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CABALLERIA, Spanish law. A measure of land, which is different
in different provinces. Diccionario por la Real Academia. In
those parts of the United States, which formerly belonged to
Spain, the caballeria is a lot of one hundred feet front and two
hundred feet deep, and equal, in all respects, to five peonias.
(q. v.) 2 White's Coll. 49; 12 Pet. 444. note. See Fanegas.
CABINET. Certain officers who taken collectively make a board;
as, the president's, cabinet, which is usually composed of the
secretary of state, secretary of the treasury, the attorney
general, and some others.
2. These officers are the advisers of the president.
CADASTRE. A term derived from the French, which has been
adopted in Louisiana, and which signifies the official statement
of the quantity and value of real property in any district, made
for the purpose of justly apportioning the taxes payable on such
property. 3 Am. St. Pap. 679; 12 Pet. 428, n.
CADET. A younger brother, one trained up for the army or navy.
CADI. The name of a civil magistrate among the Turks.
CALENDER. An almanac. Julius Caesar ordained that the Roman
year should consist of 365 days, except every fourth year, which
should contain 366, the additional day to be reckoned by counting
the twenty-fourth day of February (which was the 6th of the
calends of March) twice. See Bissextile is period of time exceeds
the solar year by eleven minutes or there abouts, which amounts
to the error of a day in about 131 years. In 1582, the error
amounted to eleven days or more, which was corrected by Pope
Gregory. Out of this correction grew the distinction between Old
and New Style. The Gregorian or New Style was introduced into
England in 1752, the 2d day of September (0. S.) of that year
being reckoned as the 14th day of September, (N. S.) glee
Almanac.
CALENDER, crim. law. A list of prisoners, containing their
names, the time when they were committed, and by whom, and the
cause of their commitments.
CALIFORNIA. The name of one of the states of the United States.
It was admitted into the Union, by-an Act of Congress, passed the
9th September, 1850, entitled "An act for the admission of the
state of California into the Union."
§1. This section enacts and declares that the state of
California shall be one of the United States, and admitted into
the Union on an equal footing with the original states, in all
respects whatever.
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§2. Enacts that the state of California shall be entitled to
two representatives, until the representatives in Congress shall
be apportioned according to the actual enumeration of the
inhabitants, of the United States.
§3. By this section a condition is expressly imposed on the
said state that the people thereof shall never interfere with the
primary disposal of the public lands within its limits, nor pass
any law, nor do any act, whereby the title of the United States
to, and right to dispose of the same, shall be impaired or
questioned. It also provides that they shall never lay any tax,
or assessment of any description whatever, upon the public domain
of the United States; and that in no case shall non-resident
proprietors, who are citizens of the United States, be taxed
higher than residents; that all navigable waters within the said
state shall be common highways, forever free, as well to the
inhabitants of said state, as to citizens of the United States,
without any tax, impost or duty therefor; with this proviso,
viz., that nothing contained in the act shall be construed as
recognizing or rejecting the propositions tendered by the people
of California, as articles of compact in the ordinance adopted by
the convention whicb formed the constitution of that state.
2. The principal features of the constitution, of California,
are similar to those of most, of the recently formed state
constitutions. It establishes an elective judiciary, and: confers
on the executive a qualified veto. It prohibits the creation of a
state debt exceeding $300,000. It provides for the protection of
the homestead from execution, and secures the property of married
females separate from that of their husbands. It makes a liberal
provision for the support of schools, prohibits the legislature
from granting divorces, autborizing lotteries, and creating
corporations, except by general laws, and from establishing any
bank's of issue or circulation. It provides also that every
stockholder of a corporation or joint-stock association, shall be
individually and personally liable for his proportion of all its,
debts or liabilities. There is also a clause prohibiting slavery,
which, it is said, was inserted by the unanimous vote of the
delegates.
CALLING THE PLAINTIFF, practice. When a plaintiff perceives
that he has not given evidence to maintain his issue, and intends
to become nonsuited, he withdraws himself, when the cryer is
ordered to call the plaintiff, and on his failing to appear, he
becomes nonsuited. 3 Bl. Com. 376.
CALUMNIATORS, civil law. Persons who accuse others, whom they
know to be innocent, of having committed crimes. Code 9, 46, 9.
CAMBIST. A person skilled in exchange; one who deals or trades
in promissory notes or bills of exchange.
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CAMERA STELLATA, Eng. law. The court of the Star Chamber, now
abolished.
CAMPARTUM. A part or portion of a larger field or ground,
which would otherwise be in gross or common. Vide Champerty.
CANAL. A trench dug for leading water in a particular
direction, and confin-
ing it.
2. Public canals are generally protected by the law which
authorizes their being made. Various points have arisen under
numerous laws authorizing the construction of canals, which have
been decided in cases reported in 1 Yeates, 430; 1 Binn. 70; 1
Pennsyl. 462; 2 Pennsyl. 517; 7 Mass. 169; 1 Sumu. 46; 20
Johns. 103, 735; 2 Johns. 283; 7 John. Ch. 315; 1 Wend. 474;
5 Wend. 166; 8 Wend. 469; 4 Wend. 667; 6 Cowen, 698; 7 Cowen,
526 4 Hamm. 253; 5 Hamm. 141, 391; 6 Hamm. 126; 1 N. H. Rep.
339; See River.
CANCELLARIA CURIA. The name formerly given to the court of
chancery.
CANCELLATION. Its general acceptation, is the act of crossing a
writing; it is used sometimes to signify the manual operation of
tearing or destroying the instrument itself. Hyde v. Hyde, 1 Eq.
Cas. Abr. 409; Rob. on Wills, 367, n.
2. Cancelling a will, animo revocandi, is a revocation of it,
and it is unnecessary to show a complete destruction or
obliteration. 2 B. & B. 650; 3 B. & A. 489; 2 Bl. R. 1043; 2
Nott & M'Cord, 272; Whart. Dig. Wills, c.; 4 Mass. 462. When a
duplicate has been cancelled, animo revocandi, it is the
cancellation of both parts. 2 Lee, Ecc. R. 532.
3. But the mere act of cancelling a will is nothing, unless it
be done animo revocandi, and evidence is admissible to show, quo
animo, the testator cancelled it., 7 Johns. 394 2 Dall. 266; S.
C. 2 Yeates, 170; 4 Serg. & Rawle, 297; cited 2 Dall. 267, n.;
3 Hen. & Munf. 502; Rob. on Wills, 365; Lovel, 178; Toll. on
Ex'rs, Index, h. t.; 3 Stark. Ev. 1714; 1 Adams' Rep. 529 Mass.
307; 5 Conn. 262; 4 Wend. 474; 4 Wend. 585; 1 Harr. & M'H.
162; 4 Conn. 550; 8 Verm. 373; 1 N. H. Rep. 1; 4 N. H. Rep.
191; 2 Eccl. Rep. 23.
4. As to the effect of cancelling a deed, which has not been
recorded, see 1 Adams' Rep. 1; Palm. 403; Latch. 226; Gilb.
Law, Ev. 109, 110; 2 H . Bl. 263: 2 Johns. 87 1 Greenl. R. 78;
10 Mass. 403; 9 Pick. 105; 4 N. H. Rep. 191; Greenl. Ev. §265;
5 Conn. 262; 4 Conn. 450; 5 Conn. 86; 2 John. R. 84; 4 Yerg.
375; 6 Mass. 24; 11 Mass. 337; 2 Curt. Ecc. R. 458.
5. As to when a court of equity will order an agreement or
other instrument to be cancelled and delivered up, see 4 Bouv.
Inst. n. 3917-22.
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CANDIDATE. One who offers himself or is offered by others for
an office.
CANON, eccl. law. This word is taken from the Greek, and
signifies a rule or law. In ecelesiastical law, it is also used
to designate an order of religious persons. Francis Duaren says,
the reason why the ecclesiastics called the rules they
established canons or rules, (canones id est regulas) and not
laws, was modesty. They did not dare to call them (leges) laws,
lest they should seem to arrogate to themselves the authority of
princes and magistrates. De Sacris Ecclesiae Ministeriis, p. 2,
in pref. See Law, Canon.
CANONIST. One well versed in canon or ecclesiastical law.
CANNON SHOT, war. The distance which a cannon will throw a
ball. 2. The whole space of the sea, within cannon shot of the
coast, is considered as making a part of the territory; and for
that reason, a vessel taken under the cannon of a neutral
fortress, is not a lawful prize. Vatt. b. 1, c. 23, s. 289, in
finem Chitt. Law of Nat. 113; Mart. Law of Nat. b. 8, c. 6, s.
6; 3 Rob. Adm. Rep. 102, 336; 5 Id. 373; 3 Hagg. Adm. R. 257.
This part of the sea being considered as part of the adjacent
territory, (q. v.) it follows that magistrates can cause the
orders of their governments to be executed there. Three miles is
considered as the greatest distance that the force of gunpowder
can carry a bomb or a ball. Azun. far. Law, part 2, c. 2, art. 2,
§15; Bouch. Inst. n. 1848. The anonymous author of the poem,
Della Natura, lib. 5, expresses this idea in the following lines:
Tanto slavanza in mar questo dominio, Quant esser puo
d'antemurale e guardia, Fin dove puo da terra in mar vibrandosi
Correr di cavo bronzo acceso fulinine. Far as the sovereign can
defend his sway, Extends his empire o'er the watery way; The
shot sent thundering to the liquid plain, Assigns the limits of
his just domain. Vide League.
CAPACITY. This word, in the law sense, denotes some ability,
power, qualifi-
cation, or competency of persons, natural, or artificial, for the
performance of civil acts, depending on their state or condition,
as defined or fixed by law; as, the capacity to devise, to
bequeath, to grant or convey lands; to take; or to take. and
hold lands to make a contract, and the like. 2 Com. Dig. 294;
Dane's Abr. h. t.
2. The constitution requires that the president, senators, and
representatives should have attained certain ages; and in the
case of the senators and representatives, that out these they
have no capacity to serve in these offices.
3. All laws which regulate the capacity of persons to contract,
are considered personal laws; such are the laws which relate to
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minority and majority; to the powers of guardians or parents, or
the disabilities of coverture. The law of the domicil generally
governs in cases of this kind. Burge. on Sureties, 89.
CAPAX DOLI. Capable of committing crime. This is said of one
who has sufficient mind and understanding to be made responsible
for his actions. See, Discretion.
CAPE, English law. A judicial writ touching a plea of lands and
tenements. The writs which bear this name are of two kinds,
namely, cape magnum, or grand, cape, and cape parvum, or petit
cape. The petit cape, is so called, not so much on account of the
smallness of the writ, as of the letter. Fleta , lib. 6, c. 55,
§40. For the difference between the form and the use of these
writs, see 2 Wms. Saund. Rep. 45, c, d; and Fleta, ubi sup.
CAPERS. Vessels of war owned by private persons, and different
from ordinary privateers (q. v.) only in size, being smaller.
Bea. Lex. Mer. 230.
CAPIAS, practice. This word, the signification of which is "
that you take," is applicable to many heads of practice. Several
writs and processes, commanding the sheriff to take the person of
the defendant, are known by the name of capias. For example:
there are writs of capias ad respondendum, writs of capias ad
computandum, writs of capias ad satisfaciendum, &c., each
especially adapted to the purposes indicated by the words used
for its designation. See 3 Bl. Com. 281; 3 Bouv. Inst. n. 2794.
CAPIAS AD AUDIENDUM JUDICIUM, practice. A writ issued in a case
of misdemeanor, after the defendant has appeared and found
guilty, and is not present when called. This writ is to bring him
to judgment. 4 BI. Com. 368.
CAPIAS AD COMPUTANDUM, practice. A writ issued in the action of
account render, upon the judgment quod computet, when the
defendant refuses to appear, in his proper person, before the
auditors, and enter into his account. According to the ancient
practice, the defendant, after arrest upon this process, might be
delivered on main-prize, or in default of finding mainpernors, he
was committed to the Fleet prison, where the auditors attended
upon him to hear and receive his account. As the object of this
process is to compel the defendant to render an account, it does
not appear to be within the scope of acts abolishing imprisonment
for debt. For precedents, see Thesaurus Brevium, 38, 39, 40; 3
Leon. 149; 1 Lutw. 47, 51 Co. Ent. 46, 47; Rast. Ent. 14, b,
15.
CAPIAS AD RESPONDENDUM, practice. A writ commanding the
sheriff, or other proper officer, to "take the body of the
defendant and to keep the same to answer, ad respondendum, the
plaintiff in a plea," &c. The amount of bail demanded ought to,
be indorsed on the writ.
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2. A defendant arrested upon this writ must be committed to
prison, unless he give a bail bond (q. v.) to the sheriff. In
some states, (as, until lately, in Pennsylvania,) it is the
practice, when the defendant is liable to this process, to
indorse on the writ, No bail required in which case he need only
give the sheriff, in writing, an authority to the prothonotary to
enter his appearance to the action, to be discharged from the
arrest. If the writ has been served, and the defendant have not
given bail, but remains in custody, it is returned C. C., cepi
corpus; if he have given bail, it is returned C. C. B. B., cepi
corpus, bail bond; if the defendant's appearance have been
accepted, the return is, " C. C. and defendant's appearance
accepted." According to the course of the practice at common law,
the writ bears teste, in the name of the chief justice, or
presiding judge of the court, on some day in term time, when the
judge is supposed to be present, not being Sunday, and is made
returnable on a regular return day. 1 Penna. Pr. 36; 1 Arch. Pr.
67.
CAPIAS AD SATISFACIENDUM, practice. A writ of execution issued
upon a judgment in a personal action, for the recovery of money,
directed to the sheriff or coroner, commanding him to take the
defendant, and him safely keep, so that he may have his body in
court on the return day, to satisfy, ad satisfaciendum, the
plaintiff. This writ is tested on a general teste day, and
returnable on a regular return day.
2. It lies after judgment in most instances in which the
defendant was subject to a capias ad respondendum before, and
plaintiffs are subject to it, when judgment has been given
against them for costs. Members of congress and of the
legislature, (eundo, morando, et redezzndo,) going to, remaining
at, and returning from the places of sitting of congress, or of
the legislature, are not liable to this process, on account of
their public capacity; nor are ambassadors, (q. v.) and other
public ministers, and their ,servants. Act of Congress of April
30, 1790, s. 25 and 26, Story's Laws United States, 88; 1 Dunl.
Pr. 95, 96; Com. Dig. Ambassador, B; 4 Dall. 321. In
Pennsylvania, women are not subject to this writ except in
actions founded upon tort, or claims arising otherwise than ex
contractu. 7 Reed's Laws of Pa. 150. In several of the United
States, the use of this writ, as well as of the capias ad
respondendum, has been prohibited in all actions instituted for
the recovery of money due upon any contract, express or implied,
or upon any judgment or decree, founded on any contract, or for
the recovery of damages for the breach of any contract, with a
few exceptions. See Arrest.
3. It is executed by arresting the body of the defendant, and
keeping him in custody. Discharging him upon his giving security
for the payment of the debt, or upon his promise to return into
custody again before the return day, is an escape, although he do
return; 13 Johns. R. 366 8 Johns. R. 98; and the sheriff is
liable for the debt. In England, a payment to the sheriff or
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other officer having the ca. sa., is no payment to the plaintiff.
Freem. 842 Lutw. 587; 2 Lev. 203; 1 Arch. Pr. 278. The law is
different in Pennsylvania. 3 Serg. & Rawle, 467. The return made
by the officer is either C. C. & C., cepi corpus et comittitur,
if the defendant have been arrested and held in custody; or N.
E. I., non est inventus, if the officer has not been able to find
him. This writ is, in common language, called a ca. sa.
CAPIAS PRO FINE, practice, crim. law. The name of a writ which
issues against a defendant who has been fined, and who does not
discharge it according to the judgment. This writ commands the
sheriff to arrest the defendant and commit him to prison, there
to remain till he pay the fine, or be otherwise discharged
according to law.
CAPIAS UTLAGATUM English practice. A capias utlagatum is
general or special;
the former against the person only, the latter against the
person, lands and goods.
2. This writ issues upon the judgment of outlawry being
returned by the sheriff upon the exigent, and it takes its name
from the words of the mandatory part of the writ, which states
the defendant being outlawed utlagatum, which word comes from the
Saxon utlagh, Latinized utlagatus, and signifies bannitus, extra
legem. Cowel.
3. The general writ of capias utlagatum commands the sheriff to
take the defendant, so that he have him before the king on a
general return day, wheresoever, &c., to do and receive what the
court shall consider of him.
4. The special capias utlagatum, like the general writ,
commands the sheriff to take the defendant. The defendant is
discharged upon an attorney's undertaking, or upon giving bond to
the sheriff, in the same manner as when the writ is general. But
the special writ also commands the sheriff to inquire by a jury,
of the defendant's goods and lands, to extend and appraise the
same, and to take them in the king's hands and safely keep them,
so that he may answer to the king for the value and issue's of
the same. 2 Arch. Pr. 161. See Outlawry.
CAPIAS IN WITHERNAM, practice. A writ issued after a return of
elongata or eloigned has been made to a writ of retorno habendo,
commanding the sheriff to take so many of the distrainer's goods
by way of reprisal, as will equal the goods mentioned in the
retorno habendo. 2 Inst. 140; F. N. B. 68; and see form in 2
Sell. Pr. 169.
CAPIATUR, pro fine. The name of a writ which was issued to levy
a fine due to the king. Bac. Ab. Fines and Amercements, in prin.
See Judgment of Capiatur.
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CAPITA, or PER CAPITA. By heads. An expression of frequent
occurrence in laws regulating the distribution of the estates of
persons dying intestate. When all the persons entitled to shares
in the distribution are of the same degree of kindred to the
deceased person, (e.g. when all are grandchildren,) and claim
directly from him in their own right and not through an
intermediate relation, they take per capita, that is, equal
shares, or share and share alike. But when they are of different
degrees of kindred, (e. g. some tho children, others the
grandchildren or the great grandchildren of the, deceased,) those
more remote take er stirpem or per stirpes, that is, they take
respectively the shares their parents (or other relation standing
in the same degree with them of the surviving kindred entitled)
who are in the nearest degree of kindred to the intestate,) would
have taken had they respectively survived the intestate. Reeves'
Law of Descent, Introd. xxvii.; also 1 Rop. on Leg. 126, 130.
See Per Capita; Per Stirpes; Stirpes;
CAPITAL, political economy, commerce. In political economy, it
is that portion of the produce of a country, which may be made
directly available either to support the human species or to the
facilitating of production.
2. In commerce, as applied to individuals, it is those objects,
whether consisting of money or other property, which a merchant,
trader, or other person adventures in an undertaking, or which he
contributes to the common stock of a partnership. 2 Bouv. Inst.
n. 1458.
3. It signifies money put out at interest.
4. The fund of a trading company or corporation is also called
capital, but in this sense the word stock is generally added to
it; thus we say the capital stock of the Bank of North America.
CAPITAL CRIME. One for the punishment of which death is
inflicted, which punishment is called capital punishment. Dane's
Ab. Index, h. t.
2. The subject of capital punishment has occupied the attention
of enlightened men for a long time, particularly since the middle
of the last century; and none deserves to be more carefully
investigated. The right of punishing its members by society
cannot be denied; but how far this right extends, by the laws of
nature or of God, has been much disputed by theoretical writers,
although it cannot be denied, that most nations, ancient and
modern, have deemed capital punishment to be within the scope of
the legitimate powers of government. Beccaria contends with zeal
that the punishment of death ought not to be inflicted in times
of peace, nor at other times, except in cases where the laws can
be maintained in no other way. Bee. Chap. 28.
3. It is not within the plan of this work to examine the
question, whether the punishment is allowed by the natural law.
The principal arguments for and against it are here given.
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4.- 1. The arguments used in favor of the abolition of capital
punishment, are;
5. - 1st. That existence is a right which men hold from God,
and which society in body can, no more than a member of that
society, deprive them of, because society is governed by the
immutable laws of humanity.
6. - 2d. That, even should the right be admitted, this is a
restraint badly selected, which does not attain its end, death
being less dreaded than either solitary confinement for life, or
the performance of hard labor and disgrace for life.
7. - 3d. That the infliction of the punishment does not prevent
crimes, any more thau, other less severe but longer punishments.
8. - 4th. That as a public example, this punishment is only a
barbarous show, better calculated to accustom mankind to the
contemplation of bloodshed, than to restrain them.
9. - 5th. That the law by taking life, when it is unnecessary
for the safety of society, must act by some other motive this can
be no other than revenge. To the extent the law punishes an
individual beyond what is requisite for the preservation of
society, and the restoration of the offender, is cruel and
barbarous. The law) to prevent a barbarous act, commits one of
the same kind,; it kills one of the members of society, to
convince the others that killing is
unlawful.
10. - 6th. That by depriving a man of life, society is deprived
of the benefits which he is able to confer upon it; for,
according to the vulgar phrase, a man hanged is good for nothing.
11. - 7th. That experience has proved that offences which were
formerly punished with death, have not increased since the
punishment has been changed to a milder one.
12. - 2. The arguments which have been urged on the other side,
are,
13. - 1st. That all that humanity commands to legislators is,
that they should inflict only necessary and useful punisliments;
and that if they keep within these bounds, the law may permit an
extreme remedy, even the punishment of death, when it is
requisite for the safety of society.
14. - 2d. That, whatever be said to the contrary, this
punishment is more repulsive than any other, as life is esteemed
above all things, and death is considered as the greatest of
evils, particularly when it is accompanied by infamy.
15. - 3d. That restrained, as this punishment ought to be, to
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the greatest crimes, it can never lose its efficacy as an
example, nor harden the multitude by the frequency of executions.
16. - 4th. That unless this punishment be placed at the top of
the scale of punishment, criminals will always kill, when they
can, while committing an inferior crime, as the punishment will
be increased only by a more protracted imprisonment, where they
still will hope for a pardon or an escape.
17th. - 5th. The essays which have been made by two countries
at least; Russia, under the reign of Elizabeth, and Tuscany,
under the reign of Leopold, where the punishment of death was
abolished, have proved unsuccessful, as that punishment has been
restored in both.
18. Arguments on theological grounds have also been advanced on
both sides. See Candlish's Contributions towards the Exposition
of the Book of Genesis, pp. 203-7. Vide Beccaria on Crimes and
Punishments; Voltaire, h. t.; Livingston's Report on a Plan of
a Penal Code; Liv. Syst. Pen. Law, 22; Bentham on Legislation,
part 3, c. 9; Report to the N. Y. Legislature; 18 Am. Jur. 334.
CAPITATION. A poll tax; an imposition which is yearly laid on
each person according to his estate and ability.
2. The Constitution of the United States provides that "no
capitation, or other direct tax, shall be laid, unless in
proportion to the census, or enumeration, therein before directed
to be taken." Art. 1, s. 9, n. 4. See 3 Dall. 171; 5 Wheat. 317.
CAPITE, descents. By the head. Distribution or succession per
capita, is said to take place when every one of the kindred in
equal degree, and not jure representationis, receive an equal
part of an estate.
CAPITULARIES.The Capitularia or Capitularies, was a code of
laws promulgated by Childebert, Clotaire, Carloman, Pepin,
Charlemague, and other kings. It was so called from the small
chapters or heads into which they were divided. The edition by
Baluze, published in 1677, is said to be the best.
CAPITULATION, war. The treaty which determines the conditions
under which a fortified place is abandoned to the commanding
officer of the army which besieges it.
2. On surrender by capitulation, all the property of the
inhabitants protected by the articles, is considered by the law
of nations as neutral, and not subject to capture on the high
seas, by the belligerent or its ally. 2 Dall.
CAPITULATION, civ.law. An agreement by which the prince and the
people, or those who have the right of. the people, regulate the
manner in which the government is to be administered. Wolff,
§989.
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CAPTAIN or SEA CAPTAIN, mar. law. The name given to the master
or commander of a vessel. He is known in this country very
generally by the name of master. (q. v.) He is also frequently
denominated patron in foreign laws and books.
2. The captains in the navy of the United States, are officers
appointed by government. Those who are employed in the mercantile
service, have not strictly an official character. They are
appointed or employed by the owners on the vessels they command.
3. It is proposed to consider the duty of the latter. Towards
the owner of the vessel he is bound by his personal attention and
care, to take all the necessary precautions for her safety; to,
proceed on the voyage in which such vessel may be engaged, and to
obey faithfully his instructions; and by all means in his power
to promote the interest of his owner. But he is not required to
violate good faith, nor employ fraud even with an enemy. 3
Cranch, 242.
4. Towards others, it is the policy of the law to hold him
responsible for all losses or damages that may happen to the
goods committed to his charge; whether they arise from
negligence, ignorance, or wilful misconduct of himself or his
mariners, or any other person on board the ship. As soon,
therefore, as goods are put on board, they are in the master's
charge, and he is bound to deliver them again in the same state
in which they were shipped, and he is answerable for all losses
or damages they may sustain, unless it proceed from au inherent
defect in the article, or from some accident or misfortune which
could not be prevented.
5. It may be laid down as a general rule, that the captain is
responsible when any loss occurs in consequence of his doing what
he ought not to do, unless he was forced by the act of God,. the
enemies of the United States, or the perils of the sea.1 Marsh.
Ins. 241; Pard. n. 658.
6. The rights of the captain are, to choose his crew as he is
responsible for their acts, this seems but just, but a reasonable
deference to the rights of the owner require that he should be
consulted, as he, as well as the captain, is responsible for the
acts of the crew. On board, the captain is invested with almost
arbitrary power overthe crew, being responsible for the abuse of
his authority. Ab. on Sbipp. 162. He may repair the ship, and, if
he is not in funds to pay the expenses of such repairs, he may
borrow money, when abroad, on the credit of his owners or of the
ship. Abb. on Sh. 127-8. In such cases, although contracting
within the ordinary scope of his owers and duties, he is
generally responsible as well as the owner. This is the
established rule of the maritime law, introduced in favor of
commerce it has been recognized and adopted by the commercial
nations of, Europe, and is derived from the civil or Roman law.
Abbott, Ship. 90; Story, Ag. §11 6 to 123, §294; Paley, Ag. by
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Lloyd, 244; 1 Liverm. Ag. 70; Poth. Ob. n. 82; Ersk. Inst. 3,
3, 43; Dig. 4, 9, 1; Poth. Pand. lib. 14, tit. 1; 3 Summ. R.
228. See Bell's Com. 505, 6th ed; Bouv. Inst. Index, h. t.
CAPTATION, French law. The act of one who succeeds in
controlling the will of another, so as to become master of it. It
is generally taken in a bad sense.
2. Captation takes place by those demonstrations of attachment
and friendship, by those assiduous attentions, by those services
and officious little presents which are usual among friends, and
by all those means which ordinarily render us agreeable to
others. When those attentions are unattended by deceit or fraud,
they are perfectly fair, and the captation is lawful; but if,
under the mask of friendship, fraud is the object, and means are
used to deceive the person with whom you are connected, then the
captation is fraudulent, and the acts procured by the captator
are void. See Influence.
CAPTATOR, French law. The name which is sometimes given, to him
who by flattery and artifice endeavors to surprise testators, and
induce them to. give legacies or devices, or to make him some
other gift. Diet. de Jur.
CAPTION, practice. That part of a legal instrument, as a
'Commission, indictment, &c., which shows where, when, and by
what authority it was taken, found or executed. As to the forms
and requisites of captions, see 1 Murph. 281; 8 Yerg. 514; 4
Iredell, 113; 6 Miss,. 469; 1 Scam. 456; 5 How. Mis. 20; 6
Blackf. 299; 1 Hawks, 354; 1 Brev. 169.
2. In the English practice, when an in ferior court in
obedience to the writ of certiorari, returns an indictment into
the K. B. , it is annexed to the caption, then called a schedule,
and the caption concludes with stating, that " it is presented in
manner and form as appears in a certain indictment thereto
annexed, " and the caption and indictment are returned on
separate parch ments. 1 Saund. 309, n. 2. Vide Dane's Ab. Index,
h. t.
3. Caption is another name for arrest. CAPTIVE. By this term is
understood one who has been taken; it is usually applied to
prisoners of war. (q.v.) Although he bas lost his liberty, a
captive does not by his captivity lose his civil rights.
CAPTOR, war. One who has talken property from an enemy; this
term is also employed to designate one who has taken an enemy.
2. Formerly, goods taken in war were adjudged to belong to the
captor; they are now considered to vest primarily, in the state
or sovereign, and belong to the individual captors only to the
extent that the municipal laws provide.
3. Captors are responsible to the owners of the property for
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all losses and damages, when the capture is tortious and without
reasonable cause in the exercise of belligerent rights. But if
the capture is originally justifiable, the captors will not be
responsible, unless by subsequent misconduct they become
trespassers ab initio. i Rob. R. 93, 96. See 2 Gall. 374; 1
Gall. 274; 1 Pet. Adm. Dee. 116; 1 Mason, R. 14.
CAPTURE, war. The taking of property by one belligerent from
another.
2. To make a good capture of a ship, it must be subdued and
taken by an enemy in open war, or by way of reprisals, or by a
pirate, and with intent to deprive the owner of it.
3. Capture may be with intent to possess both ship and cargo,
or only to seize the goods of the enemy, or contraband goods
which are on board: The former is the capture of the ship in the
proper sense of the word; the latter is only an arrest and
detention, witbout any design to deprive the owner of it. Capture
is deemed lawful, when made by a declared enemy, lawfully
commissioned and according to the laws of war; and unlawful,
when it is against the rules established by the law of nations.
Marsh. Ins. B. 1, c. 12, s. 4.See, generally, Lee on Captures,
passim; 1 Chitty's Com. Law, 377 to 512; 2 Woddes. 435 to 457;
2 Caines' C. Err 158; 7 Johns. R. 449; 3 Caines' R. 155; 11
Johns. R. 241; 13 Johns. R.161; 14 Johns. R. 227; 3 Wheat.
183; 4 Cranch, 436 Mass. 197; Bouv. Inst. Index, h. t.
CAPUT LUPINUM, Eng. law. Having the head of a wolf. An outlawed
felon was said to have the head of a wolf, and might have been
killed by any one legally. Now, such killing would be murder. 1.
Hale, Pl. C. 497. The rules of the common law on this subject are
rauch more severe in their consequences, than the doctrine of the
civil law relating to civil death. See 1 Toull. Droit Civil, n.
280, and pp. 254-5, note 3.
CARAT, weights. A carat is a weight equal to three and
one-sixth grains, in diamonds, and the like. Jac. L. Dict. See
Weight.
CARCAN, French law. A French word, which is applied to an
instrument of punishment somewhat resembling a pillory. It
sometimes signifies the punishment itself. Biret Vocab.
CARDINAL, eccl. law. The title given to one of tho highest
dignitaries of the court of Rome. Cardinals are next to the pope
in dignity; he is elected by them and out of their body. There
are cardinal bishops, cardinal priests, and cardinal deacons. See
Fleury, Hist. Eccles. liv. xxxv. n. 17, Ii. n. 19 Thomassin, part
ii. liv. i. oh. 53, part iv. liv. i. c. 79, 80 Loiseau, Traite
des Ordres, c. 3, n. 31; Andre, Droit Canon, au mot.
CARDS, crim. law. Small square pasteboards, generally of a fine
quality, on which are painted figures of various colors, and used
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for playing different games. The playing of cards for amusement
is not forbidden, but gaming for money is unlawful. Vide Faro
bank, and Gaming.
CARGO, mar. law. The entire load of a ship or other vessel.
Abb. on Sh. Index, h. t.; 1 Dall. 197; Merl. Rep. h. t.; 2
Gill & John. 136. This term is usually applied to goods only, and
does not include human beings. 1 Phill. Ins. 185; 4 Pick. 429.
But in a more extensive and less technical sense, it includes
persons; thus we say a cargo of emigrants. See 7 Mann. Gr. 729,
744.
CARNAL KNOWLEDGE, crim. law. This phrase is used to signify a
sexual connexion; as, rape is the carnal knowledge of a woman,
&c. See Rape.
CARNALLY KNEW, pleadings. This is a technical phrase, essential
in an indictment to charge the defendant with the crime of rape;
no other word or circumlocution will answer the same purpose as
these word's. Vide Ravished, and Bac. Ab. Indictment, G 1; Com.
Dig. Indictment, G 6; 1 Hale, 632; 3 Inst. 60; Co. Litt. 137;
) 1 Chit. Cr. Law, *243. It has been doubted whether these words
were indispensible. 1 East, P. C. 448. But it would be unsafe to
omit them.
CARRIERS, contracts. There are two kinds of carriers, namely,
common carriers, (q. v.) who have been considered under another
head; and private carriers. These latter are persons who,
although they do not undertake to transport the goods of such as
choose to employ them, yet agree to carry the goods of some
particular person for hire, from one place to another.
2. In such case the carrier incurs no responsibility beyond
that of any other ordinary bailee for hire, that is to say, the
responsibility of ordinary diligence. 2 Bos. & Pull. 417; 4
Taunt. 787; Selw. N. P. 382 n.; 1 Wend. R. 272; 1 Hayw. R. 14;
2 Dana, R. 430; 6 Taunt. 577; Jones, Bailm. 121; Story on
Bailm, §495. But in Gordon v. Hutchinson, 1 Watts & Serg. 285, it
was holden that a Wagoner Who carries goods for hire,
contracts,the responsibility of a common carrier, whether
transportation be his principal and direct business, or only an
occasional and incidental employment.
3. To bring a person within the description of a common
carrier, he must exercise his business as a public employment;
he must undertake to carry goods for persons generally; and he
must hold himself out as ready to engage in the transportation of
goods for hire, as a business; not as a casual occupation pro
hac vice. 1 Salk. 249; 1 Bell's Com. 467; 1 Hayw. R. 14; 1
Wend. 272; 2, Dana, R. 430. See Bouv. Inst. Index, b. t.
CARRYING AWAY, crim. law. To complete the crime of larceny, the
thief must not only feloniously tale the thing stolen, but carry
it away. The slightest carrying away will be sufficient; thus
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to snatch a diamond from a lady's ear, which is instantly dropped
among the curls of her hair. 1 Leach, 320. To remove sheets from
a bed and carry them into an adjoining room. 1 Leach, 222 n. To
take plate from a trunk, and lay it on the floor with intent to
carry it away. Ib. And to remove a package from one part of a
wagon to another, with a view to steal it; 1 Leach, 286; have
respectively been holden to be felonies. 2 Chit. Cr. Law, 919.
Vide 3 Inst. 108, 109 1 Hale, 507; Kel. 31 Ry. & Moody, 14 Bac.
Ab. Felony, D 4 Bl. Com. 231 Hawk. c.32, s. 25. Where, however,
there has not been a complete severance of the possession, it is
not a complete carrying away. 2 East, P. C. 556; 1 Hale, 508; 2
Russ. on Cr. 96. Vide Invito Domino; Larceny; Robbery; Taking.
CART BOTE. An allowance to the tenant of wood, sufficient for
carts and other instruments of husbandry.
CARTE BLANCHE. The signature of an individual or more, on a
while. paper, with a sufficient space left above it to write a
note or other writing.
2. In the course of business, it not unfrequently occurs that
for the sake of convenience, signatures in blank are given with
authority to fill them up.. These are binding upon the parties.
But the blank must be filled up by the very person authorized. 6
Mart. L. R. 707. Vide Ch. on Bills, 702 Penna. R. 200. Vide
Blank.
CARTEL,war. An agreement between two belligerent powers for the
delivery of prisoners or deserters, and also a written challenge
to a duel.
2. Cartel ship, is a ship commissioned in time of war, to
exchange prisoners, or to carry any proposals between hostile
powers; she must carry no cargo, ammunitions, or implements of
war, except a single gun for signals. The conduct of ships of
this description cannot be too narrowly watched. The service on
which they are sent is so highly important to the interests of
humanity, that it is peculiarly incumbent on all parties to take
care that it should be conducted in such a manner as not to
become a subject of jealousy and distrust between the two
nations. 4 Rob. R. 357. Vide Merl. Rep. b. t.; Dane's Ab. c. 40,
a. 6, 7; Pet. C. C. R. 106; 3 C. Rob. 141 C. Rob. 336; 1 Dods.
R. 60.
CARTMEN. Persons who carry goods and merchandise in carts,
either for great or short distances, for hire.
2. Cartmen who undertake to carry goods for hire as a common
employment, are common carriers. Story on Bailm. §496; and see 2
Wend. 327 2 N. & M. 88; 1 Murph. 41 7; 2 Bailey, 421 2 Verm.
92; 1 M'Cord, 444; Bac. Ab. Carriers, A.
CASE practice. A contested question before a court of justicea
suit or action a cause. 9 Wheat. 738.
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CASE, remedies. This is the name of an action in very general
use, which lies where a party sues for damages for any wrong or
cause of complaint towhich covenant or trespass will not lie.
Steph. Pl. 153 Wodd. 167 Ham. N. P. 1. Vide Writ of trespass on
the case. In its most comprehensive signification, case includes
assumpsit as well as an action in form ex delicto; but when
simply mentioned, it is usually understood to mean an action in
form ex delicto. 7 T. R. 36. It is a liberal action; Burr, 906,
1011 1 Bl. Rep. 199; bailable at common law. 2 Barr 927-8;
founded on the justice and conscience of the Tiff's case, and is
in the nature of a bill in equity 3 Burr, 1353, 1357 and the
substance of a count in case is the damage assigned. 1 Bl. Rep.
200.
2. An action on the case lies to recover damages for torts not
committed with force actual or implied, or having been occasioned
by force, where the matter affected was not tangible, or where
the injury was not immediate but consequential; 11 Mass. 59, 137
1 Yeates, 586; 6 S. & R. 348; 12 S. & R. 210; 18 John. 257 19
John. 381; 6 Call, 44; 2 Dana, 378 1 Marsh. 194; 2 H. & M.
423; Harper, 113; Coxe, 339; or where the interest in the
property was only in reversion. 8 Pick. 235; 7 Conn. 3282 Green,
8 1 John. 511; 3 Hawks, 2462 Murph. 61; 2 N. H. Rep. 430. In
these several cases trespass cannot be sustained. 4 T. 11. 489 7
T. R. 9. Case is also the proper remedy for a wrongful act done
under legal process regularly issuing from a court of competent
jurisdiction. 2 Conn. 700 11 Mass. 500 6 Greenl. 421; 1 Bailey,
441, 457; 9 Conn. 141; 2 Litt. 234; 3 Conn. 5373 Gill & John.
377. Vide Regular and irregular process.
3. It will be proper to consider, 1. in what cases the action
of trespass on the case lies; 2. the pleadings 3. the evidence;
4. the judgment.
4. §1. This action lies for injuries, 1. to the absolute rights
of persons 2. to the relative rights of persons; 3. to personal
property; 4. to real property.
5. - 1. When the injury has been done to the absolute rights of
persons by an act not immediate but consequential, as in the case
of special damages Irising from a public nuisance Willes, 71 to
74 or where an incumbrance had been placed in a public street,
and the plaintiff passing there received an injury; or for a
malicious prosecution. See malicious prosecution.
6. - 2. For injuries to the relative rights, as for enticing
away an infant child, per quod servitium amisit, 4 Litt. 25; for
criminal conversation, seducing or harboring wives; debauching
daughters, but in this case the daughter must live with her
father as his servant, see Seduction; or enticing away or
harboring apprentices or servants. 1 Chit. Pl. 137 2 Chit. Plead.
313, 319. When the seduction takes place in the husband's or
father's house, he may, at his election, have trespass or case;
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6 Munf. 587; Gilmer, 33but when the injury is done in the house
of another, case is the proper remedy. 5 Greenl. 546.
7. - 3. When the injury to personal property is without force
and. not immediate, but consequential, or when the plaintiff Is
right to it is in reversion, as, where property is injured by a
third person while in the hands of a hirer; 3 Camp. 187; 2
Murph. 62; 3 Hawks, 246, case is the proper remedy. 8 East, 693;
Ld. Raym. 1399; Str. 634; 1 Chit. Pl. 138.
8. - 4. When the real property which has been injured is
corporeal, and the injury is not immediate but consequential, as
for example, putting a spout so near the plaintiff's land that
the water runs upon it; 1 Chit. Pl. 126, 141; Str. 634; or
where the plaintiff's property is only in reversion. When the
injury has been done to, incorporeal rights, as for obstructing a
private way, or disturbing a party in the use of a pew, or for
injury to a franchise, as a ferry, and the like, case is the
proper remedy. l Chit. Pl. 143.
9. - §2. The declaration in case, technically so called,
differs from a declaration in trespass, chiefly in this, that in
case, it must not, in general, state the injury to have been
committed vi et armis; 3 Conn. 64; see 2 Ham. 169; 11 Mass.
57; Coxe, 339; yet after verdict, the words " with force and
arms" will, be rejected as surplusage; Harp. 122; and it ought
not to conclude contra pacem. Com. Dig. Action on the Case, C 3.
The plea is usually the general issue, not guilty.
l0. - 3. Any matter may, in general, be given in evidence,
under the plea of not guilty, except the statute of limitations.
In cases of slander and a few other instances, however, this
cannot be done. 1 Saund. 130, n. 1; Wilies, 20. When the
plaintiff declares in case, with averments appropriate to that
form of action and the evidence shows that the injury was
trespass; or when he declares in trespass, and the evidence
proves an injury for which case will lie, and not trespass, the
defendant should be acquitted by the jury, or the plaintiff
should be nonsuited. 5 Mass. 560; 16 Mass. 451; Coxe, 339; 3
John. 468.
11. - §4. The judgment is, that the plaintiff recover a sum of
money, ascertained by a jury, for his damages sustained by the
committing of the grievances complained of in the declaration,
and costs.
12. In the civil law, an action was given in all cases of
nominate contracts, which was always of the same name. But in
innominate contracts, which had always the same consideration,
but not the same name, there could be no action of the same
denomination, but an action which arose from the fact, in factum,
or an action with a form which arose from the particular
circumstance, praescriptis verbis actio. Lec. Elem. §779. Vide,
generally, Bouv. Inst. Index, h. t.
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CASE, STATED, practice. An agreement in writing, between a
plaintiff and defendant, that the facts in dispute between them
are as there agreed upon and mentioned, 3 Whart. 143.
2. The facts being thus ascertained, it is left for the court
to decide for which party is the law. As no writ of error lies on
a judgment rendered on a case stated, Dane's Ab. c. 137, art. 4,
n. §7, it is usual in the agreement to insert a clause that the
case stated shall be considered in the nature
of special verdict.
3. In that case, a writ of error lies on the judgment which may
be rendered upon it. And a writ of error will also lie on a
judgment on a case stated, when the parties have agreed to it. 8
Serg. & Rawle, 529.
4. In another sense, by a case stated is understood a statement
of all the facts of a case, together with the names of the
witnesses, and, a detail of the documents which are to support
them. In other words, it is a brief. (q. v.)
CASH, commerce. Money on hand, which a merchant, trader or
other person has to do business with.
2. Cash price, in contracts, is the price of articles paid for
in cash, in contradistinction to the credit price. Pard. n. 85;
Chipm. Contr. 110. In common parlance, bank notes are considered
as cash; but bills receivable are not.
CASH-BOOK, Commerce, accounts. One in which a merchant or
trader enters an account of all the money, or paper moneys he
receives or pays. An entry of the same thing ought to be made
under the proper dates, in the journal. The object of the
cash-book is to afford a constant facility to ascertain the true
state of a man's cash. Pard. n. 87.
CASHIER. An officer of a moneyed institution, who is entitled
by virtue of his office to take care of the cash or money of such
institution.
2. The cashier of a bank is usually entrusted with all the
funds of the bank, its notes, bills, and other choses in action,
to be used from time to time for the ordinary and extraordinary
exigencies of the bank. He usually receives directly, or tbrough
subordinate officers, all moneys and notes of the bankdelivers up
all discounted notes and other securities, when they have been
paid draws checks to withdraw the funds of the bank where they
have been deposited; and, as the executive officer of the bank,
transacts much of the business of the institution. In general,
the bank is bound by the acts of the cashier within the scope of
his authority, expressed or implied. 1 Pet. R. 46, 70Wheat. R.
300, 361 5 Wheat. R. 326; 3 Mason's R. 505; 1 Breese, R. 45; 1
Monr. Rep. 179. But the bank is not bound by a declaration of the
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cashier, not within the scope of his authority; as when a note
is about to be discountedby the bank, he tells a person that he
will incur no risk nor responsibility by becoming an indorser
upon such note. 6 Pet. R. 51; 8 Pet. R. 12.Vide 17 Mass. R. 1
Story on Ag. §114, 115; 3 Halst. R. 1; 12 Wheat. R. 183; 1
Watts & Serg. 161.
To CASHIER, punishment. To break; to deprive a military man of
his office. Example: every officer who shall be convicted, before
a general court martial, of leaving signed a false certificate
relating to the absence of either officer or private soldier, or
relative to his daily pay, shall be, cashiered. Articles of war,
art. 14.
CASSATION, French law. A decision which emanates from the
sovereign authority, and by which a sentence or judgment in the
last resort is annulled., Merl. Rep. h. t. This jurisdiction is
now given to the Cour de Cassation.
2. This court is composed of fifty-two judges, including four
presidents, an attorney-general, and six substitutes, bearing the
title of advocates general; a chief clerk, four subordinate
clerks, and eight huissiers. Its jurisdiction extends to the
examination and superintendence of the judgments and decrees of
the inferior court, both in civil and criminal cases. It is
divided into three sections, namely, the section des requetes,
the section civile, and the section criminelle. Merl. Rep. mots
Cour de Cassation.
CASSETUR BREVE, practice. That the writ be quashed. This is the
name of a judgment sometime sentered against a plaintiff when he
cannot prosecute his writ with effect, in consequence of some
allegation on the defendant's part. The plaintiff, in order to
put an end to any further proceeding in the action,enters on the
roll cassetur breve, the effect of which is to quash his own
writ,which exonerates him from the liability to any future costs,
and allows him to sue out new process. A cassetur bill a may be
entered with like effect. 3 Bl. Com. 340; and vide 5 T. R. 634;
Gould's Plead. c. 5, §139; 3 Bouv. Inst. n. 2913-14. Vide To
quash.
CASTIGATORY, punishments. An engine used to punishwomen who
have been convicted of being common scolds it is sometimes called
the trebucket, tumbrel, ducking stool, or cucking stool. This
barbarous punishment has perhaps never been inflicted in the
United States. 12 S. & It. 225. Vide Common Scold.
CASTING VOTE, legislation. The vote given by the president or
speaker of a deliberate assembly; when the votes of the other
members are equal on both sides, the casting vote then decides
the question. Dane's Ab. h. t.
CASTRATION, crim. law. The act of gelding. When this act is
maliciously performed upon a man, it is a mayhem, and punishable
as such, although the sufferer consented to it.
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2. By the ancient law of England this crime was punished by
retaliation, membrum pro membro. 3 Inst. 118. It is punished in
the United States generally by fine and imprisonment. The civil
law punished it with death. Dig. 48, 8, 4, 2. For the French law,
vide Code Penal, art. 316. 3. The consequences ofcastration, when
complete, are impotence and sterility. 1 Beck's Med. Jur. 72.
CASUPROVISO, practice. A writ of entry given by the statute of
Gloucester, c. 7, when a tenant in dower aliens in fee or for
life. It might have been brought by the reversioner against the
alienee. This, is perhaps an obsolete remedy, having yielded to
the writ of ejectment. F. N. B. 205 Dane's Ab. Index, h. t.
CASUAL. What happens fortuitously what is accidental as, the
casual revenue's of the government, are those which are
contingeut or uncertain.
CASUAL EJECTOR, pratice, ejectment. A person, supposed to come
upon-land casually, (although usually by previous agreement,)
who turns out the lessee of the person claiming the possession
against the actual tenant or occupier of the land. 3 Bl. Com.
201, 202.
2. Originally, in order to try the right by ejectment, Several
things were necessary to be made out before the court first, a
title to the land, in question, upon which the owner was to make
a formal entry; and being so in possession he executed a lease
to some third person or lessee, leaving him in possession then
the prior tenant or some other person, called the casual ejector,
either by accident or by agreement beforehand, came upon the land
and turned him out, and for this ouster or turning out, the
action was brought. But these formalities are now dispensed with,
and the trial relates merely to the title, the defendant being
bound to acknowledge the lease, entry, and ouster. 3 Bl. Com.
202;.Dane's Ab. Index, h. t.
CASUS FOEDORIS. When two nations have formed a treaty of
alliance, in anticipation of a war or other difficulty with
another, and it is required to determine the case in which the
parties must act in consequence of the alliance, this is called
the casus foederis, or case of alliance. Vattel, liv. 3, c. 6,
§88.
CASUS FORTUITUS. A fortuitous case; an uncontrollable accident
an act of God. See Act of God; Cas fortuit; Fortuitous event.
CASUS OMISSUS. An omitted case.
2. When a statute or an instrument of writing undertakes to
foresee and to provide for certain contingencies, and through
mistake, or some other cause, a case remains to be provided for,
it is said to be a casus omissus.For example, when a statute
provides for the descent of intestates estates, and omits a case,
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the estate descends as it did before the statute, whenever that,
case occurs, although it appear to be within the general scope
and intent of the statute. 2 Binn. R. 279.
3. When there has been a casus omissus in a statute, the
subject is ruled by the common law: casus omissuset oblivioni
datus dispositioni juris communis relinquitur. 5 Co. 38. Vide
Dig. 38, 1, 44 and 55 Id. 38, 2, 10; Code, 6, 52, 21 and 30.
CATCHING BARGAIN, contracts, fraud. An agreement made with an
heir expectant, for the purchase of his expectancy, at an
inadequate price.
2. In such case, the heir is, in general, entitled to relief in
equity, and way have the contract rescinded upon terms of
redemption. 1 Vern. 167; 2 Cox, 80; 2 Cli. Ca. 136; 2 Vern.,
121; 2 Freem. 111; 2 Vent. 329; 2 Rep. in Ch. 396; 1 P.Wms.
312; 3 PWms. 290, 293, n.; 1Cro. C. C. 7; 2 Atk. 133; 2
Swanst. 147, and the cases cited in the note; 1 Fonb.140 1 Supp.
to Ves. Jr. 66 Id. 361 1 Vern. 320, n. It has been said that all
persons dealing for a reversionary interest are subject to this
rule, but it may be doubted whether the course of decisions
authorizes so extensive a conclusion and whether, in order to
constitute a title to relief, the reversioner must not combine
the character of heir. 2 Swanst. 148, n. Vide 1 Ch. Pr. 112, 113,
n., 458, 826, 838, 839. A mere hard bargain is not sufficient
ground for relief.
3. The French law is in unison with these principles. An
agreement, which has for its object the succession of aman yet
alive, is generally void.Merl. Rep. mots Succession Future. Vide
also Dig. 14,6, and Lesion.
CATCHPOLE, officer. A name formerly given to a sheriff's
deputy, or to a constable, or other officer whose duty it is to
arrest persons. He was a sort of serjeant. The word is not now in
use as an official designation. Minshew ad verb.
CAUSA MATRIMONII PRAELOCUTI, Engl. law. An obsolete writ, which
lies when a woman gives land to a man in fee simple, or for a
less estate, to the intent that he should marry her and he
refuses upon request. New. Nat. Bre. 455.
CAUSE, civ. law. This word has two meanings. 1. It signifies
the delivery of the thing, or the accomplishment of the act
which is the object of a convention. Datio vel factum, quibus ab
una parte conventio, impleri caepta est. 6 Toull. n. 13, 166. 2.
it is the consideration or motive formakinga contract. An
obligation without a cause, or with a false or unlawful cause,
has no effect; but an engagement is not the less valid, though
the cause be not expressed. The cause is illicit, when it is
forbidden by law, when it is contra bones mores, or public order.
Dig. 2, 14, 7, 4; Civ. Code of Lo. a. 1887-1894 Code Civil, liv.
3, c. 2, s. 4, art. 1131-1133; Toull. liv. 3, tit. 3, c. 2, s.
4.
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CAUSE, contra torts, crim. That which produces an effect.
2. In considering a contract, an injury, or a crime, the law
for many purposes looks to the immediate, and not to any remote
cause. Bac. Max. Reg. 1; Bac. Ab. Damages, E; Sid. 433; 2
Taunt. 314. If the cause be lawful, the party will be justified;
if unlawful, he will be condemned. The following is an example in
criminal law of an immediate and remote cause. If Peter, of
malice prepense, should discharge a pistol at Paul, and miss him,
and then cast away the pistol and fly and, being pursued by Paul,
he turn round, and kill him with a dagger, the law considers the
first as the impulsive cause, and Peter would be guilty of
murder. But if Peter, with his dagger drawn, had fallen down, and
Paul in his haste had fallen upon it and killed himself, the
cause of Paul's death would have been too remote to charge Peter
as the murderer. Id.
3. In cases of insurance, the general rule is that the
immediate and not the remote cause of the loss is to be
considered; causa proximo non remota spedatur. This rule may, in
some cases, apply to carriers. Story, Bailm. §515.
4. For the reach of contracts, the contractor is liable for the
immediate effects of such breach, but not for any remote cause,
as the failure of a party who was to receive money, and did not
receive it, in consequence of which he was compelled to stop
payment. 1 Brock. Cir. C. Rep. 103. See Remote; and also Domat,
liv. 3, t. 5, s. 2, n. 4; Toull. liv. 3, n. 286; 6 Bing. R.
716; 6 Ves. 496; Pal. Ag. by Lloyd, 10; Story, Ag. §200; 3
Sumn. R. 38.
CAUSE, pleading.The reason; the motive.
2. In a replication de injuria, for example, the plaintiff
alleges that the defendant of his own wrong, and without the
cause by him in his plea alleged, did, &c. The word cause here
means without the matter of excuse alleged, and though in the
singular number, it puts in issue all the facts in the plea,
which constitute but one cause. 8 Co. 67; 11 East, 451; 1 Chit.
Pl. 585.
CAUSE, practice. A Contested question before a court of
justice; it is a Suit or action. Causes are civil or criminal.
Wood's Civ. Law, 302; Code, 2, 416.
20CAUSE OF ACTION. By this phrase is understood the right to
bring an action, which implies, that there is some person in
existence who can assert, and also a person who can lawfully be
sued; for example, where the payee of a bill was dead at the
time when it fell due, it was held the cause of action did not
accrue, and consequently the statute of limitations did not begin
to run until letters of administration had been obtained by some
one. 4 Bing. 686.
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2. There is no cause of action till the claimant can legally
sue, therefore the statute of limitations does not run from the
making of a promise, if it were to perform something at a future
time, but only from the expiration of that time, though, when the
obligor promises to pay on demand, or generally, without
specifying day, he may be sued immediately, and then the cause of
action has accrued. 5 Bar. & Cr. 860; 8 Dowl. & R. 346.When a
wrong has been committed, or a breach of duty has occurred, the
cause of action has accrued, though the claimant may be ignorant
of it. 3 Barn. & Ald. 288, 626 5 B. & C. 259; 4 C. & P. 127.
CAUTIO PRO EXPENSIS. Security for costs or expenses.
2. This term is used among the civilians, Nov. 112, c. 2, and
generally on the continent of Europe. In nearly all the countries
of Europe, a foreign plaintiff, whether resident there or not, is
required to give caution pro expenses; that is, security for
costs. In some states this requisition is modified, and, when
such plaintiff has real estate, or a commercial or manufacturing
establishent within the state, he is not required to give such
caution. Faelix, Droit. Intern. Prive, n. 106.
CAUTION. A term of the Roman civil law, which is used in
various senses. It signifies, sometimes, security, or security
promised. Generally every writing is called cautio, a caution by
which any object is provided for. Vicat, ad verb. In the common
law a distinction is made between a contract and the security.
The contract may be good and the security void. The contract may
be divisible, and the security entire and indivisible. 2 Burr,
1082. The securities or cautions judicially required of the
defendant, are, judicio sisti, to attend and appear during the
pendency of the suit; de rato, to confirm the acts of his
attorney or proctor; judicium solvi, to pay the sum adjudged
against him. Coop. Just. 647; Hall's Admiralty Practice, 12; 2
Brown, Civ. Law, 356.
CAUTION, TURATORY, Scotch law. Juratory caution is that which a
suspender swears is the best he can offer in order to obtain a
suspension. Where the suspender cannot, from his low or suspected
circumstances, procure unquestionable security, juratory caution
is admitted. Ersk. Pr. L. Scot. 4, 3, 6.
CAUTIONER, Scotch law, contracts. One who becomes bound as
caution or surety for another, for the performance of any
obligation or contract contained in a deed.
CAVEAT, practice. That hebeware. Caveat is the name of a notice
given by a party having an interest, to some officer, not to do
an act, till the party giving the notice shall have been heard;
as, a caveat to the register of wills, or judge of probate, not
to permit a will to be proved, or not to grant letters of
administration, until the party shall have been heard. A caveat
is also frequently made to prevent a patent for inventions being
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issued. 1 Bouv. Inst. 71, 534; 1 Burn's Ecc. Law, 19, 263; Bac.
Abr. Executors and Administrators, E 8; 3 Bl. Com. 246;
Proctor's Pract. 68; 3 Bin. Rep. 314; 1 Siderf. 371 Poph. 133;
Godolph. Orph. Leg. 258; 2 Brownl. 119; 2 Fonbl. Eq. book 4,
pt. 2, c. 1, §3; Ayl. Parer. 145 Nelson's Ab. h. t.; Dane's Ab.
c. 223, a. 15, §2, and a. 8, §22. See 2 Chit. Pr. 502, note b,
for a form.
CAVEAT EMPTOR. Let the purchaser take heed; that is, let him
see to it, that the title he is buying is good. This is a rule of
the common law, applicable to the sale and purchase of lands and
other real estate. If the purchaser pay the consideration money,
he cannot, as a general rule, recover it back after the deed has
been executed; except in cases of fraud, or by force of some
covenant in the deed which has been broken. The purchaser,if he
fears a defect of title, has it in his power to protect himself
by proper covenants, and if he fails to do so, the law provides
for him no remedy. Cro. Jac. 197; 1 Salk.
211 Doug. 630, 654; 1 Serg. & R. 52, 53 , 445. This rule is
discussed with ability in Rawle on Covenants for Title, p. 458,
et seq. c. 13, and the leading authorities collected. See also 2
Kent, Com. Lect. 39, p. 478; 2 Bl. Com. 451; 1 Stor , Eq. §212
6 Ves. 678; 10 Ves. 505; 3 Cranch, 270; 2 Day, R. 128; Sugd.
Vend. 221 1 Bouv. Inst. n. 954-5.
2. This rule has been severely assailed, as being the
instrument of falsehood and fraud; but it is too well
established to be disregarded. Coop., Just. 611, n. See 8 Watts,
308, 309.
CAVIL. Sophism, subtlety. Cavilis a captious argument, by which
a conclusion evidently false, is drawn from a principle
evidently true: Ea est natura cavillationis ut ab evidenter
veris, per brevissimas mutationes disputatio, ad ea quce
evidentur falsa sunt perducatur. Dig. 60, 16, 177 et 233; Id.
17, 65; Id. 33, 2, 88 .
CAESARIAN OPERATION, med. juris. An incision made through the
parietes of the abdomen and uterus to extract the foetus. It is
said that Julius Caesar was born in this manner. When the child
is cut out after the death of the mother, his coming into being
in this way confers on other persons none of the rights to which
they would have been entitled if he had been born, in the usual
course of nature, during her life. For example, his father would
not be tenant by the curtesy; for to create that title, it ought
to begin by the birth of issue arive, and be consummated by the
death of the wife. 8 Co. Rep. 35; 2 Bl. Com. 128 Co. Litt. 29
b.; 1 Beck's Med. Jur. 264 Coop. Med. Jur. 7; 1 Fodere, Med.
Leg. §334. The rule of the civil law on this subject will be
found in Dig. lib. 50, t. 16, 1. 132 et 141; lib. 5, t. 2, 1. 6;
lib. 28, t. 2, 1. 12.
C2ETERORUM. The name of a kind of administration, which, after
an administration has been granted for a limited purpose, is
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granted for the rest of the estate. 1 Will. on Ex. 357; 2 Hagg.
62; 4 Hagg. Eccl. R. 382, 386; 4 Mann. & Gr. 398. For example,
where a wife had a right to devise or bequeath certain stock, and
she made a will of the same, but there were accumulations that
did not pass, the husband might take out letters of
administration caeterorum. 4 Mann. & Grang.398;1 Curteis, 286.
TO CEDE, civil law. To assign; to transfer; as, France ceded
Louisiana to the United States.
CEDENT, civil law, Scotch law. An assignor. The term is usually
applied to
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the assignor of a chose in action. Kames on Eq. 43.
CELEBRATION, contracts. This word is usually applied, in law,
to the celebration of marriage, which is the solemn act by which
a man and woman take each other for husband and wife, conformably
to the rules prescribed by law. Diet. de Juris. h. t.
CELL. A small room in a prison. See Dungeon.
CENOTAPH. An empty tomb. Dig. 11, 7, 42.
CENSUS. An enumeration of the inhabitants of a country.
2. For the purpose of keeping the reeresentation of the several
states in congress equal, the constitution provides, that "
representatives and direct taxes shall be apportioned among the
several states, which may be included in this Union, according to
their respective numbers; which shall be determined by adding to
the whole number of free persons, including those bound to
service for a term of years, and excluding Idians not taxed,
three-fifths of all other persons. The actual enumeration shall
be made within three years after the first meeting of the
congress of the United States, and within every subsequent term
of ten years, in such a manner as they shall by law direct." Art.
1, s. 2; vide 1 Story, L. U. S., 73, 722, 751; 2 Id. 1134,
1139, 1169, 1194; 3 Id. 1776; 4 Sharsw. continuation, 2179.
CENT, money. A copper coin of the United States of the value of
ten mills; ten of them are equal to a dime, and one hundred, to
one dollar. Each cent is required to contain one hundred and
sixty-eight grains. Act of January 18th, 1837, 4 Sharsw. cont. of
Story',s L. U. S. 2524.
CENTIME. The name of a French money; the one hundredth part of
a franc.
CENTRAL. Relating to the centre, or placed in the centre; as,
the central courts of the United States, are those located in the
city of Washington, whose jurisdiction extends over the whole
country. These are, first, the Senate of the United States, when
organized to try impeachments; secondly, the Supreme Court of
the United States.
2. The government of the United States is the central
government.
CENTUMVIRI, civil law. the citizens of Rome were distributed
into thirty-five tribes, and three persons out of each tribe were
elected judges, who were called centumviri, although they were
one hundred and five in number. They were distributed into four
different tribunals, but in certain causes called centumvirales
causas, the judgments of the four tribunals were necessary.
Vicat,.ad verb.; 3 Bl. Com. 315.
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CENTURY, civil law. One hundred. The Roman people were
dividedinto centu ries. In England they were divided into
hundreds. Vide Hundred. Century also
means one hundred years.
CEPI. A Latin word signifying I have taken. Cepicorpus, I have
taken the body; cepiand B. B., I have taken the body and
discharged him on bail bond; cepi corpus et est in custodia, I
have taken the body and it is in custody; cepi corpus, et est
languidus, I have taken the body of, &c. and he is sick. These
are some of the various returns made by the sheriff to a writ of
capias.
CEPI CORPUS, practice. The return which the sheriff, or
otherproper officer, makes when he has arrested a defendant by
virtue of a capias. 3 Bouv. Inst. n. 2804. See Capias. F. N. B.
26.
CEPIT. Took. This is a technical word, which cannot be supplied
by any other in an indictment for larceny. The charge against the
defendant must be that he took the thing stolen with a felonious
design. Bac. Ab. Indictment, G 1.
CEPIT ET ABDUXIT. He took and led away. These words are applied
to cases of trespass or larceny, where the defendant took a
living chattel, and led it away. It is used in contradistinction
to took and carried away, cepit et asportavit. (q. v.)
CEPIT ET ASPORTAVIT. Took and carried away. (q. v.)
CEPIT IN ALIO LOCO, pleadings. He took in another place. This
is a plea in replevin, by which the defendant alleges, that he
took the thing replevied in another place than that mentioned in
the plaintiff's declaration. 1 Chit. Pl. 490, 4 Bouv. Inst. n.
3569 2 Chit. Pl. 558; Rast. 554, 555; Clift. 636 Willes, R.
475; Tidd's App. 686.
CERTAINTY, UNCERTAINTY, contracts. In matters of obligation, a
thing is certain, when its essence, quality, and quantity, are
described, distinctly set forth, Dig. 12, 1, 6. It is uncertain,
when the description is not that of one individual object, but
designates only the kind. Louis. Code, art. 3522, No. 8 5 Co.
121. Certainty is the mother of repose, and therefore the law
aims at certainty. 1 Dick. 245. Act of the 27th of July, 1789,
ii. 2, 1 Story's Laws, 6. His compensation for his servicer,
shall not exceed two thousand dollars per annum. Gordon's Dig.
art. 211.
2. If a contract be so vague in its terms, that its meaning
cannot be certainly collected, and the statute of frauds preclude
the admissibility of parol evidence to clear up the difficulty;
5 Barn. & Cr. 588; S. C. 12 Eng. Com. L. R. 827; or parol
evidence cannot supply the defect, then neither at law, nor in
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equity, can effect be given to it. 1 Russ. & M. 116; 1 Ch. Pr.
123.
3. It is a maxim of law, that, that is certain which may be
made certain; certum est quod certum reddi potest Co. Litt. 43;
for example, when a man sells the oil he has in his store at so
much a gallon, although there is uncertainty as to the quantity
of oil, yet inasmuch as it can be ascertained, the maxim applies,
and the sale is good. Vide generaly, Story, Eq. El. §240 to 256;
Mitf. Pl. by Jeremy, 41; Coop. Eq. Pl. 5; Wigr. on Disc. 77.
CERTAINTY, pleading. By certainty is understood a clear and
distinct statement of the facts which constitute the cause of
action, or ground of defence, so that they may be understood by
the party who is to answer them, by the jury who are to ascertain
the truth of the allegations, and by the court who are to give
the judgment. Cowp. 682; Co. Litt. 308; 2 Bos. & Pull. 267; 13
East, R. 107; Com. Dig. Pleader, C 17; Hob. 295. Certainty has
been stated by Lord Coke, Co. Litt. 303, a, to be of three sorts
namely, 1. certainty to a common intent 2. to a certain intent in
general; and, 3. to a certain intent in every particular. In the
case of Dovaston.v. Paine Buller, J. said he remembered to have
heard Mr. Justice Ashton treat these distinctions as a jargon of
words without meaning; 2 H. Bl. 530. They have, however, long
been made, and ought not altogether to be departed from.
2. - 1. Certainty to a common intent is simply a rule of
construction. It occurs when words are used which will bear a
natural sense, and also an artificial one, or one to be made out
by argument or inference. Upon the ground of this rule the
natural sense of words is adopted, without addition. 2 H. Bl.
530.
3. - 2. Certainty to, a certain intent in general, is a greater
degree of certainty than the last, and means what upon a fair and
reasonable construction may be called certain, without recurring
to possible facts which do not appear; 9 Johns. R. 317; and is
what is required in declarations, replications, and indictments,
in the charge or accusation, and in returns to writs of mandamus.
See 1 Saund. 49, n. 1; 1 Dougl. 159; 2 Johns. Cas. 339; Cowp.
682; 2 Mass. R. 363 by some of which authorities, it would
seem, certainty to a common intent is sufficient in a
declaration.
4. - 3. The third degree of certainty, is that which precludes
all argument, inference, or presumption against the party,
pleading, and is that technical accuracy which is not liable to
the most subtle and scrupulous objections, so that it is not
merely a rule of construction, but of addition; for where this
certainty is necessary, the party must not only state the facts
of his case in the most precise way, but add to them such as show
that they are not to be controverted, and, as it were, anticipate
the case of his adversary. Lawes on Pl. 54, 55. See 1 Chitty on
Pl. 235 to 241.
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CERTIFICATE, practice. A writing made in any court, and
properly authenticated, to give notice to another court of
anything done therein; or it is a writing by which an officer or
other person bears testimony that a fact has or has not taken
place.
2. There are two kinds of certificates; those required by the
law, and those which are merely voluntary. Of the first kind are
certificates given to an insolvent of his discharge, and those
given to aliens, that they have been naturalized. Voluntary
certificates are those which are not required by law, but which
are given of the mere motion of the party. The former are
evidence of the facts therein mentioned, while the latter are not
entitled to any credit, because the facts certified, may be
proved in the usual way under the solemnity of an oath or
affirmation. 2 Com. Dig. 306; Ayl. Parerg. 157; Greenl. Ev.
§498.
CERTIFICATE, JUDGE'S, English practice. The judge who tries the
cause is authorized by several statutes in certain cases to
certify, so as to decide when the party or parties shall or shall
not be entitled to costs. It is of great importance in many
cases, that these certificates should be obtained at the time of
trial. See 3 Camp. R. 316; 5 B. & A. 796; Tidd's Pr. 879; 3
Ch. Pr.
458, 486.
2. The Lord Chancellor often requires the opinion of the judges
upon a question of law; to obtain this, a case is trained,
containing the admissions on both sides, and upon these the legal
question is stated; the case is then submitted to the judges,
who, after hearing counsel, transmit to the chancellor their
opinion. This opinion, signed by the judges of the court, is
called their certificate. See 3 Bl. Com. 453.
CERTIFICATE, ATTORNEY'S, Practice, English law. By statute 37
Geo. III., c. 90, s. 26, 28, attorneys are required to deliver to
the commissioners of stamp duties, a paper or note-in writing,
containing the name and usual place of residence of such person,
and thereupon, on paying certain duties, such person is entitled
to a certificate attesting the payment of such duties, which must
be renewed yearly. And by the 30th section, an attorney is liable
to the penalty of fifty pounds for practising without.
CERTIFICATION or CERTIFICATE OF ASSISE. A term used in the old
English law, applicable to a writ granted for the reexamination
or re-trial of a matter passed by assise before justices. F. N.
B. 181 3 Bl. Com. 389. The summary motion for a new trial has
entirely superseded the use of this writ, which was one of the
means devised by the judges to prevent a resort to the remedy by
attaint for a wrong verdict.
CERTIORARI, practice. To be certified of; to be informed of.
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This is the name of a writ issued from a superior court directed
to one of inferior jurisdiction, commanding the latter to certify
and return to the former, the record in the particular case. Bac.
Ab. h. t.; 4 Vin. Ab. 330; Nels. Ab. h. t.; Dane's Ab. Index,
h. t.; 3 Penna. R. 24. A certiorari differs from a writ of
error. There is a distinction also between a hab. corp. and a
certiorari. The certiorari removes the cause; the hab. corp.
only supersedes the proceedings in below. 2 Lord Ray. 1102.
2. By the common law, a supreme court has power to review the
proceedings of all inferior tribunals, and to pass upon their
jurisdiction and decisions on questions of law. But in general,
the determination of such inferior courts on questions of fact
are conclusive, and cannot be reversed on certiorari, unless some
statute confers the power on such supreme court. 6 Wend. 564; 10
Pick. 358; 4 Halst. 209. When any error has occurred in the
proceedings of the court below, different from the course of the
common law, in any stage of the cause, either civil or criminal
cases, the writ of certiorari is the only remedy to correct such
error, unless some other statutory remedy has been given. 5 Binn.
27; 1 Gill & John. 196; 2 Mass. R. 245; 11 Mass. R. 466; 2
Virg. Cas. 270; 3 Halst. 123; 3 Pick. 194 4 Hayw. 100; 2
Greenl. 165; 8 Greenl. 293. A certiorari, for example, is the
correct process to remove the proceedings of a court of sessions,
or of county commissioners in laying out highways. 2 Binn. 250 2
Mass. 249; 7 Mass. 158; 8 Pick. 440 13 Pick. 195; 1 Overt.
131; 2
Overt. 109; 2 Pen. 1038; 8 Verm. 271 3 Ham. 383; 2 Caines,
179.
3. Sometimes the writ of certiorari is used as auxiliary
process, in order to obtain a full return to some other process.
When, for example, the record of an inferior court is brought
before a superior court by appeal, writ of error, or other lawful
mode, and there is a manifest defect, or a suggestion of
diminution, a certiorari is awarded requiring a perfect
transcript and all papers. 3 Dall. R. 413; 3 John. R. 23; 7
Cranch, R. 288; 2 South. R. 270, 551; 1 Blackf. R. 32; 9
Wheat. R. 526; 7 Halst. R. 85; 3 Dev. R. 117; 1 Dev. & Bat.
382; 11 Mass. 414; 2 Munf. R. 229; 2 Cowen, R. 38. Vide Bouv.
Inst. Index, h. t.
CESSET EXECUTIO. The staying of an execution.
2. When a judgment has been entered, there is sometimes, by the
agreement of the parties, a cesset executio for a period of time
fixed upon and when the defendant enters security for the amount
of the judgment, there is a cesset executio until the time
allowed by law has expired.
CESSET PROCESSUS, practice. An entry made on the record that
there be a stay of the procas or proceedings.
2. This is made in cases where the plaintiff has become
insolvent after action brought. 2 Dougl. 627.
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CESSAVIT, Eng. law. An obsolete writ, which could formerly have
been sued out when the defendant had for two years ceased or
neglected to perform such service or to pay such rent as he was
bound to do by his tenure, and had not upon his lands sufficient
goods or cbattels to be distrained. F. N. B. 208.
CESSIO BONORUM, civil law. The relinquishment which a debtor
made of his property for the benefit of his creditors.
2. This exempted the debtor from imprisonment, not, however,
without leaving an ignominious stain on his reputation. Dig. 2,
4, 25; Id. 48, 19, 1; Nov. 4, c. 3, and Nov. 135. By the latter
Novel, an honest unfortunate debtor might be discharged, by
simply affirming that he was insolvent, without having recourse
to the benefit of cession. By the cession the creditors acquired
title to all the property of the insolvent debtor.
3. The cession discharged the debtor only to the extent of the
property ceded, and he remained responsible for the difference.
Dom. Lois Civ. liv. 4, tit. 5., s. 1, n. 2. Vide, for the law of
Louisiana, Code, art. 2166, et seq. 2 M. R. 112; 2 L. R. 354;
11 L. R. 531; 5 N. S. 299; 2 L. R. 39; 2 N. S. 108; 3 M. R.
232; 4 Wheat. 122; and Abandonment.
CESSION, contracts. Yielding up; release.
2. France ceded Louisiana to the United States, by the treaty
of Paris, of April 30, 1803 Spain made a cession of East and West
Florida, by the treaty of February 22, 1819. Cessions have been
severally made of a part of their territory, by New York,
Virginia, Massachusetts, Connecticut) South Carolina, North
Carolina, and Georgia. Vide Gord. Dig. art. 2236 to 2250.
CESSION, civil law. The, act by which a party assigns or
transfers property to a other; an assignment.
CESSION, eccl. law. When an ecclesiastic is created bishop, or
when a parson takes another benefice, without dispensation, the
first benefice becomes void by a legal cession, or surrender.
Cowel, h. t.
CESTUI. He. This word is frequently used in composition as,
cestui que trust, cestui que vie, &c.
CESTUI QUE TRUST, A barbarous phrase, to signify the
beneficiary of an estate held in trust. He for whose benefit
another person is enfeoffed or seised of land or tenements, or is
possessed of personal property. The cestui que trust is entitled
to receive the rents and profits of the land; he may direct such
conveyances, consistent with the trust, deed or will, as he shall
choose, and the trustee (q. v.) is bound to execute them: he may
defend his title in the name of the trustee. 1 Cruise, Dig. tit.
12, c. 4, s. 4; vide Vin. Ab. Trust, U, W, X, and Y 1 Vern. 14;
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Dane's Ab. Index, h. t.: 1 Story, Eq. Jur. §321, note 1; Bouv.
Inst. Index, h. t.
CESTUI QUE VIE. He for whose life land is holden by another
person; the latter is called tenant per auter vie, or tenant for
another's life. Vide Dane's Ab. Index, h. t.
CESTUI QUE USE. He to whose use land is granted to another
person the latter is called the terre-tenant, having in himself
the legal property and possession; yet not to his own use, but
to dispose of it according to the directions of the cestui que
use, and to suffer him to take the profits. Vide Bac. Read. on
Stat. of Uses, 303, 309, 310. 335, 349; 7 Com. Dig. 593.
CHAFEWAX, Eng, law. An officer in chancery who fits the wax for
sealing, to the writs, commissions and other. instruments then
made to be issued out. He is probably so called because he warms
(chaufe) the wax.
CHAFFERS. Anciently signified wares and merchandise; hence the
word chaffering, which is yet used for buying and selling, or
beating down the price of an article. The word is used in stat. 3
Ed. III. c. 4.
CHAIRMAN. The presiding officer of a committee; as, chairman
of the committee of ways and means. The person selected to
preside over a popular meeting, is also called a chairman or
moderator.
CHALDRON. A measure of capacity, equal to fifty-eight and
two-third cubic feet nearly. Vide Measure.
CHALLENGE. This word has several significations. 1. It is an
exception or objection to a juror. 2. A call by one person upon
another to a single combat, which is said to be a challenge to
fight.
CHALLENGE, criminal law. A request by one person to another, to
fight a duel.
2. It is a high offence at common law, and indictable, as
tending to a breach of the peace. It may be in writing or
verbally. Vide Hawk. P. C. b. 1, c. 63, s. 3; 6 East, R. 464; 8
East, R. 581; 1 Dana, R. 524; 1 South.. R. 40; 3 Wheel. Cr. C.
245 3 Rogers' Rec. 133; 2 M'Cord, R. 334 1 Hawks. R. 487; 1
Const. R. 107. He who carries a challenge is also punishable by
indictment. In most of the states, this barbarous practice is
punishable by special laws.
3. In most of the civilized nations challenging another to
fight. is a crime, as calculated to destroy the public peace;
and those who partake in the offence are generally liable to
punishment. In Spain it is punished by loss of offices, rents,
and horrors received from the king, and the delinquent is
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incapable to hold them in future. Aso & Man. Inst. B. 2, t. 19,
c. 2, §6. See, generally, 6 J. J. @larsh. 120; 1 Munf. 468; 1
Russ. on Cr. 275; 6 J. J. Marsh. 1 19; Coust. Rep. 10 7; Joy
on Chal. passim.
CHALLENGE, practice. An exception made to jurors who are to
pass on a trial;
to a judge; or to a sheriff.
2. It will be proper here to consider, 1. the several kinds of
challenges; 2. by whom they are to be made; 3. the time and
manner of making them.
3. - §1. The several kinds of challenges may be divided into
those which are peremptory, and those which are for cause. 1.
Peremptory challenges are those
'which are made without assigning any reason, and which the court
must allow. The number of these which the prisoner was allowed at
common law, in all cases of felony, was thirty-five, or one under
three full juries. This is regulated by the local statutes of the
different states, and the number except in capital cases, has
been probably reduced.
4. - 2. Challenges for cause are to the array or to the polls.
1. A challenge to the array is made on account of some defect in
making the return to the venire, and is at once an objection to
all the jurors in the panel. It is either a principal challenge,
that is, one founded on some manifest partiality, or error
committed in selecting, depositing, drawing or summoning the
jurors, by not pursuing the directions of the acts of the
legislature; or a challenge for favor.
5. - 2. A challenge to the polls is objection made separately
to each juror as he is about to be sworn. Challenges to the
polls, like those to the array, are either principal or to the
favor.
6. First, principal challenges may be made on various grounds:
1st. propter defectum, on account of some personal objection, as
alienage, infancy, old age, or the want of those qualifications
required by legislative enactment. 2d. Propter affectum, because
of some presumed or actual partiality in the juryman who is made
the subject of the objection; on this ground a juror may be
objected to, if he is related to either within the ninth degree,
or is so connected by affinity; this is supposed to bias the
juror's mind, and is only a presumption of partiality. Coxe, 446;
6 Greenl. 307; 3 Day, 491. A juror who has conscientious
scruples in finding a verdict in a capital case, may be
challenged. 1 Bald. 78. Much stronger is the reason for this
challenge, where the juryman has expressed his wishes as to the
result of the trial, or his opinion of the guilt or innocence of
the defendant. 4 Harg. St. Tr. 748; Hawk. b. 2, c. 43, s. 28;
Bac. Ab. Juries, E 5. And the smallest degree of interest in the
matter to be tried is a decisive objection against a juror. 1
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Bay, 229; 8 S. & R. 444; 2 Tyler, 401. But see 5 Mass. 90. 3d.
The third ground of principal challenge to the polls, is propter
delictum, or the legal incompetency of the juror on the ground of
infamy. The court, when satisfied from their own examination,
decide as to the principal challenges to the polls, without any
further investigation and there is no occasion for the
appointment of triers. Co. Litt. 157, b; Bac. Ab. Juries, E 12;
8 Watts. R. 304.
7. - Secondly. Challenges to the poll for favor may be made,
when, although the juror is not so evidently partial that his
supposed bias will be sufficient to authorize. a principal
challenge, yet there are reasonable grounds to suspect that he
will act under some undue influence or prejudice. The causes for
such cballenge are manifestly very numerous, and depend, on a
variety of circumstances. The fact to be ascertained is, whether
the juryman is altogether indifferent as he stands unsworn,
because, even unconsciously to himself, be may be swayed to one
side. The line whicb separates the causes for principal
challenges, and for challenge to the favor, is not very
distinctly marked. That the juror has acted as godfather to the
child of the prosecutor or defendant, is cause for a principal
cballenge; Co. Litt. 157, a; while the fact that the party and
the juryman are fellow servants, and that the latter has been
entertained at the house of the former, is only cause for
challenge to the favor. Co. Litt. 147; Bac. Ab. Juries, E 5.
Challenges to the favor are not decided upon by the court, but
are settled by triers. (q. v.)
8. - §2. The challenges may be made by the government, or those
who represent it, or by the defendant, in criminal cases; or
they may be made by either party in civil cases.
9. - §3. As to the time of making the challenge, it is to be
observed that it is a general rule, that no challenge can be made
either to the array or to the polls, until a full jury have made
their appearance, because if that should be the case, the issue
will remain pro defectu juratorum; and on this account, the
party who intends to challenge the array, may, under such a
contingency, pray a tales to complete the number, and then object
to the panel. The proper time, of challenging, is between the
appearance and the swearing of the jurors. The order of making
challenges is to the array first, and should not that be
supported, then to the polls; challenging any one juror, waives
the right of challenging the array. Co. Litt. 158, a; Bac. Ab.
Juries, E 11. The proper manner of making the challenge, is to
state all the objections against the jurors at one time; and the
party will not be allowed to make a second objection to the same
juror, when the first has been over-ruled. But when a juror has
been challenged on one side, and found indifferent, he may still
be challenged on the other. When the juror has been cliallenged
for cause, and been pronounced impartial, he may still be
challenged peremptorily. 6 T. R. 531; 4 Bl. Com. 356; Hawk. b.
2, c. 46, s. 10.
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10. As to the mode of making the challenge, the rule is, that a
challenge to the array must be in writing; but when it is only
to a single individual, the words " I challenge him " are
sufficient in a civil case, or on the part of the defendant, in a
criminal case when the challenge is made for the prosecution, the
attorney-general says, We challenge him." 4 Harg. St. Tr. 740 Tr.
per Pais, 172; and see Cro. C. 105; 2 Lil. Entr. 472; 10
Wentw. 474; 1 Chit. Cr. Law, 533 to 551.
11. Interest forms the only ground at common law for
challenging a judge. It is no ground of challenge that he has
given an opinion in the case before. 4 Bin. 349; 2 Bin. 454. By
statute, there are in some states several other grounds of
challenge. See Courts of the U. S., 633 64.
12. The sheriff may be challenged for favor as well as
affinity. Co. Litt. 158, a; 10 Serg. &. R. 336-7. And the
challenge need not be made to the court, but only to the
prothonotary. Yet the Sheriff cannot be passed by in the
direction of process without cause, as he is the proper officer
to execute writs, except in case of partiality. Yet if process be
directed to the coroner without cause, it is not void. He cannot
dispute the authority of the court, but must execute it at his
peril, and the misdirection is aided by thc statutes of
amendment. 11 Serg. & R. 303.
CHAMBER. A room in a house.
2. It was formerly hold that no freehold estate could be had in
a chamber, but it was afterwards ruled otherwise. When a chamber
belongs to one person, and the rest of the house with the land is
owned by another the two estates are considered as two separate
but adjoining dwelling house's. Co. Litt. 48, b; Bro. Ab.
Demand, 20; 4 Mass. 575; 6 N. H. Rep. 555; 9 Pick. R. 297;
vide 3 Leon. 210; 3 Watts. R. 243.
3 . By chamber is also understood the place where an assembly
is held; and, by the use of a figure, the assembly itself is
called a chamber.
CHAMBER OF C0MMERCE. A society of the principal merchants and
traders of a city, who meet to promote the general trade and
commerce of the place. Some of these are incorporated, as in
Philadelphia.
CHAMBERS, practice. When a judge decides some interlocutory
matter, which has arisen in the course of the cause, out of
court, he is said to make such decision at his chambers. The most
usual applications at chambers take place in relation to taking
bail, and staying proceedings on process.
CHAMPART, French law. By this name was formerly understood the
grant of a piece of land by the owner to another, on condition
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that the latter would deliver to him a portion of the crops. IS
Toull. n. 182.
CHAMPERTOR, crim. law. One who makes pleas or suits, or causes
them to be moved, either directly or indirectly, and sues them at
his proper costs, upon condition of having a part of the gain.
CHAMPERTY, crimes. A bargain with a plaintiff or defendant,
campum partire, to divide the land or other matter sued for
between them, if they prevail at law, the champertor undertaking
to carry on the suit at his own expense. 1 Pick. 416; 1 Ham.
132; 5 Monr. 416; 4 Litt. 117; 5 John. Ch. R. 44; 7 Port. R.
488.
2. This offence differs from maintenance, in this, that in the
latter the person assisting the suitor receives no benefit, while
in the former he receives one half, or other portion, of the
thing sued for. See Punishment; Fine; Imprisonment; 4 Bl. Com.
135.
3. This was an offence in the civil law. Poth. Pand. lib. 3, t.
1; App. n. 1, tom. 3, p. 104; 15 Ves. 139; 7 Bligh's R. 369;
S. C. 20 E. C. L. R. 165; 5 Moore & P. 193; 6 Carr. & P. 749;
S. C. 25 E. C. L. R. 631; 1 -Russ. Cr. 179 Hawk. P. C. b. 1 c.
84, s. 5.
4. To maintan a defendant may be champerty. Hawk. P. C. b. 1,
c. 84, s. 8 3 Ham. 541; 6 Monr. 392; 8 Yerg. 484; 8 John. 479;
1 John. Ch. R. 444;, 7 Wend. 152; 3 Cowen, 624; 6 Co@ven, 90.
CHAMPION. He who fights for another, or takes his place in a
quarrel; it also includes him who fights his own battles. Bract.
lib. 4, t. 2, c. 12.
CHANCE, accident. As the law punishes a crime only when there
is an intention to commit it, it follows that when those acts are
done in a lawful business or pursuit by mere chance or accident,
which would have been criminal if there had been an intention,
express or implied, to commit them, there is no crime. For
example, if workmen were employed in blasting rocks in a retired
field, and a person not knowing of the circumstance should enter
the field, and be killed by a piece of the rock, there would be
no guilt in the workmen. 1 East, P. C. 262 Poster, 262; 1 Hale's
P. C. 472; 4 Bl. Com. 192. Vide Accident.
CHANCE-MEDLEY, criminal law. A sudden affray. This word is
sometimes applied to any kind of homicide by misadventure, but in
strictness it is applicable to such killing only as happens se
defendendo. (q. v.) 4 Bl. Com. 184.
CHANCELLOR. An officer appointed to preside over a court of
chancery, invested with various powers in the several states.
2. The office of chancellor is of Roman origin. He appears, at
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first, to have been a chief scribe or secretary, but he was
afterwards invested with judicial power, and had superintendence
over the other officers of the empire. From the Romans, the title
and office passed to the church, and therefore every bishop of
the catholic church has, to this day, his chancellor, the
principal judge of his consistory. When the modern kingdoms of
Europe were established upon the ruins of the empire, almost
every state preserved its chancellor, with different
jurisdictions and dignities, according to their different
constitutions. In all he seems to have had a supervision of all
charters, letters, and such other public instruments of the
crown, as were authenticated in the most solemn manner; and when
seals came into use, he had the custody of the public seal.
3. An officer bearing this title is to be found in most
countries of Europe, and is generally invested with extensive
authority. The title and office of chancellor came to us from
England. Many of our state constitutions provide for the
appointment of this officer, who is by them, and by the law of
the several states, invested with power as they provide. Vide
Encyclopedie, b. t.; Encycl.. Amer. h. t.; Dict. de Jur. h. t.;
Merl. Rep. h. t.; 4 Vin. Ab. 374; Blake's Ch. Index, h. t.;
Woodes. Lect. 95.
CHANCERY. The name of a court exercising jurisdiction at law,
but mainly
in equity.
2. It is not easy to determine how courts of equity originally
obtained the jurisdiction they now exercise. Their authority, and
the extent of it, have been subjects of much question, but time
has firmly established them; and the limits of their
jurisdiction seem to be in a great degree fixed and ascertained.
1 Story on Eq. ch. 2; Mitf. Pl. Introd.; Coop. Eq. Pl. Introd.
See also Butler's Reminiscences, 38, 40; 3 Bl. Com. 435; 2 Bin.
135; 4 Bin. 50; 6 Bin. 162; 2 Serg. & R. 356; 9 Serg. & R.
315; for the necessity, origin and use of courts of chancery.
3. The judge of the court of chancery, often called a court of
equity, bears the title of chancellor. The equity jurisdiction,
in England, is vested, principally, in the high court of
chancery. This court is distinct from courts of law. " American
courts of equity are, in some instances, distinct from those of
law, in others, the same tribunals exercise the jurisdiction both
of courts of law and equity, though their forms of proceeding are
different in their two capacities. The supreme court of the
United States, and the circuit courts, are invested with general
equity powers, and act either as court's of law or equity,
according to the form of the process and the subject of
adjudication. In some of the states, as New York, Virginia, and
South Carolina, the equity court is a distinct tribunal, having
its appropriate judge, or chancellor, and officers. In most of
the states, the two jurisdictions centre in the same judicial
officers, as in the courts of the United States; and the extent
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of equity jurisdiction and proceedings is very various in the
different states, being very ample in Connecticut, New York, New
Jersey, Maryland, Virginia, and South Carolina, and more
restricted in Maine, Massachusetts, Rhode Island, and
Pennsylvania. But the salutary influence of these powers on the
judicial administration generally, by the adaptation of cbancery
forms and modes of proceeding to many cases in which a court of
law affords but an imperfect remedy, or no remedy at all, is
producing a gradual extension of them in those states where they
have been, heretofore, very limited."
4. The jurisdiction of a court of equity differs essentially
from that of a court of law. The remedies for wrongs, or for the
enforcement of rights, may be distinguished into two classes
those which are administered in courts of law, and those which
are administered in courts of equity. The rights secured by the
former are called legal; those secured by the latter are called
equitable. The former are said to be rights and remedies at
common law, because recognized and enforced in courts of common
law. The latter are said to be rights and remedies in equity,
because they are administered in courts of equity or chancery, or
by proceedings in other courts analogous to those in courts of
equity or chancery. Now, in England and America, courts of common
law proceed by certain prescribed forms, and give a general
judgment for or against the defendant. They entertain
jurisdiction only in certain actions, and give remedies according
to the particular exigency of such actions. But there are many
cases in which a simple judgment for either party, without
qualifications and conditions, and particular arrangements, will
not. do entire justice, ex aequo et bono, to either party. Some
modification of the rights of both parties is required; some
restraints on one side or the other; and some peculiar
adjustments, either present or future, temporary or perpetual.
Now, in all these cases, courts of common law have no methods of
proceeding, which can accomplish such objects. Their forms of
actions and judgment are not adapted to them. The proper remedy
cannot be found, or cannot be administered to the full extent of
the relative rights of all parties. Such prescribed forms of
actions are not confined to our law. They were known in the civil
law; and the party could apply them only to their original
purposes. In other cases, he had a special remedy. In such cases,
where the courts of common law cannot grant the proper remedy or
relief, the law of England and of the United States (in those
states where equity is administered) authorizes an application to
the courts of equity or chancery, which are not confined or
limited in their modes of relief by such narrow regulations, but
which grant relief to all parties, in cases where they have
rights, ex aequo et bono, and modify and fashion that relief
according to circumstances. The most general description of a
court of equity is, that it has jurisdiction in cases where a
plain, adequate and complete remedy cannot be had at law that is,
in common law courts. The remedy must be plain; for, if it be
doubtful and obscure at law, equity will assert a jurisdiction.
So it must be adequate at law; for, if it fall short of what the
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party is entitled to, that founds a jurisdiction in equity. And
it must be complete; that is, it must attain its full end at law
it must reach the whole mischief and secure the whole right of
the party, now and for the future otherwise equity will
interpose, and give relief. The jurisdiction of a court of equity
is sometimes concurrent with that of courts of, law and sometimes
it is exclusive. It exercises concurrent jurisdiction in cases
where the rights are purely of a legal nature, but where other
and more efficient aid is required than a court of law can
afford, to meet the difficulties of the case, and ensure full
redress. In some of these cases courts of law formerly refused
all redress but now will grant it. But the jurisdiction having
been once justly acquired at a time when there was no such
redress at law, it is not now relinquished. The most common
exercise of concurrent jurisdiction is in cases of account,
accident, dower, fraud, mistake, partnership, and partition. The
remedy is here often more complete and effectual than it can be
at law. In many cases falling under these heads, and especially
in some cases of fraud, mistake and accident, courts of law
cannot and do not afford any redress; in others they do, but not
always in so perfect a manner. A court of equity also is
assistant to the jurisdiction of courts of law, in many cases,
where the latter have no like authority. It will remove legal
impediments to the fair decisiou of a question depending at law.
It will prevent a party from improperly setting up, at a trial,
some title or claim, which would be inequitable. It will compel
him to discover, on his own oath, facts which he knows are
material to the rights of the other party, but which a court of
law cannot compel the party to discover. It will perpetuate the
testmony of witnesses to rights and titles, which are in danger
of being lost, before the, matter can be tried. It will provide
for the safety of property in dispute pending litigation. It will
counteract and control, or set aside, fraudulent judgments. It
will exercise, in many cases, an exclusive jurisdiction. This it
does in all cases of morely equitable rights, that is, such
rights as are not recognized in courts of law. Most cases of
trust and confidence fall under this head. Its exclusive
jurisdiction is also extensively exercised in granting special
relief beyond the reach of the common law. It will grant
injunctions to prevent waste, or irreparable injury, or to secure
a settled right, or to prevent vexatious litigations, or to
compel the restitution of title deeds; it will appoint receivers
of property, where it is in danger of misapplication it will
compel the surrender of securities improperly obtained; it will
prohibit a party from leaving the country in order to avoid a
suit it will restrain any undue exercise of a legal right,
against conscience and equity; it will decree a specific
performance of contracts respecting real estates; it will, in
many cases, supply the imperfect execution of instruments, and
reform and alter them according to the real intention of the
parties; it will grant relief in cases of lost deeds or
securities; and, in all cases in which its interference is
asked, its general rule is, that he who asks equity must do
equity. If a party, therefore, should ask to have a bond for a
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usurious debt given up, equity could not decree it, unless he
could bring into court the money honestly due without usury. This
is a very general and imperfect outline of the jurisdiction of a
court of equity; in respect to which it has been justly
remarked, that, in matters within its exclusive jurisdiction,
where substantial justice entitles the party to relief, but the
positive law is silent, it is impossible to define the boundaries
of that jurisdiction, or to enumerate, with precision, its
various principles." Ency. Am. art. Equity. Vide Fonb. Eq.;
Story on Eq.; Madd. Ch. Pr.; 10 Amer. Jur. 227; Coop. Eq. Pl.;
Redesd. Pl.; Newl. Cb. Practice; Beame's Pl. Eq.; Jeremy on
Eq.; Encycl. Amer. article Equity, Court.
CHANGE. The exchange of money for money. The giving, for
example, dollars for eagles, dimes for dollars, cents for dimes.
This is a contract which always takes place in the same place. By
change is also understood small money. Poth. Contr. de Change, n.
1.
CHANGE TICKET. The name given in Arkansas to a species of
promissory notes issued for the purpose of making change in small
transactions. Ark. Rev. Stat. cb. 24.
CHAPLAIN. A clergyman appointed to say prayers and perform
divine service. Each house of congress usually appoints it own
cbaplain.
CHAPMAN. One whose business is to buy and sell goods or other
things. 2 Bl.
Com. 476.
CHAPTER, eccl. law. A congregation of clergymen. Such an
assembly is termed capitulum, which signifies a little head it
being a kind of head, not only to govern the diocese in the
vacation of the bishopric, but also for other purposes. Co. Litt.
103.
CHARACTER, evidence. The opinion generally entertained of a
person derived from the common re 'port of the people who are
acquainted with him. 3 Serg. & R. 336; 3 Mass. 192; 3 Esp. C.
236.
2. There are three classes of cases on which the moral
character and conduct of a person in society may be used in proof
before a jury, each resting upon particular and distinct grounds.
Such evidence is admissible, 1st. To afford a presumption that a
particular party has not been guilty of a criminal act. 2d. To
affect the damages in particular cases, where their amount
depends on the character and conduct of any individual; and, 3d.
To impeach or confirm the veracity of a witness.
3. - 1. Where the guilt of an accused party is doubtful, and
the character of the supposed agent is involved in the question,
a presumption of innocence arises from his former conduct in
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society, as evidenced by his general character, since it is not
probable that a person of known probity and humanity, would
commit a dislionest or outrageous act in the particular instance.
Such presumptions, however, are so remote from fact, and it is
frequently so difficult to estimate a person's real character,
that they 20are entitled to little-weight, except in doubtful
cases. Since the law considers a presumption of this nature to be
admissible, it is in principle admissible 'Whenever a reasonable
presumption arises from it, as to the fact in question; in
practice it is admitted whenever the character of the party is
involved in the issue. See 2 St. Tr. 1038 1 Coxes Rep. 424; 5
Serg. & R. 352 3 Bibb, R. 195; 2 Bibb, R. 286; 5 Day, R. 260;
5 Esp. C. 13; 3 Camp. C. 519; 1 Camp. C. 460; Str. R. 925.
Tha. Cr. Cas. 230; 5 Port. 382.
4. - 2. In some instances evidence in disparagement of
character is admissible, not in order to prove or disprove the
commission of a particular fact, but with a view to damages. In
actions for criminal conversation with the plaintiff's wife,
evidence may be given of the wife's general bad character, for
want of chastity, and even of particular acts of adultery
committed by her, previous to her intercourse with the defendant.
B. N. P. 27, 296; 12 Mod. 232; 3 Esp. C. 236. See 5 Munf. 10.
In actions for slander and libel, when the defendant has not
justified, evidence of the plaintiff's bad character has also
been admitted. 3 Camp. C. 251; 1 M. & S. 284; 2 Esp. C. 720; 2
Nott & M'Cord, 511; 1 Nott & M'Cord, 268; and see 11 Johns. R.
38; 1 Root, R. 449; 1 Johns. R. 46; 6 Penna. St. Rep. 170. The
ground of admitting such evidence is, that a person of disparaged
fame is not entitled to the same measure of damages with one
whose character is uublemished. When, however, the defendant
justifies the slander, it seems to be doubtful whether the
evidence of reports as to the conduct and character of the
plaintiff can be received. See 1 M. & S. 286, n (a) 3 Mass. R.
553 1 Pick. R. 19. When evidence is admitted touching the general
character of a party, it is manifest that it is to be confined to
matters in reference to the nature of the, charge against him. 2
Wend. 352.
5. - 3. The party against whom a witness is called, may
disprove the fact& stated by him, or may examine other witnesses
as to his general character; but they will not be allowed to
speak of particular facts or parts of his conduct. B. N. P. 296.
For example, evidence of the general character of a prosecutrix
for a rape, may be given, as that she was a street walker; but
evidence of specific acts of criminality cannot be admitted. 3
Carr. & P. 589. The regular
mode is to inquire whether the witness under examination has the
means of knowing the former witness general character, and
whether from such knowledge he would believe, him on his oath. 4
St. Tr. 693; 4 Esp. C. 102. In answer to such evidence against
character, the other party may cross-examine the witness as to
his means of knowledge, and the grounds of his opinion; or he
may attack such witness general character, and by fresh evidence
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support the character of his own. 2 Stark. C. 151; Id. 241; St.
Ev. pt. 4, 1753 to 1758; 1 Phil. Ev. 229. A party cannot give
evidence to confirm the good character of a witness, unless his
general character has been impugned by his antagonist. 9 Watts,
R. 124. See, in general, as to character, Phil. Ev. Index, tit.
Character; Stark. Ev. pl. 4, 364 Swift's Ev. 140 to 144 5 Ohio
R. 227; Greenl. Ev. §54; 3 Hill, R. 178 Bouv. Inst. Index, h.
t.
CHARGE, practice. The opinion expressed by the court to the
jury, on the law
arising out of a case before them.
2. It should contain a clear and explicit exposition of the
law, when the points of the law in dispute arise out of the facts
proved on the trial of the cause; 10 Pet. 657; but the court
ought at no time to undertake to decide the facts, for these are
to be decided by the jury. 4 Rawle's R. 195; 2 Penna. R. 27; 4
Rawle's R. 356 Id. 100; 2 Serg. & Rawle, 464; 1 Serg. & Rawle,
515; 8 Serg. & Rawle, 150. See 3 Cranch, 298; 6 Pet. 622 1
Gall. R. 53; 5 Cranch, 187; 2 Pet. 625; 9 Pet. 541.
CHARGE, contracts. An obligation entered into by the owner of
an estate which makes the estate responsible for its performance.
Vide 2 Ball & Beatty, 223; 8 Com. Dig. 306, Appendix, h. t. Any
obligation binding upon him who enters into it, which may be
removed or taken away by a discharge. T. de la Ley, h. t.
2. That particular kind of commission which one undertakes to
perform for another, in keeping the custody of his goods, is
called a charge.
CHARGE. wills, devises. An obligation which a testator imposes
on his devisee; as, if the testator give Peter, Blackacre, and
direct that he shall pay to John during his life an annuity of
one hundred dollars, which shall be a charge" on said land; or
if a legacy be and directed to be paid out of the real property.
1 Rop. Leg. 446. Vide 4 Vin. Ab. 449; 1 Supp. to Ves. jr. 309;
2 Id. 31; 1 Vern. 45, 411; 1 Swanst. 28; 4 East, R. 501; 4
Ves. jr. 815; Domat, Loix Civ. liv. 3, t. 1, s. 8, n.
CHARGE' DES AFFAIRES or CHARGE' D'AFFAIRES, internationat law.
These phrases, the first of which is used in the acts of
congress, are synonymous.
2. The officer who bear; this title is a diplomatic
representative or minister of an inferior grade, to whose care
are confided the affairs of his nation. He has not the title of
minister, and is generally introduced and admitted through a
verbal presentation of the minister, at his departure, or through
letters of credence addressed to the minister of state of the
court to which they are sent. He has the essential rights of a
minister. Mart. Law of Nat. 206; 1 Kent, Com. 39, n.; 4 Dall.
321.
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3. The president is authorized to allow to any, charge des
affaires a sum not greater than at the rate of four thousand five
hundred dollars per annum, as a compensation for his personal
services and expenses. Act of May 1, 1810, 2 Story's Laws U. S.
1171.
CHARGER, Scotch law. He in whose favor a decree suspended is
pronounced; vet a decree may be suspended before a charge is
given on it. Ersk. Pr. L. Scot.
4, 3, 7.
CHARGES. The term charges signifies the expenses which have
been incurred in relation either to a transaction or to a suit;
as the charges incurred for his benefit must be paid by a hirer;
the defendant must pay the charges of a suit. The term charges,
in relation to actions, includes something more than the costs,
technically called.
CHARITY. In its widest sense it denotes all the good affections
which men ought to bear towards each other; 1 Epistle to Cor. c.
xiii.; in its most restricted and usual sense, it signifies
relief to the poor. This species of charity is a mere moral duty,
which cannot be enforced by the law. Kames on Eq. 17. But it is
not employed in either of these senses in law; its signification
is derived chiefly from the statute of 43 Eliz. c. 4. Those
purposes are considered charitable which are enumerated in that
act, or which by analogy are deemed within its spirit and
intendment. 9 Ves. 405; 10 Ves, 541; 2 Vern. 387; Shelf.
Mortm. 59. Lord Chancellor Camden describes a charity to be a
gift to a general public use, which extends to the rich as well
as to the poor. Ambl. 651; Boyle on Charities, 51; 2 Ves. sen.
52; Ambl. 713; 2 Ves. jr. 272; 6 Ves. 404; 3 Rawle, 170; 1
Penna. R. 49 2 Dana, 170; 2 Pet. 584; 3 Pet. 99, 498 9 Cow.
481; 1 Hawks, 96; 12 Mass. 537; 17 S. & R. 88; 7 Verm. 241;
5 Harr. & John. 392; 6 Harr. & John. 1; 9 Pet. 566; 6 Pet.
435; 9 C-ranch, 331; 4 Wheat. 1; 9 Wend. 394; 2 N. H. Rep.
21, 510; 9 Cow. 437; 7 John. Cb. R. 292; 3 Leigh. 450; 1 Dev.
Eq. Rep. 276; 4 Bouv. Inst. n. 3976, et seq.
CHARRE OF LEAD, Eng. law, commerce. A quantity of lead
consisting of thirty pigs, each pig containing six stones wanting
two pounds, and every stone being
twelve pounds. Jacob.
CHARTA. An ancient word which signified not only a charter or
deed in writing, but any signal or token by which an estate was
held.
CHARTA CHYROGRAPIHATA VEL COMMUNIS. Signifies an indenture.
Shep. Touch. 50; Beames, Glanv. 197-8; Fleta, lib. 3, c. 14,
§3. It was so called, because each
party had a part.
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CHARTA DE UNA PARTE. A deed of one part; a deed poll.
2. Formerly, this phrase was used to distinguish, a deed poll,
which is an agreement made by one party only, that is, only one
of the parties does any act which is binding upon him, from a
deed inter partes. Co. Litt. 229. Vide Deed poll; Indenture;
Inter partes.
CHARTER. A grant made by the sovereign either to the whole
people or to a portion of them, securing to them the enjoyment of
certain rights. Of the former kind is the late charter of France,
which extended to the whole country; the charters which were
granted to the different American colonies by the British
government were charters of the latter species. 1 Story, Const.
L. §161; 1 Bl. Com. 108 Encycl. Amer. Charte Constitutionelle.
2. A charter differs from a CONSTITUTION in this, that the
former is granted by the sovereign, while the latter is
established by the people themselves : both are the fundamental
law of the land.
3. This term is susceptible of another signification. During
the middle ages almost every document was called carta, charta,
or chartula. In this sense the term is nearly synonymous with
deed. Co. Litt. 6; 1 Co. 1; Moor. Cas. 687.
4. The act of the legislature creating a corporation, is called
its charter. Vide 3 Bro. Civ. and Adm. Law, 188; Dane's Ab. h.
t.
CHARTER, mar. contr. An agreement by which a vessel is hired by
the owner to
another; as A B chartered the ship Benjamin Franklin to C D.
CHARTER-LAND, Eng. law. Land formerly held by deed under
certain rents and free services, and it differed in nothing from
free socage land. It was also called bookland. 2 Bl. Com. 90.
CHARTER-PARTY, contracts. A contract of affreightment in
writing, by which the owner of a ship or other vessel lets the
whole, or a part of her, to a merchant or other person for the
conveyance of goods, on a particular voyage, in consideration of
the payment of freight. This term is derived from the fact, that
the contract which bears this name, was formerly written on a
card, and afterwards the card was cut into two parts from top to
bottom, and one part was delivered to each of the parties, which
was produced when required, and by this means counterfeits were
prevented.
2. This instrument ought to contain, 1. the name and tonnage of
the vessel; 2. the name of the captain; 3. the names of the
letter to freight and the freighter; 4. the place and time
agreed upon for the loading and discharge; 5. the price of the
freight; 6. the demurrage or indemnity in case of delay; 7.
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such other conditions as the parties may agree upon. Abbott on
Ship. pt. 3, c. 1, s. 1 to 6; Poth. h. t. n. 4; Pardessus, Dr.
Coin. pt. 4, t. 4, c. 1, n. 708.
3. When a ship is chartered, this instrument serves to
authenticate many of the facts on which the proof of her
neutrality must rest, and should therefore be always found on
board chartered ships. 1 Marsh. Ins. 407 . When the goods of
several merchants unconnected with each other, are laden on board
without may particular contract of affreightment with any
individual for the entire ship; the vessel is called a general
ship, (q. v.) because open to all merchauts. but where one Or
more merchants contract for the ship exclusively, it is said to
be a chartered ship. 3 Kent, Com. 158. Abbott, Ship. pt. 2, c. 2,
S. 1 Harr. Dig. Ship and Shipping, iv.
CHARTERED SHIP. When a ship is hired or freighted by one or
more merchants for a particular voyage or on time, it is called a
chartered ship. It is freighted by a special contract of
affreightment, executed between the owners, ship's husband, or
master on the one hand, and the merchants on the other. It
differs, from a general ship. (q. v.)
CHARTIS REDDENDIS, Eng. law. An ancient writ, now obsolete,
which lays against one who had charters of feoffment entrusted to
his keeping, and who refused to deliver them. Reg. Orig. 159.
CHASE, Eng. law. The liberty of keeping beasts of chase, or
royal gaine, on another man's ground as well as on one's own
ground, protected even from the owner of the land, with a power
of hunting them thereon. It differs from a park, because it may
be on another's ground, and because it is not enclosed. 2 Bl.
Com. 38.
CHASE, property. The act of acquiring possession of animals
ferae naturae by force, cunning or address. The hunter acquires a
right to such animals by occupancy, and they become his property.
4 Toull. n. 7. No man has a right to enter on the lands o