rendezvous or cruising latitude.
2. When the ships employed for this purpose, which are accordingly
called cruisers, have arrived at the destined station, they traverse the
sea, backwards and forwards, under an easy sail, and within a limited space,
conjectured to be in the track of their expected adversaries. Wesk. Ins.
h.t.; Lex Merc. Rediv. 271, 284; Dougl. 11. 509; Park. Ins. 58; Marsh. Ins.
196, 199, 520; 2 Gallis. 268.

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

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

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

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

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

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

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

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

CUM PERTINENTIS. With the appurtenances. See Appurtenances.

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

CUM TESTAMENTO ANNEXO. With the testament or will annexed. It often happens
that the deceased, although he makes a will, appoints no executor, or else
the appointment fails; in either of which events he is said to die quasi
intestatus. 2 Inst. 397. The appointment of an executor fails, 1st. When the
person appointed refuses to act. 2d. When the person appointed dies before
the testator, or before he has proved the will, or when, from any other
legal cause, he is incapable of acting. 3d. When the executor dies
intestate, (and in some places, as in Pennsylvania, whether he die testate
or intestate,) after having proved the will, but before he has administered
all the personal estate of the deceased. In all these cases, as well as when
no executor has been appointed, administration, with the will annexed, must
be granted by the proper officer. In the case where the goods are, not all
administered before the death of the executor, the administration is also
called an administration de bonis non.
2. The office of such an an administrator differs little from that of
an executor. Vide Com. Dig. Administration; Will. Ex. p. 1, b. 5, c. 3, s.
1; 2 Bl. Com. 504-5; 11 Vin. Ab. 78; Toll. 92 Gord. Law of Deced. 98.

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

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

CURATE, eccl. law. One who represents the incumbent of a church, person,
or20 vicar, and takes care of the church, and performs divine service in his
stead.

CURATOR, persons, contracts. One who has been legally appointed to take care
of the interests of one who, on account of his youth, or defect of his
understanding, or for some other cause, is unable to attend to them himself.
2. There are curators ad bona, of property, who administer the estate
of a minor, take care of his person, and intervene in all his contracts;
curators ad litem, of suits, who assist the minor in courts of justice, and
act as curator ad bona in cases where the interests of the curator are
opposed to the interests of the minor. Civ. Code of Louis. art. 357 to 366.
There are also curators of insane persons Id. art. 31; and of vacant
successions and absent heirs. Id. art. 1105 to 1125.
3. The term curator is usually employed in the civil law, for that of
guardian.

CURATORSHIP, offices, contracts, in the civil law. The power given by
authority of law, to one or more persons, to administer the property of an
individual who is unable to take care of his own estate and affairs, either
on account of his absence without an authorized agent, or in consequence of
his prodigality, or want of mind. Poth. Tr. des Personnes, t. 6, s. 5. As to
the laws of Louisiana, which authorize a curatorship, vide Civ. Code, art.
31, 50, et seq. 357, et seq.; 382, 1105, et seq.
2. Curatorship differs from tutorship, (q.v.) in this, that the latter
is instituted for the protection of property in the first place, and,
secondly, of the person; while the former is intended to protect, first,
the person, and, secondly, the property. 1 Lecons Elem. du Droit Civ. Rom.
241.

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

CURE. A restoration to health.
2. A person who had quitted the habit of drunkenness for the space of
nine months, in consequence of medicines he had taken, and who had lost his
appetite for ardent spirits, was held to have been cured. 7 Yerg. R. 146.
3. In a figurative sense, to cure is to remedy any defect; as, an
informal statement of the plaintiff's cause of action in his declaration is
cured by verdict, provided it be substantially stated.

CURFEW. The name of a law, established during the reign of the English
king, William, the conqueror, by which the people were commanded to dispense
with fire and candle at eight o'clock at night.
It was abolished in the reign of Henry I., but afterwards it signified
the time at which the curfew formerly took place. The word curfew is
derived, probably, from couvre few, or cover fire. 4 Bl. Com. 419, 420.

CURIA. A court of justice.

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

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

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

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

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

CURRENT, merc. law. A term used to express present time; the current month;
i.e. the present month. Price current, is the ordinary price at the time
spoken of. A printed paper, containing such prices, is also called a price
current.
2. Current, in another sense, signifies that which is readily received;
as, current money.

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

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

CURTILAGE, estates. The open space situated within a common
enclosure belonging to a dwelling-house. Vide 2 Roll, Ab. 1, l. 30;
Com. dig. Grant, E 7, E 9; Russ. & Ry. 360; Id. 334, 357; Ry &
Mood. 13; 2 Leach, 913; 2 Bos. & Pull. 508; 2 East, P. C. 494;
Russ. & Ry. 170, 289, 322; 22 Eng. Com. Law R. 330; 1 Ch. Pr. 175;
Shep. Touchs. 94.

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

CUSTOM. A usage which had acquired the force of law. It is, in fact, a lex
loci, which regulates all local or real property within its limits. A
repugnancy which destroys it, must be such as to show it never did exist. 5
T. R. 414. In Pennsylvania no customs have the force of law but those which
prevail throughout the state. 6 Binn. 419, 20.
2. A custom derives its force from the tacit consent of the legislature
and the people, and supposes an original, actual deed or agreement. 2 Bl.
Com. 30, 31; 1 Chit. Pr. 283. Therefore, custom is the best interpreter of
laws: optima est legum interpres consuetudo. Dig. 1, 8, 37; 2 Inst. 18. It
follows, therefore, there; can be no custom in relation to a matter
regulated by law. 8 M. R. 309. Law cannot be established or abrogated except
by the sovereign will, but this will may be express or implied and presumed
and whether it manifests itself by word or by a series of facts, is of
little importance. When a custom is public, peaceable, uniform, general,
continued, reasonable and certain, and has lasted "time whereof the memory
of man runneth not to the contrary," it acquires the force of law. And when
any doubts arise as to the meaning of a statute, the custom which has
prevailed on the subject ought to have weight in its construction, for the
manner in which a law has always been executed is one of its modes of
interpretation. 4 Penn. St. Rep. 13.
3. Customs are general or, particular customs. 1. By general customs is
meant the common law itself, by which proceedings and determinations in
courts are guided.
2. Particular customs, are those which affect the inhabitants of some
particular districts only. 1 Bl. Com. 68, 74. Vide 1 Bouv. Inst. n. 121 Bac.
Ab. h.t.; 1 Bl. Com. 76; 2 Bl. Com. 31; 1 Lill. Reg. 516; 7 Vin. Ab. 164;
Com. Dig. h.t.; Nelson's Ab. h.t. the various Amer. Digs. h.t. Ayl. Pand.
15, 16; Ayl. Pareg. 194; Doct. Pl. 201; 3 W. C. C. R. 150; 1 Gilp. 486; Pet.
C. C. R. 220; I Edw. Ch. R. 146; 1 Gall. R. 443; 3 Watts, R. 178; 1 Rep.
Const. Ct. 303, 308; 1 Caines, R. 45; 15 Mass. R. 433; 1 Hill, R. 270;
Wright, R. 573; 1 N. & M. 176; 5 Binn. R. 287; 5 Ham. R. 436; 3 Conn. R. 9;
2 Pet. R. 148; 6 Pet. R. 715; 6 Porter R. 123; 2 N. H. Rep. 93; 1 Hall, R.
612; 1 Harr. & Gill, 239; 1 N. S. 192; 4 L. R. 160; 7 L. R. 529; Id. 215.

CUSTOM OF MERCHANTS, lex mercatoria. A system of customs acknowledged and
taken notice of by all nations, and are, therefore, a part of the general
law of the land. See Law merchant, and 1 Chit. Bl. 76, note 9.

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

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

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

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

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

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

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

CZARINA. The title of the empress of Russia.

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