2.
Common is of four sorts; of pasture, piscary, turbary and estovers.
Finch's Law, 157; Co. Litt. 122; 2 Inst. 86; 2 Bl. Com. 32.
3.
- 1. Common of pasture is a right of feeding one's beasts on another's
land, and is either appendant, appurtenant, or in gross.
4.
Common appendant is of common right, and it may be claimed in pleading
as appendant, without laying a prescription. Hargr. note to 2 Inst. 122,
a note.
5.
Rights of common appurtenant to the claimant's land are altogether
independent of the tenure, and do not arise from any absolute necessity;
but may be annexed to lands in other lordships, or extended to other
beasts besides. such as are generally commonable.
6.
Common in gross, or at large, is such as is neither appendant nor
appurtenant to land, but is annexed to a man's person. All these species
of pasturable common, may be and usually are limited to number and
time; but there are also commons without stint, which last all the year.
2 Bl. Com. 34.
7. - 2. Common of piscary is the liberty of fishing in another man's water. lb. See Fishery.
8. - 3. Common of turbary is the liberty of digging turf in another man's ground. Ib.
9.-4.
Common of estovers is the liberty of taking necessary wood-for the use
or furniture of a house or farm from another man's estate. Ib.; 10 Wend.
R. 639. See Estovers.
10.
The right of common is little known in the United States, yet there are
some regulations to be found in relation to this subject. The
constitution of Illinois provides for the continuance of certain commons
in that state. Const. art. 8, s. 8.
11.
All unappropriated lands on the Chesapeake Bay, on the Shore of the
sea, or of any river or creek, and the bed of any river or creek, in the
eastern parts of the commonwealth, ungranted and used as common, it is
declared by statute in Virginia, shall remain so, and not be subject to
grant. 1 Virg. Rev. C. 142.
12.
In most of the cities and towns in the United States, there are
considerable tracts of land appropriated to public use. These commons
were generally laid out with the cities or towns where they are found,
either by the original proprietors or by the early inhabitants. Vide 2
Pick. Rep. 475; 12 S. & R. 32; 2 Dane's. Ab. 610; 14 Mass. R. 440; 6
Verm. 355. See, in general, Vin. Abr. Common; Bac. Abr. Common; Com.
Dig. Common; Stark. Ev. part 4, p. 383; Cruise on Real Property, h. t.;
Metc. & Perk. Dig. Common, and Common lands and General fields.
COMMON APPENDANT,
Eng. law. A right attached to arable land, and is an incident of
tenure, and supposed to have originated by grant of the lord or owner of
a manor or waste, in consideration of certain rents or services, or
other value, to a freeholder or copyholder of plough land, and at the
same time either expressly or by implication, and as of common right and
necessity common appendant over his other wastes and commons. Co. Litt.
122 a; Willis, 222.
COMMON APPURTENANT,
Eng. law. A right granted by deed, by the owner of waste or other land,
to another person, owner of other land, to have his cattle, or a
particular description of cattle; levant and couchant upon the land, at
certain seasons of the year, or at all times of the year. An
uninterrupted usage for twenty years, is evidence of a grant. 15 East,
116.
COMMON ASSURANCES.
Title by deeds are so called, because, it is said, every man ' s estate
is assured to him; these deed's or instruments operate either as
conveyances or as charges.
2.-
1. Deeds of conveyance are, first, at common law, and include
feoffments, gifts, grants, leases, exchanges, partition's, releases,
confirmations, surrenders, assignments, and defeasances; secondly, deeds
of conveyance under the statute of uses, as covenants to stand seised
to uses, bargains and sale, lease and release, deeds to lead or declare
uses, and deeds of appointment and revocation.
3.
- 2. Deeds which do not convoy, but only charge or discharge lands, are
obligations, recognizances, and defeasances. Vide Assurance; Deed.
COMMON BAIL.
The formal entry of fictitious sureties in the proper office of the
court, which is called filing common bail to the action. See Bail.
COMMON BAR,
pleading. A plea to compel the plaintiff to assign the particular place
where the trespass has been Committed. Steph. Pl. 256. It i's
sometime's called a blank bar. (q. v.)
COMMON BENCH,
bancus communis. The court of common pleas was anciently called common
bench, because the pleas and controversies there determined were between
common persons. See Bench.
COMMON CARRIER,
contracts. One who undertakes for hire or reward to transport the goods
of any who may choose to employ him, from place to place. 1 Pick. 50,
53; 1 Salk. 249, 250; Story, Bailm. 495 1 Bouv. Inst. n. 1020.
2.
Common carriers are generally of two descriptions, namely, carriers by
land and carriers by water. Of the former description are the
proprietors of stage coaches, stage wagons or expresses, which ply
between different places, and' carry goods for hire; and truckmen,
teamsters, cartmen, and porters, who undertake to carry goods for hire,
as a common employment, from one part of a town or city to another, are
also considered as common carriers. Carriers by water are the masters
and owners of ships and steamboats engaged in the transportation of
goods for persons generally, for hire and lightermen, hoymen,
barge-owners, ferrymen, canal boatmen, and others employed in like
manner, are so considered.
3.
By the common law, a common carrier is generally liable for all losses
which may occur to property entrusted to his charge in the course of
business, unless he can prove the loss happened in consequence of the
act of God, or of the enemies of the United States, or by the act of the
owner of the property. 8 S. & R. 533; 6 John. R. 160; 11 John. R.
107; 4 N. H. Rep. 304; Harp. R. 469; Peck. R. 270; 7 Yerg. R. 340; 3
Munf. R. 239; 1 Conn. R. 487; 1 Dev. & Bat. 273; 2 Bail. Rep. 157.
4.
It was attempted to relax the rigor of the common law in relation to
carriers by water, in 6 Cowen, 266; but that case seems to be at
variance with other decisions. 2 Kent,. Com. 471, 472; 10 Johns. 1; 11
Johns. 107.
5.
In respect to carriers by land, the rule of the common law seems every
where admitted in its full rigor in the states governed by the
jurisprudence of the common law. Louisiana follows the doctrine of the
civil law in her code. Proprietors of stage coaches or wagons, whose
employment is solely% to carry passengers, as hackney coachmen, are not
deemed common carriers; but if the proprietors of such vehicles for
passengers, also carry goods for hire, they are, in respect of such
goods, to be deemed common carriers. Bac. Ab. Carriers, A; 2 Show. Rep.
128 1 Salk. 282 Com. Rep. 25; 1 Pick. 50 5 Rawle, 1 79. The like
reasoning applies to packet ships and steam-boats, which ply between
different ports, and are accustomed to carry merchandise as well as
passengers. 2 Watts. R. 443; 5 Day's Rep. 415; 1 Conn. R. 54; 4 Greenl.
R. 411; 5 Yerg. R. 427; 4 Har. & J. 291; 2 Verm. R. 92; 2 Binn. Rep.
74; 1 Bay, Rep. 99; 10 John. R. 1; 11 Pick. R. 41; 8 Stew. and Port.
135; 4 Stew. & Port. 382; 3 Misso. R. 264; 2 Nott. & M. 88. But
see 6 Cowen, R. 266. The rule which makes acommon carrier responsible
for the loss of goods, does not extend to the carriage of persons; a
carrier of slaves is, therefore, answerable only for want of care and
skill. 2 Pet. S. C. R. 150. 4 M'Cord, R. 223; 4 Port. R. 238.
6.
A common carrier of goods is in all cases entitled to demand the price
of carriage before he receives the goods, and, if not paid, he may
refuse to take charge of them; if, however, he take charge of them
without the hire being paid, he may afterwards recover it. The
compensation which becomes due for the carriage of goods by sea, is
commonly called freight (q.v.); and see also, Abb. on Sh. part 3, c. 7.
The carrier is also entitled to a lien on the goods for his hire, which,
however, he may waive; but if once waived, the right cannot be resumed.
2 Kent, Com. 497. The consignor or shipper is commonly bound to the
carrier for the hire or freight of goods. 1 T. R. 659. But whenever the
consignee engages to pay it, he also becomes responsible. It is usual in
bills of lading to state, that the goods are to be delivered to the
consignee or to his assigns, he or they paying freight, in which case
the consignee and his assigns, by accepting the goods, impliedly become
bound to pay the freight, and the fact that the consignor is also liable
to pay it, will not, in such case, make any difference. Abbott on Sh.
part 3, o. 7, 4.
7.
What is said above, relates to common carriers of goods. The duties,
liabilities, and rights of carriers of passengers, are now to be
considered. These are divided into carriers of passengers on land, and
carriers of passengers on water.
8.
First, of carriers of passengers on land. The duties of such carriers
are, 1st. those which arise on the commencement of the journey. 1. To
carry passengers whenever they offer themselves and are ready to pay for
their transportation. They have no more right to refuse a passenger, if
they have sufficient room and accommodation, than an innkeeper has to
refuse a guest. 3 Brod. & Bing. 54; 9 Price's R. 408; 6 Moore, R.
141; 2 Chit. R. 1; 4 Esp. R. 460; 1 Bell's Com. 462; Story, Bailm. 591.
9. - 2. To provide coaches reasonably strong and sufficient for the journey, with suitable horses, trappings and equipments.
10.
- 3. To provide careful drivers of reasonable skill and. good habits
for the journey; and to employ horses which are steady and not vicious,
or likely to endanger the safety of the passengers.
11. - 4. Not to overload the coach either with passengers or luggage.
12. - 5. To receive and take care of the usual luggage allowed to every passenger on the journey. 6 Hill, N. Y. Rep. 586.
13.
- 2d. Their duties on the progress of the journey. 1. To stop at the
usual places, and allow the..Usual intervals for the refreshment of the
passengers. 5 Petersd. Ab. Carriers, p. 48, note.
14. - 2. To use all the ordinary precautions for the safety of passengers on the road.
15. - 3d. Their duties on the termination of the journey. 1. To carry the passengers to the end of the journey.
16.
- 2. To put them down at the usual place of stopping, unless there has
been a special contract to the contrary, and then to put them down at
the place agreed upon. 1 Esp. R. 27. ,
17.
The liabilities of such carriers. They are bound to use extraordinary
care and diligence to carry safely those whom they take in their
coaches. 2 Esp. R. 533; 2 Camp. R. 79; Peake's R. 80. But, not being
insurers, they are not responsible for accidents, when all reasonable
skill and diligence have been used.
18.
The rights of such carriers. 1. To demand and receive their fare at the
time the passenger takes his seat. 2. They have a lien on the baggage
of the passenger for his fare or passage money, but not on the person of
the passenger nor the clothes he has on. Abb. on Sh. part 3, c. 3, 11; 2
Campb. R. 631.
19.
Second, carriers of passengers by water. By the act of Congress of 2d
March, 1819, 3 Story's Laws U. S. 1722, it is enacted, 1. that no master
of a vessel bound to or from the United States shall take more than two
passengers for every five tons of the ship's custom-house measurement.
2. That the quantity of water and provisions, which shall be taken on
board and secured under deck, by every Ship bound from the United States
to any port on the continent of Europe, shall be sixty gallons of
water, one hundred pounds of salted provisions, one gallon of vinegar,
and one hundred pounds of wholesome ship bread for each passenger,
besides the stores of the crew. The tonnage here mentioned, is the
measurement of the custom-house; and in estimating the number of
passengers in a vessel, no deduction is to be made for children or
persons not paying, but the crew is not to be included. Gilp. R. 334.
20.
The act of Congress of February 22, 1847, section 1, provides: " That
if the master of any vessel, owned in whole or in part by a citizen of
the United States of America, or by a citizen of any foreign country,
shall take on board such vessel, at any foreign port or place, a greater
number of passengers than in the following proportion to the space
occupied by them and appropriated for their use, and unoccupied by
stores or other goods, not being the personal luggage of such
passengers, that is to say, on the lower deck or platform one passenger
for every fourteen clear superficial feet of deck, if such vessel is not
to pass within the tropics during such voyage; but if such vessel is to
pass within the tropics during such voyage, then one passenger for
every twenty such clear superficial feet of deck, and on the orlop deck
(if any) one passenger for every thirty such superficial feet in all
cases, with intent to bring such passengers to the United States of
America, and shall leave such port or, place with the same, and bring
the same, or any number thereof, within the jurisdiction of the United
States aforesaid, or if any such master of a vessel shall take on board
of his vessel at any port or place within the jurisdiction of the United
States aforesaid, any greater number of passengers than the proportions
aforesaid admit, with intent to carry the same to any foreign port or
place, every such master shall be deemed guilty of a misdemeanor, and,
upon conviction thereof before any circuit or district court of the
United States aforesaid, shall, for each passenger taken on board beyond
the above proportions, be fined in the sum of fifty dollars, and may
also be imprisoned for any term not exceeding one year: Provided, That
this act shall not be construed to permit any ship or vessel to carry
more than two passengers to five tons of such ship or vessel."
21.
Children under one year of age not to be computed in counting the
passengers, and those over one year and under eight, are to be counted
as two cbildren for one passenger, Sect. 4. But this section is repealed
so far as authorizes shippers to estimate two children of eight years
of age and under as one passenger by the act of March 2, 1847, s. 2.
22.
In New York, statutory regulations have been made in relation to their
canal navigation. Vide 6 Cowen's R. 698. As to the conduct of carrier
vessels on the ocean, Vide Story, Bailm. 607 et seq; Marsh. Ins. B. 1,
c. 12, s. 2. And see, generally, 1 Vin. Ab. 219; Bac. Ab. h. t.; 1 Com.
Dig. 423; Petersd. Ab. h. t.; Dane's Ab. Index, h. t.; 2 Kent, Com. 464;
16 East, 247, note; Bouv. Inst. Index, h. t.
23.
In Louisiana carriers and watermen are subject, with respect to the
safe-keeping and preservation of the tbings entrusted to them, to the
same obligations and duties, as are imposed on tavern keepers; Civ.
Code, art. 2722; that is, they are responsible for the effects which are
brought, though they were not delivered into their personal care;
provided, however, they were delivered to a servant or person in their
employment; art. 2937. They are responsible if any of the effects be
stolen or damaged, either by their servants or agents, or even by
strangers; art. 2938; but they are not responsible for what is stolen b
force of arms or with exterior breaking open of doors, or by any other
extraordinary violence; art. 2939. For the authorities on the subject
ofCommon carriers in the civil law, the reader is referred to Dig. 4, 9,
1 to 7; Poth. Pand. lib. 4, t. 9; Domat liv. 1, t. 16, S. 1 and 2;
Pard. art. 537 to 555; Code Civil, art. 1782, 1786, 1952; Moreau &
Carlton, Partidas 5, t. 8, 1. 26; Ersk. Inst. B. 2, t. 1, 28; 1 Bell's
Com. 465; Abb. on Sh. part 3, c. 3, 3, note (1); 1 Voet, ad Pand. lib.
4, t. 9; Merl. Rep. mots Voiture, Voiturier; Dict. de Police, Voiture.
COMMON COUNCIL.
In many cities the charter provides for their government, in imitation
of the national and state governments. There are two branches of the
legislative assembly; the less numerous, called the select, the other,
the common council.
2. In English law, the common council of the whole realm means the parliament. Fleta, lib. 2, cap. 13.
COMMON COUNTS.
Certain general counts, not founded on any special contract, which are
introduced in a declaration, for the purpose of preventing a defeat of a
just right by the accidental variance of the evidence. These are in an
action of assumpsit; counts founded on express or implied promises to
pay money in consideration of a precedent debt, and are of four
descriptions: 1. The indebitatus assumpsit; 2. The quantum meruit; 3 .
The quantum valebant; and, 4. The account stated.
COMMON FISHERY.
A fishery to which all persons have a right, such as the cod fisheries
off Newfoundland. A common fishery is different from a common of
fishery, which is the right to fish in another's pond, pool, or river.
See Fishery.
COMMON HIGHWAY.
By this term is meant a road to be used by the community at large for
any purpose of transit or traffic. Hamm. N. P. 239. See Highway.
COMMON INFORMER.
One who, without being specially required by law, or by virtue of his
office, gives information of crimes, offences or misdemeanors, which
have been committed, in order to prosecute the offenders; a prosecutor.
Vide Informer; Prosecutor.
COMMON INTENT, construction. The natural sense given to words.
2.
It is a rule that when words are used which will bear a natural sense
and an artificial one, or one to be made out by argument and inference,
the natural sense shall prevail; it. is simply a rule of construction
and not of addition common intent cannot add to a sentence words which
have been omitted. 2 H. Black. 530. In pleading, certainty is required,
but certainty to a common intent is sufficient; that is, what upon a
reasonable construction may be called certain, without recurring to
possible facts. Co. Litt. 203, a; Dougl. 163. See Certainty.
COMMON LAW. That which derives its force and authority from the universal consent and immemorial practice of the people. See Law, common.
COMMON NUISANCE. One which affects the public in general, and not merely some particular person. 1 Hawk. P. C. 197. See Nuisance.
COMMON PLEAS.
The name of a court having jurisdiction generally of civil actions. For
a historical account of the origin of this court in England, see
Boote's Suit at Law, 1 to 10. Vide Common Bench and Bench.
2.
By common pleas, is also understood, such pleas or actions as are
brought by private persons against private persons; or by the
government, when the cause of action is of a civil nature. In England,
whence we derived this phrase, common pleas are so called to distinguish
them from pleas of the crown. (q. v.)
COMMON RECOVERY.
A judgment recovered in a fictitious suit, brought against the tenant
of the freehold, in consequence of a default made by the person who is
last vouched to warranty in the suit., A common recovery is a kind of
conveyance. 2 Bouv. Inst. n. 2088, 2092-3. Vide Recovery.
COMMON SCOLD,
Crim. law, communes rixatrix. A woman, who, in consequence of her
boisterous, disorderly and quarrelsome tongue, is a public nuisance to
the neighborhood.
2.
Such a woman may be indicted, and on conviction, punished. At common
law, the punishment was by being placed in a certain engine of
correction called the trebucket or cocking stool.
3.
This punisbment has been abolished in Pennsylvania, where the offence
may be punished by fine and imprisonment.12 Serg. & Rawle, 220; vide
1 Russ. on Cr. 802 Hawk. B. 2, c. 25, s. 59 1 T. R. 756 4 Rogers' Rec.
90; Roscoe on Cr. Ev. 665.
COMMON SEAL, A seal used by a corporation. See Corporation.
COMMON SENSE ,
med. jur. When a person possesses those perceptions, associations and
judgments, in relation to persons and things, which agree with those of
the generality of mankind, he is said to possess common sense. On the
contrary, when a particular individual differs from the generality of
persons in these respects, he is said not to have common sense, or not
to be in his senses. 1 Chit. Med. Jur. 334.
COMMON, TENANTS IN.
Tenants in common are such as hold an estate, real or personal, by
several distinct titles, but by a unity of possession. Vide Tenant in
common; Estate in common.
COMMON TRAVERSE.
This kind of traverse differs from those called technical traverses
principally in this, that it is preceded by no inducement general or
special; it is taken without an absque hoc, or any similar words, and is
simply a direct denial of the adverse allegations, in common language,
and always concludes to the country. It can be used properly only when
an inducement is not requisite; that is, when the party traversing has
no need to allege any new matter. 1 Saund. 103 b. ii. 1.
2.
This traverse derives its name, it is presumed, from the fact that
common language is used, and that it is more informal than other
traverses.
COMMON VOUCHEE.
In common recoveries, the person who vouched to warranty. In this
fictitious proceeding, the crier of the court usually performs the
office of a common vouchee. 2 Bl. Com. 358; 2 Bouv. Inst. n. 2093.
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