CENSUS

CENSUS

    21.1.19  

 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.

CAESARIAN OPERATION

CAESARIAN OPERATION

    21.1.19  

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.

CAUTION

CAUTION

    21.1.19  

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.

CATCHING BARGAIN

CATCHING BARGAIN

    21.1.19  

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.

CASUS OMISSUS

CASUS OMISSUS

    21.1.19  

CASUS OMISSUS. An omitted case.

2. When a statute or an instrument of writing undertakes to foresee and to provide for certain contingencies, and through mistake, or some other cause, a case remains to be provided for, it is said to be a casus omissus.For example, when a statute provides for the descent of intestates estates, and omits a case, the estate descends as it did before the statute, whenever that, case occurs, although it appear to be within the general scope and intent of the statute. 2 Binn. R. 279.

3. When there has been a casus omissus in a statute, the subject is ruled by the common law: casus omissuset oblivioni datus dispositioni juris communis relinquitur. 5 Co. 38. Vide Dig. 38, 1, 44 and 55 Id. 38, 2, 10; Code, 6, 52, 21 and 30.

CASUAL

CASUAL

    21.1.19  

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.

CARTEL

CARTEL

    21.1.19  

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.

CAPTION

CAPTION

    21.1.19  

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.

CAPTATION

CAPTATION

    21.1.19  

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.

CAPITULATION

CAPITULATION

    21.1.19  

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.

CAPITAL

CAPITAL

    21.1.19  

 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.

CAPITA

CAPITA

    21.1.19  

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;

CANAL

CANAL

    21.1.19  

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.

CALENDER

CALENDER

    21.1.19  

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.

CABINET

CABINET

    21.1.19  

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.

CONSTABLE

CONSTABLE

    2.2.18  

CONSTABLE. An officer, who is generally elected by the people.

2. He possess power, virture officii, as a conservator of the peace at common law, and by virtue of various legislative enactments; he. way therefore apprehend a supposed offender without a warrant, as treason, felony, breach of the peace, and for some misdemeanors Iess than felony, when committed in his view. 1 Hale, 587; 1 East, P. C. 303 8 Serg. & Rawle, 47. He may also arrest a supposed offender upon the informatiou of others but he does so at his peril, unless he can show that a felony has been committed by some person, as well as the reasonableness of the suspicion that the party arrested is guilty. 1 Chit. Cr. L. 27; 6 Binn. R. 316; 2 Hale, 91, 92 1 East, P. C. 301. He has power to call others to his assistance; or he may appoint a deputy to do ministerial acts. 3 B urr. Rep. 1262.

CONSOLIDATION

CONSOLIDATION

    2.2.18  

CONSOLIDATION, civil law. The union of the usufruct with the estate out of which it issues, in the same person which happens when the usufructuary acquires the estate, or vice versa. In either case the usufruct is extinct. In the common law this is called a merger. Ley. El. Dr. Rom. 424. U. S. Dig. tit. Actions, V.

2. Consolidation may take place in two ways: first, by the usufructuary surrendering his right to the proprietor, which in the common law is called a surrender; secondly, by the release of the. proprietor of his rights to the usufructuary, which in our law is called a release.

CONFUSION

CONFUSION

    2.2.18  

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

CONFUSION OF GOODS. This takes place where the goods of two or more persons become mixed together so that they cannot be separated. There is a difference between confusion and commixtion; in the former it is impossible, while in the latter it is possible, to make a separation. Bowy. Comm. 88.

2. When the confusion takes place by the mutual consent of the owners, they have an interest in the mixture in proportion to their respective shares. 2 Bl. Com. 405; 6 Hill, N. Y. Rep. 425. But if one willfully mixes his money, corn or hay, with that of another man, without his approbattion or knowledge, the law, to guard against fraud, gives the entire property without any account, to him whose original dominion is invaded land endeavored to be rendered uncertain, without his cosent. Ib.; and see 2 Johns. Ch. It. 62 2 Kent's Comm. 297.

CONIFISCATION

CONIFISCATION

    2.2.18  

CONIFISCATION. The act by which the estate, goods or chattels of a person who has been guilty of some crime, or who is a public enemy, is declared to be forfeited for the benefit of the public treasury. Domat, Droit Public, liv. 1, tit. 6, s. 2, n. 1. When property is forfeited as a punishment for the commission of crime, it is usually called a forfeiture. 1 Bl. Com. 299.

COMPETENCY, COMPETENT WITNESS

COMPETENCY, COMPETENT WITNESS

    2.2.18  

COMPETENCY, evidence. The legal fitness or ability of a witness to be heard on the trial of a cause. This term is also applied to written or other evidence which may be legally given on such trial, as, depositions, letters, account-books, and the like.

2. Prima facie every person offered is a competent witness, and must be received, unless Lis incompetency (q. v.) appears. 9 State Tr. 652.

3. There is a difference between competency and credibility. A witness may be competent, and, on examination, his story may be so contradictory and improbable that he may not be believed; on the contrary he may be incompetent, and yet be perfectly credible if he were examined.