SCIRE FIERI INQUIRY

SCIRE FIERI INQUIRY

    29.12.19  

SCIRE FIERI INQUIRY, Eng. law. The name of a writ, the history of the origin of which is as follows: when on an execution de bonis testatoris against an executor the sheriff returned nulla bona and also a devastavit, a fieri fac-ias, de bonis propriis, might formerly have been issued against the executor, without a previous inquisition finding a devastavit and a scire facias. But the most usual practice upon the sheriff's return of nulla bona a to a fieri facias de bonis testatoris, was to sue out a special writ of fieri facias de bonis testatoris, with a clause in it, "et si tibi constare, poterit," that the executor had wasted the goods, then to levy de bonis propriis. This was the practice in the king's bench till the time of Charles I.

2. In the common pleas a practice had prevailed in early times upon a suggestion in the special writ of fieri facias of a devastavit by the executor, to direct the sheriff to inquire by a jury, whether the executor had wasted the goods, and if the jury found he had, then a scire facias was issued out against him, and unless he made a good defence thereto, an execution de bonis propriis was awarded against him.

3. The practice of the two courts being different, several cases were brought into the king's bench on error, and at last it became the practice of both courts, for the sake of expedition, to incorporate the fieri facias inquiry, and scire facias, into one writ, thence called a scire fieri inquiry, a name compounded of the first words of the two writs of scire facias and fieri facias, and that of inquiry, of which it consists.

4. This writ recites the fieri facias de bonis testatoris sued out on the judgment against the executor, the return of nulla bona by the sheriff, and then suggesting that the executor bad sold and converted the goods of the testator to the value of the debt and damages recovered, commands the sheriff to levy the said debt and damages of the goods of the testator in the hands of the executor, if they could be but if it should appear to him by the inquisition of a jury that the executor had wasted the goods of the testator, then the sheriff is to warn the executor to appear, &c. If the judgment had been either by or against the testator or intestate, or both, the writ of fieri facias recites that fact, and also that the court had adjudged, upon a scire facias to revive the judgment, that the executor or administrator should have execution for the debt, &c. Clift's Entr. 659; Lilly's Entr. 664; 3 Rich. Pr. K. B. 523.

5. Although this practice is sometimes adopted, yet the most usual proceeding is by action of debt on the judgment, suggesting a devastavit, because in the proceeding by scire fieri inquiry the plaintiff is not entitled to costs, unless the executor appears and pleads to the scire facias. 1 Saund. 219, n. 8. See 2 Archb. Pr. 934.

BILL OF RIGHTS

BILL OF RIGHTS

    27.12.19  

BILL OF RIGHTS

English law. A statute passed in the reign of William and Mary, so called, because it declared the true rights of British subjects. W. & M. stat. 2, c. 2.

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 Templates: Create a Bill of Sale Forms

ARTICLES OF THE PEACE; ARTICLES OF WAR

ARTICLES OF THE PEACE; ARTICLES OF WAR

    22.12.19  

ARTICLES OF THE PEACE, Eng. practice. An instrument which is presented to a court of competent jurisdiction, in which the exhibitant shows the grievances under which be labors, and prays the protection of the court. It is made on oath. See a form in 12 Adol. & Ellis, 599; 40 E. C. L. R. 125, 126; 1 Chit. Pr. 678.

2. The truth of the articles cannot be contradicted, either by affidavit or otherwise; but the defendant may either except to their sufficiency, or tender affidavits in reduction of the amounts of bail. 13 East. 171.

ARTICLES OF WAR. The name commonly given to a code made for the government of the army. The act of April 10, 1806, 2 Story's Laws U. S. 992, contains the rulesand articles by which the armies of the United States shall be governed. The act of April 23, 1800, 1 Story's L. U. S. 761, contains the rules and regulations for the government of the navy of the United States.

ALIENAGE, ALIENATION

ALIENAGE, ALIENATION

    2.2.18  

ALIENAGE. The condition or state of alien.

ALIENATE, aliene, alien. This is a generic term applicable to the various methods of transfering property from one person to another. Lord Coke, says, (1 Inst. 118 b,) alien cometh of the verb alienate, that is, alienum facere vel ex nostro dominio in alienum trawferre sive rem aliquam in dominium alterius transferre. These methods vary, according to the nature of the property to be conveyed and the particular objects the conveyance is designed to accomplish. It has been held, that under a prohibition to alienate, long leases are comprehended. 2 Dow's Rep. 210.

EQUITABLE, EQUITY, EQUITY OF REDEMPTION

EQUITABLE, EQUITY, EQUITY OF REDEMPTION

    1.2.18  

EQUITABLE. That which is in conformity to the natural law. Wolff, Inst. §83.

EQUITABLE ESTATE. An equitable estate is a right or interest in land, which, not having the properties of a legal estate, but being merely a right of which courts of equity will take notice, requires the aid of such court to make it available.

2. These estates consist of uses, trusts, and powers. See 2 Bouv. Inst. n. 1884. Vide Cestui que trust; Cestui que use.

ENTRY, ENTRY, WRIT OF

ENTRY, ENTRY, WRIT OF

    1.2.18  

ENTRY. criminal law. The unlawful breaking into a house, in order to commit a crime. In cases of burglary, the least entry with the whole or any part of the body, hand, or foot, or with any instrument or weapon, introduced for the purpose of committing a felony, is sufficient to complete the offence. 3 Inst. 64.

ENTRY, estates, rights. The taking possession of lands by the legal owner.

2. A person having a right of possession may assert it by a peaceable entry, and being in possession may retain it, and plead that it is his soil and freehold; and this will not break in upon any rule of law respecting the mode of obtaining the possession of lands.

3 Term Rep. B. R. 295. When another person has taken possession of lands or tenements, and the owner peaceably makes an entry thereon, and declares that be thereby takes possession of the same, he shall, by this notorious act of ownership, which is equal to a feodal investiture, be restored to his original right. 3 Bl. Com. 174. 3. A right of entry is not assignable at common law. Co. Litt. 214 a. As to the law on this subject in the United States, vide Buying of titles; 4 Kent, Com. 439 2 Hill. Ab. c. 33, §42 to 52; also,artic le ReEntry; Bac. Ab. Descent, G; 8 Vin. Ab. 441.

4. In another sense, entry signifies the going upon another man's lands or his tenements. An entry in this sense may be justifiably made on another's land or house, first, when the law confers an authority; and secondly, when the party has authority in fact.

5. First, 1. An officer may enter the close of one against whose person or property he is charged with the execution of a writ. In a civil case, the officer cannot open (even by unlatching) the outer inlet to a house, as a door or window opening into the street 18 Edw. IV., Easter, 19, pl. 4; Moore, pl. 917, p. 668 Cooke's case, Wm. Jones, 429; although it has been closed for the purpose of excluding him. Cowp. 1. But in a criminal case, a constable may break open an outer door to arrest one within suspected of felony. 13 Edw. IV., Easter, 4, p. 9. If the outer door or window be open, he may enter through it to execute a civil writ; Palin. 52; 5 Rep. 91; and, having entered, he may, in every case, if necessary, break open an inner door. 1 Brownl. 50.

6. - 2. The lord may enter to distrain, and go into the house for that purpose, the outer door being open. 5 Rep. 91.

7. - 3. The proprietors of goods or chattels may enter the land of another upon which they are placed, and remove them, provided they are there without his default; as where his tree has blown down into the adjoining close by the wind, or his fruit has fallen from a branch which overhung it. 20 Vin. Abr. 418.

8. - 4. If one man is bound to repair bridge, he has a right of entry given him by law for that purpose. Moore, 889.

9. - 5. A creditor has a right to enter the close of his debtor to demand the duty owing, though it is not to be rendered there. Cro. Eliz. 876.

10. - 6. If trees are excepted out of a demise, the lessor has the right of entering, to prune or fell them. Cro. Eliz. 17; 11. Rep. 53.

11. - 7. Every traveller has, by law, the privilege of entering a common inn, at all seasonable times, provided the host has sufficient accommodation, which, if he has not, it is for him to declare.

12.- 8. Ever man may throw down a public nuisance, and a private one may be thrown down by the party grieved, and this before an prejudice happens, but only from the probability that it may happen. 5 Rep, 102 and see 1 Brownl. 212; 12 Mod. 510 Wm. Jones, 221; 1 Str. 683. To this end, the abator has authority to enter the close in which it stands. See Nuisance.

13. - 9. An entry may be made on the land of another, to exercise or enjoy therein an incorporeal right or hereditament to which he is entitled. Hamm. N. P. 172. See general Bouv. Inst. Index, h. t.; 2 Greenl. Ev. §627; License.

ENTRY, commercial law. The act of setting down the particulars of a sale, or other transaction, in a merchant's or tradesman's accouut books; such entries are, in general, prima facie evidence of the sale and delivery, and of work, done; but unless the entry be the original one, it is not evidence. Vide Original entry.

ENTRY AD COMMUNE LEGEM, Eng. law. The name of a writ which lies in favor of the reversioner, when the tenant for term of life, tenant for term of another's life, tenant by the curtesy, or tenant in dower, aliens and dies. T. L.

ENTRY OF GOODS, commercial law. An entry of goods at the custom-house is the submitting to the officers appointed by law, who have the collection of the customs, goods imported. into the United States, together with a statement or description of such goods, and the original invoices of the same. The act of March 2, 1799, s. 36, 1 Story, L. U. S. 606, and the act of March 1, 1823, 3 Story, L. U. S. 1881, regulate the manner of making entries of goods.

ENTRY, WRIT OF. The name of a writ issued for the purpose of obtaining possession of land from one who has entered unlawfully, and continues in possession. This is a mere possessor action, and does not decide the right of property.

2. The writs of entry were commonly brought, where the tenant or possessor of the land entered lawfully; that is, without fraud or force; 13 Edw. I. c. 25; although sometimes they wer6 founded upon an entry made by wrong. The forms of these writs are very various, and are adapted to the, title and estate of the demandant. Booth enumerates and particularly discusses twelve varieties. Real Actions, pp. 175-200. In general they contain an averment of the manner in which the defendant entered. At the common law these actions could be brought only in the degrees, but the Statute of Marlbridge, c. 30; Rob. Dig. 147, cited as c. 29; gave a writ adapted to cases beyond the degrees, called a writ of entry in the post. Booth, 172, 173. The denomination of these writs by degrees, is derived from the circumstance that estates are supposed by the law to pass by degrees from one person to another, either by descent or purchase. Similar to this idea, or rather corresponding with it, are the gradations of consanguinity, indicated by the very common term pedigree. But in reference to the writs of entry, the degrees recognized were only two, and the writs were quaintly termed writs in the per, and writs in the per and cui. Examples of these writs are given in Booth on R. A. pp. 173, 174. The writ in the, per runs thus: " Command A, that be render unto B, one messuage, &c., into which he has not entry except (per) by &c. The writ in the per and cui contains another gradation in the transmission of the estate, and read thus: Command A, that he render, &c., one messuage, into which he hath not entry but (per) by C, (cui) to whom the aforesaid B demised it for a term of years, now expired," &c. 2 Institute, 153; Co. Litt. b, 239, a. Booth, however, makes three degrees, by accounting the estate in the per, the second degree. The difference is not substantial. If the estate had passed further, either by descent or conveyance, it was said to be out of the degrees, and to such cases the writ of entry on the. statute of Marlbridge, only, was applicable. 3 Bl. Com. 181, 182; Report of Com. to Revise Civil Code of Penna. January 15, 1835, p. 85. Vide Writ of entry.

ADMISSION, ADMISSIONS...

ADMISSION, ADMISSIONS...

    24.1.18  

ADMISSION, in corporations or companies. The act of the corporation or company by which an individual acquires the rights of a member of such corporation or company.

2. In trading and joint stock corporations no vote of admission is requisite; for any person who owns stock therein, either by original subscription or by conveyance, is in general entitled to, and cannot be refused, the rights and privileges of a member. 3 Mass. R. 364; Doug. 524; 1 Man. & Ry. 529.

3. All that can be required of the person demanding a transfer on the books, is to prove to the corporation his right to the property. See 8 Pick. 90.

ACT, ACTION... ACTS OF SEDERUNT

ACT, ACTION... ACTS OF SEDERUNT

    24.1.18  

ACT, civil law, contracts. A writing which states in a legal form that a thing has been said, done, or agreed. In Latin, Instrumentum. Merl. Rep.

ACT. In the legal sense, this word may be used to signify the result of a public deliberation, the decision of a prince, of a legislative body, of a council, court of justice, or a magistrate. Also, a decree, edict, law, judgment, resolve, award, determination. Also, an instrument in writing to verify facts, as act of assembly, act of congress, act of parliament, act and deed. See Webster's Dict. Acts are civil or criminal, lawful or unlawful, public or private.

MASTER, MASTER OF THE ROLLS, MASTER OF A SHIP

MASTER, MASTER OF THE ROLLS, MASTER OF A SHIP

    28.12.17  

MASTER. This word has several meanings. 1. Master is one who has control over a servant or apprentice. A master stands in relation to his apprentices, in loco parentis, and is bound to fulfil that relation, which the law generally enforces. He is also entitled to be obeyed by his apprentices, as if they were his children. Bouv. Inst. Index, h. t.

2. - 2. Master is one who is employed in teaching children, known generally as a schoolmaster; as to his powers, see Correction.

3. - 3. Master is the name of an officer: as, the ship Benjamin Franklin, whereof A B is master; the master of the rolls; master in chancery, &c.

ANCIENT, ANCIENT LIGHTS, ANCIENT WRITINGS

ANCIENT, ANCIENT LIGHTS, ANCIENT WRITINGS

    28.12.17  

ANCIENT. Something old, which by age alone has acquired some force; as ancient lights, ancient writings.

ANCIENT DEMESNE, Eng. law. Those lands which either were reserved to the crown at the original distribution of landed property, or such as came to it afterwards, by forfeiture or other means. 1. Sal. 57; hob. 88; 4 Inst. 264; 1 Bl. Com. 286; Bac. Ab. h. t.; F. N. B. 14.

ANCIENT LIGHTS, estates. Windows which have been opened for twenty years or more, and enjoyed without molestation by the owner of the house. 5 Har. & John. 477; 12 Mass. R. 157,.220.

DIVISION; DIVISION OF OPINION

DIVISION; DIVISION OF OPINION

    26.12.17  

DIVISION, Eng. law. A particular and ascertained part of a county. In Lincolnshire, division means what riding does in Yorkshire.

DIVISION OF OPINION. When, in a company or society, the parties having a right to vote are so divided that there is not a plurality of the whole in favor of any particular proposition, or when the voters are equally divided, it is said there. is division of opinion.

2. In such a case, the Roman law, which seems founded in reason and common sense, directs, that when the division relates to the quantity of things included, as in the case of a judgment, if one of three judges votes for condemning a man to a fine of one hundred dollars, another, to one of fifty dollars, and the third to twenty-five, the opinion or vote of; the last shall be the rule for the judgment; because the votes of all the others include that of the lowest; this is the case when unanimity is required. But when the division of opinions does not relate to the quantity of things, then it is always to be in favor of the defendant. It was a rule among the Romans that when the judges were equal in number, and they were divided into two opinions in cases of liberty, that opinion which favored it should prevail; and in other cases, it should be in favor of the defendant. Poth. Pand. liv. L. n. MDLXXIV.

3. When the judges of a court are divided into three classes, each holding a different opinion, that class which has the greatest number shall give the judgment; for example, on a habeas corpus, when a court is composed of four judges, and one is for remanding the prisoner, another is for discharging him on his own recognizance, and two others for discharging him absolutely, the judgment will be, that he be discharged. Rudyard's Case, Bac. Ab. Habeas Corpus, B 10, Court 5.

4. It is provided, by the Act of Congress of April 29, 1802, s. 6, that whenever any question shall occur before a circuit court, upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen shall, during the same term, upon the request of either party, or their counsel, be stated, under the direction of the judges, and certified, under the seal of the court, to the supreme court, at their next session to be hold thereafter, and shall, by the said court, be finally decided. And the decision of the supreme court, and their order in the premises, shall be, remitted to the circuit court, and be there entered *of record and shall have effect according to the nature of the said judgment and order: Provided, That nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits: And Provided, also, That imprisonment shall not be allowed, nor punishment in any case be inflicted, where the judges of the said court are divided in opinion upon the question touching the said imprisonment or punishment. See 5 N. S. 407.

WRIT, WRIT OF CONSPIRACY, WRIT OF DEBT, WRIT OF ERROR...

WRIT, WRIT OF CONSPIRACY, WRIT OF DEBT, WRIT OF ERROR...

    12.7.17  

WRIT, practice. A mandatory precept issued by the authority, and in the name of the sovereign or the state, for the purpose of compelling the defendant to do something therein mentioned. 

 

2. It is issued by a court or other competent jurisdiction, and is return-able to the same. It is to be under seal and tested by the proper officer, and is directed to the sheriff, or other officer lawfully authorized to execute the same. Writs are divided into, 1. Original. 2. Of mesne process. 3. Of execution. Vide 3 Bl. Com. 273; 1 Tidd, Pr. 93; Gould on Pl. c. 2, s. 1. There are several kinds of writs, some of which are mentioned below.

WRIT DE BONO ET MALO. An ancient writ which was issued in the case of each prisoner, instead of a general commission of general jail delivery for all the prisoners. This writ has not been used for a very long time, and is obsolete. 4 Bl. Com. 210.

WRIT OF CONSPIRACY. The name of an ancient writ, now superseded by the more convenient remedy of an action on the case, which might have been sued against parties guilty of a conspiracy. F. N. B. 260. See Conspiracy.

WRIT OF DECEIT. The name of a writ which lies where one man has done anything in the name of another, by which the latter is damnified and deceived. F. N. B. 217.

2. The modern practice is to sue a writ of trespass on the case to remedy the injury. See Deceit.

WRIT DE EJECTIONE FIRMAE. A writ of ejectment. Vide Ejectment, and 3 Bl. Com. 199.

WRIT DE HAERETICO COMBURENDO, Engl. law. The name of a writ formerly issued by the secular courts, when a man was turned over to them by the ecclesiastical tribunals, after having been condemned for heresy.

2. It was founded on the statute 2 Hen. IV. c. 15; it was first used, A. D. 1401, and as late as the year 1611. By virtue of this writ, the unhappy man against whom it was issued, was burned to death. See 12 Co. R. 92.

WRIT DE HOMINE RELEGIANDO, practice. A writ which lies to replevy a man out of prison, or out of the custody of any private person, in the same manner in which cattle taken in distress may be replevied, upon giving security to the sheriff that the man shall be forthcoming to answer to any charge against him.

2. This writ is almost entirely superseded by the more effectual writ of habeas corpus. 3 Bl. Com. 129; Com. Dig. Imprisonment, L 4; Lord Raym. 613; F. N. B. 66; 1 Atk. 633; 14 Vin. Ab. 305; Dane's Ab. h. t.; 7 Com. Dig. 271; 5 Binn. R. 304; 1 John. R. 23; 14 John. R. 263 2 Cain. C. Err. 322.

WRIT DE ODIO ET ATIA, Engl. law. This writ is probably obsolete, and superseded by the writ of habeas corpus. It was anciently directed to the sheriff, commanding him to inquire whether a prisoner charged with murder was committed upon just cause or suspicion, or merely propter odium et atiam, for hatred and ill-will; and, if upon the inquisition due cause of suspicion did not appear, then there issued another writ for the sheriff to admit him to bail, 3 Bl. Com. 128; Com. Dig. Imprisonment, L 3.

WRIT OF COVENANTS, practice. A writ which lies where a party claims damage for breach of covenant, i. e. of a promise under seal.

WRIT OF DEBT, practice. A writ which lies where the party claims the re-covery of a debt, i. e. a liquidated or certain sum of money alleged to be due to him. This is debt in the debet, which is the principal and only common form. There is another species mentioned in the books, called the debt in the detinet, which lies for the specific recovery of goods, under a contract to deliver them. 1 Chit. Pl. 101.

WRIT OF DETINUE, practice. A writ which lies where a party claims the spe-cific recovery of goods and chattels, or deeds and writings detained from him. This is seldom used: trover is the more frequent remedy, in cases where it may be brought.

WRIT OF DOWER, practice. A writ which lies for a widow ciaiming the specific recovery of her dower, no part having been yet assigned to her. It is usually called a writ of dower unde nihil habet. 3 Chit. Pl. 393; Booth, 166.

2. There is another species, called a writ of right of dower, which applies to the particular case where the widow has received a part of her dower from the tenant himself, and of land lying in the same town in which she claims the residue. Booth, 166; Glanv. lib. 6, c. 4, 5. This latter writ is seldom used in practice.

WRIT OF EJECTMENT, practice. The name of a process issued by a party claiming land or other real estate, against one who is alleged to be unlawfully in possession. Vide Ejectment.

WRIT OF ENTRY, practice. A writ requiring the sheriff to command the tenant of land that he render to the demandant the premises in question, or to appear in court on such a day to show cause why he hath not done so. Co. Litt. 238. See 2 Pick. 473; 10 Pick. 359; 14 Mass. 20; 15 Mass. 305; 5 N. Hamp. R. 450; 6 N. Hamp. R. 555; 7 Pick. 36.

WRIT OF ERROR, practice. A writ issued out of a court of competent jurisdiction, directed to the judge of a court of record in which final judgment has been given, and commanding them, in some cases, themselves to examine the re-cord; in others to send it to another court of appellate jurisdiction, therein named, to be examined in order that some alleged error in the proceeding may be corrected. Steph. Pl. 138; 2 Saund. 100, n. 1; Bac. Ab. Error, in pr.

2. The first is called a writ of error coram nobis or vobis. When an issue in fact has been decided, there is not in general any appeal except by motion for a new trial; and although a matter. of fact should exist which was not brought into the issue, as for example, if the defendant neglected to Plead a release, which he might have pleaded, this is no error in the proceedings, though a mistake of the defendant. Steph. Pl. 139. But there are some facts which affect the validity and regularity of the proceeding itself, and to remedy these errors the party in interest may sue out the writ of error coram vobis. The death of one of the parties at the commencement of the suit; the appearance of an infant in a personal action, by an attorney, and not by guardian; the coverture of either party, at the commencement of the suit, when her husband is not joined with her, are instances of this kind. 1 Saund. 101; 1 Arch. Pr. 212; 2 Tidd's Pr. 1033; Steph. Pl. 140 1 Browne's Rep. 75.

3. The second species is called, generally, writ of error, and is the more common. Its object is to review and correct an error of the law committed in the proceedings, which is not amendable, or cured at common law, or by some of the statutes of amendment or jeofail. Vide, generally, Tidd's Pr. ob. 43; Graham's Pr. B. 4, o. 1; Bac. Ab. Error; 1 Vern. 169; Yelv. 76; 1 Salk. 322; 2 Saund. 46, n. 6, and 101, n. 1; 3 Bl. Com. 405; Serg. Const. Law, ch. 5.

4. In the French law the demande en cassation is somewhat similar to our proceeding in error; according to some of the best writers on French law, it is considered as a new suit, and it is less an action between the original parties, than a question between the judgment and the law. It is not the action which is to be judged, but the judgment; "la demande en cassation est un nouveau proces, bien moins entre les parties qui figuraient dans le premier, qu'entre l'arret et la loi." Henrion de Pansey, de l'Autorite judiciare dans les gouvernemens monarchiques, p. 270, edit. in 8vo.; 6 Toull. n. 193. Ce n'est point le' proces qu'il s'agit de juger, mais le jugement. Ib.

5. A writ of error is in the nature of a suit or action, when it is to restore the party who obtains it to the possession of any thing which is withheld from him, not when its operation is entirely defensive. 3 Story. Const. §1721. And it is considered generally as a new action. 6 Port 9.

WRIT OF EXECUTION, practice. A writ to put in force the sentence that the law has given: it is addressed to the Sheriff (and in the courts of the United States, to the marshal) commanding him, according to the nature of the case, either to give the plaintiff possession of lands; or to enforce the delivery of a chattel which was the subject of the action; or to levy for the plain-tiff, the debt, or damager, and costs recovered; or to levy for the defendant his costs; and that, either upon the body of the opposite party, his lands, or goods, or in some cases, upon his body, land, and goods; the extent and manner of the execution directed, always depending upon the nature of the judgment. 3 Bl. Com. 413.

2. Writs of execution are supposed to be actually awarded by the judges in court; but no such award is in general, actually made. The attorney, after signing final judgment, sues out of the proper office a writ of execution, in the form to which he conceives he would be entitled upon such judgment as he. has entered, if such entry has been actually made; and, if not made, then upon such as he thinks he is entitled to enter; and he does this, of course, upon peril that, if he takes a wrong execution, the proceeding is legal and void, and the opposite party entitled to redress. Steph. Pl, 137, 8. See Ca. Sa.; Execution; Fi. Fa.; Haberefa. possessionem; Vend. Exp.

WRIT OF EXIGI FACIAS. The name of a process issued in the course of proceedings in outlawry, and which immediately precedes the writ of capias agatum. See Exigent, or Exigi Facias.

WRIT OF FORMEDON, practice. This writ lies where a party claims the specific recovery of lands and tenements, as issue in tail; or as remainder-man or reversioner, upon the determination of an estate in tail. Co. Litt. 236 b; Booth, 139, 151, 154.

WRIT OF INQUIRY, practice. When in an action sounding in damages, (q. v.) as covenant, trespass, and the like, an interlocutory judgment is rendered, which is, that the plaintiff ought to recover his damages, without specifying the amount, it not yet being ascertained, the court does not in general undertake the office of assessing the damages, but issues a writ of inquiry, which is a writ directed to the sheriff of the county where the facts are alleged by the pleadings to have occured, commanding him to inquire into the amount of damages sustained "by the oath or affirmation of twelve good or lawful men of his county;" and to return such inquisition, when made, to the court.

2. The finding of the sheriff and jury under such a proceeding is called an inquisition. (q. v.)

3. The court will, on application, order that a writ of inquiry shall be executed before a judge, where it appears that important questions of law will arise. 2 John. R. 107.

4. When executed before the sheriff, he acts ministerially, and not judicially, and therefore, it may be executed before a deputy of the sheriff. 2 John R. 63. Vide Steph. Pl. 126; Grah. Pr. 639; 2 Archb. Pr. 19; Tidd's Pr. 513; Yelv. 152, n.; 18 Eng. Com. Law Rep. 181, n., 189, n.; 1 Marsh. R. 129; l Sell. Pr. 346; Watson on Sher. 221; 2 Saund. 107, n. 2.

WRITS, JUDICIAL, practice. In England those writs which issue from the common law courts during the progress of a suit, are described as judicial writs, by way of distinction from the original one obtained from chancery. 3 Bl. Com. 282.

WRIT OF MAINPRIZE, English law. A writ directed to the sheriff (either gen-erally, when any man is imprisoned for a bailable offence, and bail has been refused; or specially, when the offence or cause of commitment is not properly bailable below) commanding him to take sureties for the prisoner's appearance, commonly called mainpernors, and to set him at large. 3 B]. Com. 128. Vide Mainprize.

WRIT OF MESNE, Breve' de medio, old English law. A writ which was so called, by reason of the words used in the writ, namely, Unde idem A qui medius est inter C et praefatum B; that is, A, who is mesne between C, the lord paramount, and B, the tenant paravail. Co. Litt. 100, a.

WRIT, ORIGINAL, practice, English law. An original writ is a mandatory letter issuing out of the court of chancery under the great seal and in a king's name, directed to the sheriff of the county where the injury is alleged to have been committed, containing a summary statement of the cause of complaint, and requiring him in most cases, to command the defendant to satisy the claim; and, on his failure to comply, then to summon him to appear in one of the superior courts of common law, there to account for his non-compliance. In some cases, however, it omits the former alternative, and requires the sheriff simply to enforce the appearance. Steph. Pl. 5.

WRIT OF REPLEVIN, practice. The name of a process issued for the recovery of goods and chattels. Vide Replevin.

WRIT OF PRAECIPE. This writ is also called a writ of covenant, and is sued out by the party to whom lands are to be conveyed by fine; the foundation of which is a supposed agreement or covenant that the one shall convey the land to the other. 2 Bl. Com. 349, 350.

WRIT OF PREVENTION. This name is given to certain writs which may be issued in anticipation of suits which may arise. Co. Litt. 100. See Quia Timet.

WRIT OF RATIONABILI PARTE BONORUM. A writ which was sued out by a widow when the executors of her deceased husband refused to let her have a third part of her late husband's goods after the debts were paid. F. N. B. 284.

WRIT OF RESTITUTION. A writ which is issued on the reversal of a judgment, commanding the sheriff to restore to the defendant below, the thing levied upon, if it has not been sold, and if it has been sold, the proceeds. Bac. Ab. Execution, Q. Vide Restitution.

WRIT PRO RETORNO HABENDO, remedies, practice. The name of a writ which re-cites that the defendant was summoned to appear to answer the plaintiff in a plea whereof he took the cattle of the said plaintiff, specifying them, and that the said plaintiff afterwards made default, wherefore it was then considered that the said plaintiff and his pledges of prosecuting should be in mercy and that the said defendant should go without day, and that he should have re-turn of the cattle aforesaid. It then commands the sheriff, that he should cause to be returned the cattle aforesaid, to the said defendant without delay, &c. 2 Sell. Pr. 168. Vide Judgment in replevin.

WRIT OF PROCESS, Engl. law, pradice. If the defendant does not appear, in obedience to the original writ, there issue, when the time for appearance is past, other writs, returnable on some general return day in the term, called writs of process, enforcing the appearance of the defendant, either by attachment, or distress of his property, or arrest of his person, according to the nature of the case.

2. These differ from the original writ in the following particulars; they issue not out of chancery, but out of the court of common law, into which the original writ is returnable; and, accordingly, are not under the great seal, but the private seal of the court; and they bear teste in the named of the chief justice of that court, and not in the name of the king himself. It may also be observed, that in common with all other writs issuing from the court of common law, during the progress of the suit, they are described as judicial writs, by way of distinction from the original one obtained from the chancery. 4 Bl. Com. 282. See further, as to the nature of those writs, 1 Tidd's Pr. 106-193, 4th edit.; 1 Sellon's Pr. 64-102.

WRIT OF PROCLAMATION, Engl. practice. A writ which issues, at the same time with the exigi facias, by virtue of Stat. 31 Eliz. c. 3, s. 1, by which the sheriff is commanded to make proclamations in the statute prescribed.

2. When it is not directed to the same sheriff as the writ of exigi facias is, it is called a foreign writ of proclamation. Lee's Dict. of Pr.; 4 Reev. Inst. 261.

WRIT OF QUARE IMPEDIT, English law. The remedy by which, where the right of a party to benefice is obstructed, he recovers the presentation; and is the form of action now constantly adopted to try a disputed title to an advowson. Booth, 223 1 Arch. Civ. Pl. 34.

WRIT OF RECAPTION, practice. This writ lies where, pending an action of replevin, the same distrainor takes, for the same supposed cause, the cattle or goods of the same distrainee. See F. N. B. 169.

2. This writ is nearly obsolete, as trespass, which is found to be a pre-ferable remedy, lies for the second taking; and, as the defendant cannot justify, the plaintiff must necessarily recover damages proportioned to the injury.

WRIT OF RIGHT, practice. The remedly appropriate to the case where a party claims the specific recovery of corporeal hereditaments in fee simple; founding his title on the right of property, or mere right, arising either from his own seisin, or the seisin of his ancestor or predecessor. F. N. B. 1 B 3 Bl. Com. 391.

2. At common law, a writ of right lies only against the tenant of the free-hold demanded. 8 Cranch, 239.

3. This writ brings into controversy only the rights of the parties in the suit, and a defence that a third person has better title will not avail. Id.; 7 Wheat. 27; 3 Pet. 133. See 2 Wheat. 306; 4 Bing. N. S. 711; 3 Bing. N. S. 434; 4 Scott, R. 209; 6 Scott, R. 435; Id. 738; 1 Bing. N. S. 597; 5 Bing. N. S. 161; 6 Ad. & Ell. 103; 1 H. Bl. 1; 5 Taunt. R. 326; 1 Marsh. R. 68; 2 Bos. & P. 570; 1 N. R. 64; 4 Taunt. R. 572; 3 Bing. R. 167; 2 W. Bl. Rep. 1261; 1 B. & B. 17; 2 Car. & P. 187; Id. 271 Holt, R. 657; 8 Cranch, 229; 3 Fairf. 312; 7 Wend. 250; 3 Bibb, 57; 3 Rand. 568 2 J. J. Marsh. 104; 2 A. K. Marsh. 396; 1 Dana, 410; 2 Leigh, R. 1 4 Mass. 64; 17 Mass. 74.

WRIT OF TRESPASS, practice. This writ lies where a party claims damages for a trespass committed against his person, or tangible and corporeal property. See Trespass.

WRIT OF TRESPASS ON THE CASE, practice. A writ which lies where a party sues for damages for any wrong or cause of complaint to which covenant or trespass will not apply. See 3 Woodd. 167; Steph. Pl. 15.

2. This action originates in the power given by the statute of Westm. 2, to the clerks of chancery to frame new writs in consimili casu with writs already known. Under this power they constructed many writs for different injuries, which were considered as in consimili casu, with, that is, to bear a certain analogy to a trespass. The new writs invented for the cases supposed to bear such analogy, have received, accordingly, the appellation of writs of trespass on the case, as being founded on the particular circumstances of the case thus requiring a remedy, and, to distinguish them from the old writ of trespass; 3 Reeves, 89, 243, 391; and the injuries themselves, which are the subjects of such writs, are not called trespasses, but have the general name of torts, wrong or grievances.

3. The writs of trespass on the case, though invented thus, pro re nata, in various forms, according to the nature of the different wrongs which respectively called them forth began nevertheless, to be viewed as constituting collectively a new individual form of action; and this new genus took its place, by the name of Trespass on the case, among the more ancient actions of debt, covenant, trespass, &c. Such being the nature of this action, it comprises, of course, many different species. There are two, however, of more frequent use than any other species of trespass on the case, or, perhaps, than any other firm of action whatever. These are assumpsit and trover. Steph. Pl. 15, 16.

WRIT OF TOLT, Eng. law. The name of a writ to remove proceedings on a writ of right patent from the court baron into the county court. 3 Bl. Commen-taries, App. No. 1, §2.

WRIT OF WASTE. The name of a writ to be issued against a tenant who has committed waste of the premises. There are several forms of this writ, that against a tenant in dower differs from the others. F. N. B. 125.

DEAD, DEATH BED OR DYING DECLARATIONS, DEAD-PLEDGE, DEAD LETTERS

DEAD, DEATH BED OR DYING DECLARATIONS, DEAD-PLEDGE, DEAD LETTERS

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DEAD Something which has no life; figuratively, something of no value.

DEAD BODY, crim. law. A corpse.

2. To take up a dead body without lawful authority, even for the purposes of dissection, is a misdemeanor, for which the offender may be indicted at common law. 1 Russ. on Cr. 414; 1 Dowl. & R. 13; Russ. & Ry. 366, ii. b; 2 Chit. Cr. Law, 35. This offence is punished by statute in New

GRAND, GRAND JURY...

GRAND, GRAND JURY...

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GRAND. An epithet frequently used to denote that the thing. to which it is joined is of more importance and dignity, than other things of the same name; as, grand assize, a writ in a real action to determine the right of property in land; grand cape, a writ used in England, on a plea of land, when the tenant makes default in appearance at the day given for the king to take the land into his hands; grand days, among the English lawyers, are those days in term which are solemnly kept in the inns of court and chancery, namely, Candlemas day, in Hilary term; Ascension day, in Easter term; and All Saint's day, in Michaelmas term; which days are dies non juridici. Grand distress is the name of a writ so called because of its extent, namely, to all. the goods and chattels of the party distrained within the county; this writ is believed to be peculiar to England. Grand Jury. (q. v.) Grand serjeantry, the name of an ancient English military tenure.

GRAND BILL OF SALE, Eng. law. The name of an instrument used for the transfer of a ship, while she is at sea; it differs from a common bill of sale. (q. v.) See 7 Mart. Lo. R. 318; 1 Harr. Cond. Lo. R. 567.

GRAND COUTUMIER. Two collections of laws bore this title. The one, also called the Coutumier of France, is a collection of the customs, usages, and forms of practice, which had been used from time immemorial in France: the other, called the Coutumier de Normandie, which indeed made a part of the former, with some alterations, was composed about the fourteenth of Henry II., in 1229, and is a collection of the Norman laws not as they stood at the Conquest of England, by William the Conqueror, but some time afterwards, and contains many provisions, probably borrowed from the old:English or Saxon laws. Hale's Hist. C. L. c. 6.

GRAND JURY, practice. A body of men, consisting of not less than twelve nor more than twenty-four, respectively returned by the sheriff of every county to every session of the peace, oyer and terminer and general gaol delivery, to whom indictments are preferred. 4 Bl. Com. 302; 1 Chit. C. L. 310, 1.

2. There is just reason to believe that this institution existed among the Saxons, Crabb's C. L. 35. By the constitutions of Clarendon, enacted 10 H. II. A. D. 1164, it is provided, that "if such men were suspected, whom none wished or dared to accuse, the sheriff, being thereto required by the bishop, should swear twelve men of the neighborhood, or village, to declare the truth" respecting such supposed crime; the jurors being summoned as witnesses or accusers, rather than judges. If this institution did not exist before, it seems to be pretty certain that this statute established grand juries, or recognized them, if they existed before.

3. A view of the important duties of grand juries will be taken, by considering, 1. The organization of the grand jury. 2. The extent of its jurisdiction. 3. The mode of doing business. 4. The evidence to be received. 5. Their duty to make presentments. 6. The secrecy to be observed by the grand jury.

4. - 1. Of the organization of the grand jury. The law requires that twenty-four citizens shall be summoned to attend on the grand jury; but in practice, not more than twenty-three are sworn, because of the inconvenience which else might arise, of having twelve, who are sufficient to find a true bill, opposed to twelve others who might be against it. 6 Adolph. & Ell. 236; S. C. 33 e. C. L. R. 66; 2 Caines, R. 98. Upon being called, all who present themselves are sworn, as it scarcely ever happens that all who are summoned are in attendance. The grand jury cannot consist of less than twelve, and from fifteen to twenty are usually sworn. 2 Hale, P. C. 161; 7 Sm. & Marsh. 58. Being called into the jurybox, they are usually permitted to select a foreman whom the court appoints, but the court may exercise the right to nominate one for them. The foreman then takes the following oath or affirmation, namely: "You A B, as foreman of this inquest for the body of the ______ of _________, do swear, (or affirm) that you will diligently inquire, and true presentments make, of all such articles, matters and things as shall be given you in charge, or otherwise come to your knowledge touching the present service; the commonwealth's counsel, your fellows and yhour own, you shall keep secret; you shall present no one for envy, hatred or malice; nor shall you leave any one unpresented for fear, favor, affection, hope of reward or gain; but shall present all things truly, as they come to your knowledge, according to the best of your understanding, (so help you God.") It will be perceived that this oath contains the substance of the duties of the grand jury. The foreman having been sworn or affirmed, the other grand jurors are sworn or affirmed according to this formula: "You 'and each of you do swear (or affirm) that the same oath (or affirmation) which your foreman has taken on his part, you and every one of you shall well and truly observe on your part." Being so sworn or affirmed, and having received the charge of the court, the grand jury are organized, and may proceed to the room provided for them to transact the business which may be laid before them. 2 Burr. 1088; Bac. Ab. Juries, A. The grand jury constitute a regular body until discharged by the court, or by operation of law, as where they cannot continue by virtue of an act of assembly beyond a certain day. But although they have been formally discharged by the court, if they have not separated, they may be called back, and fresh bills submitted to them; 9 C. & P. 43; S. C. 38 E. C. L. R. 2 8.

5. - 2. The extent of the grand jury's jurisdiction. Their jurisdiction is coextensive with that of the court for which they inquire; both as to the offences triable there, and the territory over which such court has jurisdiction.

6. - 3. The mode of doing business. The foreman acts as president, and the jury usually appoint one of their number to perform the duties of secretary. No records are to be kept of the acts of the grand jury, except for their own use, because, as will be seen hereafter, their proceedings are to be secret. Being thus prepared to enter upon their duties, the grand jury are supplied with bills of indictment by the attorney-general or other officer, representing the state or commonwealth against offenders. On these bills are endorsed the names of the witnesses by whose testimony they are supported. The witnesses are in attendance in another room, and must be called when wanted. Before they are examined as to their knowledge of the matters mentioned in the indictment, care must be taken that they have been sworn or affirmed. For the sake of convenience, they are generally sworn or affirmed in open court before they are sent to be examined, and when so qualified, a mark to that effect is made opposite their names.

7. In order to save time, the best practice is to find a true bill, as soon as the jury are satisfied that the defendant ought to be put upon his trial. It is a waste of time to examine any other witness after they have arrived at that conclusion. Twelve at least must agree, in order to find a true bill; but it is not required that they should be unanimous. Unless that number consent, the bill must be ignored. When a defendant is to be put upon his trial, the foreman must write on the back of the indictment "a true bill," sign his name as foreman, and date the time of finding. On the. contrary, where there is not sufficient evidence to authorize the finding of the bill, the jury return that they are ignorant whether the person accused committed the offence charged in the bill, which is expressed by the foreman endorsing on the bill "ignoramus," signing his name as before, and dating the time.

8. - 4. Of the evidence to be received. In order to, ascertain the facts which the jury have not themselves witnessed, they must depend upon the statement of those who know them, and who will testify to them. When the witness, from his position and ability, has been in a condition to know the facts about which he testifies, he is deserving of implicit confidence; if, with such knowledge, he has no motive for telling a false or exaggerated story, has intelligence enough to tell what he knows, and give a probable account of the transaction. If, on the other hand, from his position he could not know the facts, or if knowing them, he distorts them, he is undeserving of credit. The jury are the able judges of the credit and confidence to which a witness is entitled.

9. Should any member of the jury be acquainted with any fact on which the grand jury are to act, he must, before he testifies, be sworn or affirmed, as any other witness, for the law requires this sanction in all cases.

10. As the jury are not competent to try the accused, but merely to investigate the case so far as to ascertain whether he ought to be put on his trial, they cannot hear evidence in his favor; theirs is a mere preliminary inquiry; it is when he comes to be tried in court that he may defend himself by examining witnesses in his favor, and showing the facts of the case.

11. - 5. Of presentments. The jury are required to make true presentments of all such matters which may be given to them in charge, or which have otherwise come to their knowledge. A presentment, properly speaking, is the notice taken by the grand jury of any offence from their own knowledge, as of a nuisance, a libel, or the like. In these cases, the authors of the offence should be named, so that they may be indicted,

12. - 6. Of the secrecy to be observed by the grand jury. The oath which they have taken obliges them to keep secret the commonwealth's counsel, their fellows and their own. Although contrary to the general spirit of our institutions, which do not shun daylight, this secrecy is required by law for wise purposes. It extends to the votes given in any case, to the evidence delivered by witnesses, and the communications of the jurors to each other; the disclosure of these facts, unless under the sanction of law, would render the imprudent juror who should make them public, liable to punishment. Giving intelligence toa defendant that a bill has been found against him, to enable him to escape, is so obviously wrong, that no one can for a moment doubt its being criminal. The grand juror who should be guilty of this offence might, upon conviction, be fined and imprisoned. The duration of the secrecy appears not to be definitely settled, but it seems this injunction is to remain as long as the particular circumstances of each case require. In a case, for example, where a witness swears to a fact in open court, on the trial, directly in opposition to what he swore before the grand jury, there can be no doubt the injunction of secrecy, as far as regards this evidence, would be at an end, and the grand juror might be sworn to testify what this witness swore to in the grand jury's room, in order that the witness might be prosecuted for perjury. 2 Russ. Cr.. 616; 4 Greenl. Rep. 439; but see contra, 2 Halst. R. 347; 1 Car. & K. 519. Vide, generally, 1 Chit. Cr. Law, 162; 1 Russ. Cr. 291; 2 Russ. Cr. 616 2 Stark. Ev. 232, n. 1; 1 Hawk. 65, 500 2 Hawk. ch. 25; .3 Story, Const. §1778 2 Swift's Dig. 370; 4 Bl. Com. 402; Archb. Cr. Pl. 63; 7 Sm. Laws Penna. 685.

GRANDCHILDREN, domestic relations. The children of one's children. Sometimes these may claim bequests given in a will to children, though in general they can make no such claim. 6 Co. 16.

GRANDFATHER, domestic relations. The father of one's father or mother. The father's father is called the paternal grandfather; the mother's father is the maternal grandfather.

GRANDMOTHER, domestic relations. The mother of one's father or mother. The father's mother is called the paternal grandmother; the mother's mother is the maternal grandmother.

COMMISSION

COMMISSION

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COMMISSION, contracts, civ. law. When one undertakes, without reward, to do something for another in respect to a thing bailed. This term is frequently used synonymously with mandate. (q. v.) Ruth. Inst. 105; Halifax, Analysis of the Civil Law, 70. If the service the party undertakes to perform for another is the custody of his goods, this particular sort of, commission is called a charge.

2. In a commission, the obligation on his part who undertakes it, is to transact the business without wages, or any other reward, and to use the same care and diligence in it, as if it were his own.

3. By commission is also understood an act performed, opposed to omission, which is the want of performance of such an act; is, when a nuisance is created by an act of commission, it may be abated without notice; but when it arises from omission, notice to remove it must be given before it is abated. 1 Chit. Pr. 711. Vide dbatement of Nuisances; Branches; Trees.

COMMISSION, office. Persons authorized to act in a certain matter; as, such a matter was submitted, to the commission; there were several meetings before the commission. 4 B. & Cr. 850; 10 E. C. L. R. 459.

COMMISSION, crim. law. The act of perpetrating an offence. There are crimes of commission and crimes of omission.

COMMISSION, government. Letters-patent granted by the government, under the public seal, to a person appointed to an office, giving him authority to perform the duties of his office. The commission is not the appointment, but only evidence of it; and as soon as it is signed and sealed, vests the office in the appointee. 1 Cranch, 137; 2 N. & M. 357; 1 M'Cord, 233, 238. See Pet. C. C. R. 194; 2 Summ. 299; 8 Conn. 109; 1 Penn. 297; 2 Const. Rep. 696; 2 Tyler, 235.

COMMISSION, practice. An instrument issued by a court of, justice, or other competent tribunal, to authorize a person to take depositions, or do any other act by authority of such court, or tribunal, is called a commission. For a form of a commission to take.depositions, see Gresley, Eq. Ev. 72.

COMMISSION OF LUNACY, A writ issued out of chancery, or such court as may have jurisdiction of the case directed to a proper officer, to inquire whether a person named therein is a lunatic or not. 1 Bouv. Inst. n. 382, et seq.

COMMISSION MERCHANT. One employed to sell goods for another on commission; a factor. He is sometimes called. a consignee, (q. v.) and the goods he receives are a consignment. 1 Bouv. Inst. n. 1013.

COMMISSION OF REB ELLION, chan. prac. The name of a writ issuing out of chancery, generally directed to four special commissioners, named by the plaintiff, commanding them to attach the defendant wheresoever he may be found within the state, as a rebel and contemner of the law, so as to have him in chancery on a certain day therein named. This writ may be issued after an attachment with proclamation, and a return of non est inventus. Blake's Ch. Pr. 102; Newl. Ch. Pr. 14.

COMMISSIONER, officer. One who has a lawful commission to execute a public office. In a more restricted sense it is one who is authorized to execute. a particular duty, as, commissioner of the revenue, canal commissioner. The term when used in this latter sense is not applied, for example, to a judge. There are commissioners, too, who have no regular commissions and derive their author from the elections held by the people. County commissioners, in Pennsylvania, are officers of the latter kind.

COMMISSIONER OF PATENTS. The name of an officer of the United States whose duties are detailed in the act to promote the useful arts, &c., which will be found under the article Patent.

COMMISSIONERS OF BAIL, practice. Officers appointed by some courts to take recognizances of bail in civil cases.

COMMISSIONERS OF SEWERS, Eng. law. Officers whose duty it is to repair sea banks aud walls, survey rivers, public streams, ditches, &c.

COMMISSlONS, contracts, practice. An allowance of compensation to an agent, factor, executor, trustee or other person who manages the affairs of others, for his services in performing the same.

2. The right of agents, factors or other contractors to commissions, may either be the subjeot of a special contract, or rest upon the quantum meruit. 9 C. & P. 559; 38 E. C. L. R. 227; 3 Smith's R. 440; 7 C. & P. 584; 32 E. C. L. R. 641; Sugd. Vend. Index, tit. Auctioneer

3. This compensation is usually the allowance of a certain, per centage upon the actual amount or value of the business done. When there is a usage of trade at the particular place, or in the particular business in which the agent is engaged, the amount of commissions allowed to auctioneers, brokers and factors, is regulated by such usage. 3 Chit. Com. Law, 221; Smith on Mere. Law, 54; Story, Ag. 326; 3 Camp. R. 412; 4 Camp. R. 96; 2 Stark. 225, 294.

4. The commission of an agent is either ordinary or del credere. (q. v.) The latter is an increase of the ordinary commission, in consideration of the responsibility which the agent undertakes, by making himself answerable for the solvency of those with whom he contracts. Liverm. Agency, 3, et seq.; Paley, Agency, 88, et seq.

5. In Pennsylvania, the amount missions allowed to executors and trustees is generally fixed at five per centum on the sum received and paid out, but this is varied according to circumstances. 1 9 S. & R. 209, 223; 4 Whart. 98; 1 Serg. & Rawle, 241. In England, no commissions are allowed to executors or trustees. 1 Vern. R. 316, n. and the cases there: cited. 4 Ves. 72, n.

CHANCELLOR, CHANCERY

CHANCELLOR, CHANCERY

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CHANCELLOR. An officer appointed to preside over a court of chancery, invested with various powers in the several states.

2. The office of chancellor is of Roman origin. He appears, at first, to have been a chief scribe or secretary, but he was afterwards invested with judicial power, and had superintendence over the other officers of the empire. From the Romans, the title and office passed to the church, and therefore every bishop of the catholic church has, to this day, his chancellor, the principal judge of his consistory. When the modern kingdoms of Europe were established upon the ruins of the empire, almost every state preserved its chancellor, with different jurisdictions and dignities, according to their different constitutions. In all he seems to have had a supervision of all charters, letters, and such other public instruments of the crown, as were authenticated in the most solemn manner; and when seals came into use, he had the custody of the public seal.

3. An officer bearing this title is to be found in most countries of Europe, and is generally invested with extensive authority. The title and office of chancellor came to us from England. Many of our state constitutions provide for the appointment of this officer, who is by them, and by the law of the several states, invested with power as they provide. Vide Encyclopedie, b. t.; Encycl.. Amer. h. t.; Dict. de Jur. h. t.; Merl. Rep. h. t.; 4 Vin. Ab. 374; Blake's Ch. Index, h. t.; Woodes. Lect. 95.

CHANCERY. The name of a court exercising jurisdiction at law, but mainly in equity.

2. It is not easy to determine how courts of equity originally obtained the jurisdiction they now exercise. Their authority, and the extent of it, have been subjects of much question, but time has firmly established them; and the limits of their jurisdiction seem to be in a great degree fixed and ascertained. 1 Story on Eq. ch. 2; Mitf. Pl. Introd.; Coop. Eq. Pl. Introd. See also Butler's Reminiscences, 38, 40; 3 Bl. Com. 435; 2 Bin. 135; 4 Bin. 50; 6 Bin. 162; 2 Serg. & R. 356; 9 Serg. & R. 315; for the necessity, origin and use of courts of chancery.

3. The judge of the court of chancery, often called a court of equity, bears the title of chancellor. The equity jurisdiction, in England, is vested, principally, in the high court of chancery. This court is distinct from courts of law. " American courts of equity are, in some instances, distinct from those of law, in others, the same tribunals exercise the jurisdiction both of courts of law and equity, though their forms of proceeding are different in their two capacities. The supreme court of the United States, and the circuit courts, are invested with general equity powers, and act either as court's of law or equity, according to the form of the process and the subject of adjudication. In some of the states, as New York, Virginia, and South Carolina, the equity court is a distinct tribunal, having its appropriate judge, or chancellor, and officers. In most of the states, the two jurisdictions centre in the same judicial officers, as in the courts of the United States; and the extent of equity jurisdiction and proceedings is very various in the different states, being very ample in Connecticut, New York, New Jersey, Maryland, Virginia, and South Carolina, and more restricted in Maine, Massachusetts, Rhode Island, and Pennsylvania. But the salutary influence of these powers on the judicial administration generally, by the adaptation of cbancery forms and modes of proceeding to many cases in which a court of law affords but an imperfect remedy, or no remedy at all, is producing a gradual extension of them in those states where they have been, heretofore, very limited."

4. The jurisdiction of a court of equity differs essentially from that of a court of law. The remedies for wrongs, or for the enforcement of rights, may be distinguished into two classes those which are administered in courts of law, and those which are administered in courts of equity. The rights secured by the former are called legal; those secured by the latter are called equitable. The former are said to be rights and remedies at common law, because recognized and enforced in courts of common law. The latter are said to be rights and remedies in equity, because they are administered in courts of equity or chancery, or by proceedings in other courts analogous to those in courts of equity or chancery. Now, in England and America, courts of common law proceed by certain prescribed forms, and give a general judgment for or against the defendant. They entertain jurisdiction only in certain actions, and give remedies according to the particular exigency of such actions. But there are many cases in which a simple judgment for either party, without qualifications and conditions, and particular arrangements, will not. do entire justice, ex aequo et bono, to either party. Some modification of the rights of both parties is required; some restraints on one side or the other; and some peculiar adjustments, either present or future, temporary or perpetual. Now, in all these cases, courts of common law have no methods of proceeding, which can accomplish such objects. Their forms of actions and judgment are not adapted to them. The proper remedy cannot be found, or cannot be administered to the full extent of the relative rights of all parties. Such prescribed forms of actions are not confined to our law. They were known in the civil law; and the party could apply them only to their original purposes. In other cases, he had a special remedy. In such cases, where the courts of common law cannot grant the proper remedy or relief, the law of England and of the United States (in those states where equity is administered) authorizes an application to the courts of equity or chancery, which are not confined or limited in their modes of relief by such narrow regulations, but which grant relief to all parties, in cases where they have rights, ex aequo et bono, and modify and fashion that relief according to circumstances. The most general description of a court of equity is, that it has jurisdiction in cases where a plain, adequate and complete remedy cannot be had at law that is, in common law courts. The remedy must be plain; for, if it be doubtful and obscure at law, equity will assert a jurisdiction. So it must be adequate at law; for, if it fall short of what the party is entitled to, that founds a jurisdiction in equity. And it must be complete; that is, it must attain its full end at law it must reach the whole mischief and secure the whole right of the party, now and for the future otherwise equity will interpose, and give relief. The jurisdiction of a court of equity is sometimes concurrent with that of courts of, law and sometimes it is exclusive. It exercises concurrent jurisdiction in cases where the rights are purely of a legal nature, but where other and more efficient aid is required than a court of law can afford, to meet the difficulties of the case, and ensure full redress. In some of these cases courts of law formerly refused all redress but now will grant it. But the jurisdiction having been once justly acquired at a time when there was no such redress at law, it is not now relinquished. The most common exercise of concurrent jurisdiction is in cases of account, accident, dower, fraud, mistake, partnership, and partition. The remedy is here often more complete and effectual than it can be at law. In many cases falling under these heads, and especially in some cases of fraud, mistake and accident, courts of law cannot and do not afford any redress; in others they do, but not always in so perfect a manner. A court of equity also is assistant to the jurisdiction of courts of law, in many cases, where the latter have no like authority. It will remove legal impediments to the fair decisiou of a question depending at law. It will prevent a party from improperly setting up, at a trial, some title or claim, which would be inequitable. It will compel him to discover, on his own oath, facts which he knows are material to the rights of the other party, but which a court of law cannot compel the party to discover. It will perpetuate the testmony of witnesses to rights and titles, which are in danger of being lost, before the, matter can be tried. It will provide for the safety of property in dispute pending litigation. It will counteract and control, or set aside, fraudulent judgments. It will exercise, in many cases, an exclusive jurisdiction. This it does in all cases of morely equitable rights, that is, such rights as are not recognized in courts of law. Most cases of trust and confidence fall under this head. Its exclusive jurisdiction is also extensively exercised in granting special relief beyond the reach of the common law. It will grant injunctions to prevent waste, or irreparable injury, or to secure a settled right, or to prevent vexatious litigations, or to compel the restitution of title deeds; it will appoint receivers of property, where it is in danger of misapplication it will compel the surrender of securities improperly obtained; it will prohibit a party from leaving the country in order to avoid a suit it will restrain any undue exercise of a legal right, against conscience and equity; it will decree a specific performance of contracts respecting real estates; it will, in many cases, supply the imperfect execution of instruments, and reform and alter them according to the real intention of the parties; it will grant relief in cases of lost deeds or securities; and, in all cases in which its interference is asked, its general rule is, that he who asks equity must do equity. If a party, therefore, should ask to have a bond for a usurious debt given up, equity could not decree it, unless he could bring into court the money honestly due without usury. This is a very general and imperfect outline of the jurisdiction of a court of equity; in respect to which it has been justly remarked, that, in matters within its exclusive jurisdiction, where substantial justice entitles the party to relief, but the positive law is silent, it is impossible to define the boundaries of that jurisdiction, or to enumerate, with precision, its various principles." Ency. Am. art. Equity. Vide Fonb. Eq.; Story on Eq.; Madd. Ch. Pr.; 10 Amer. Jur. 227; Coop. Eq. Pl.; Redesd. Pl.; Newl. Cb. Practice; Beame's Pl. Eq.; Jeremy on Eq.; Encycl. Amer. article Equity, Court.

CERTIFICATE, CERTIFICATION or CERTIFICATE OF ASSISE

CERTIFICATE, CERTIFICATION or CERTIFICATE OF ASSISE

    4.7.17  

CERTIFICATE, practice. A writing made in any court, and properly authenticated, to give notice to another court of anything done therein; or it is a writing by which an officer or other person bears testimony that a fact has or has not taken place.

2. There are two kinds of certificates; those required by the law, and those which are merely voluntary. Of the first kind are certificates given to an insolvent of his discharge, and those given to aliens, that they have been naturalized. Voluntary certificates are those which are not required by law, but which are given of the mere motion of the party. The former are evidence of the facts therein mentioned, while the latter are not entitled to any credit, because the factscertified, may be proved in the usual way under the solemnity of an oath or affirmation. 2 Com. Dig. 306; Ayl. Parerg. 157; Greenl. Ev. 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.

CONSULTATION

CONSULTATION

    4.7.17  

CONSULTATION, practice. A conference between the counsel or attorneys engaged on the same side of a cause, for the purpose of examining their case, arranging their proofs, and removing any difficulties there may be in their way.

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

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

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

COMMON, COMMON ASSURANCES, COMMON CARRIER...

COMMON, COMMON ASSURANCES, COMMON CARRIER...

    3.7.17  

COMMON. or right of common, English law. An encorporeal hereditament, which consists in a profit which a man has in the lands of another. 12 S. & R. 32; 10 Wend. R. 647; 11 John. R. 498; 2 Bouv. Inst. 1640, et seq.

2. Common is of four sorts; of pasture, piscary, turbary and estovers. Finch's Law, 157; Co. Litt. 122; 2 Inst. 86; 2 Bl. Com. 32.

3. - 1. Common of pasture is a right of feeding one's beasts on another's land, and is either appendant, appurtenant, or in gross.

4. Common appendant is of common right, and it may be claimed in pleading as appendant, without laying a prescription. Hargr. note to 2 Inst. 122, a note.

5. Rights of common appurtenant to the claimant's land are altogether independent of the tenure, and do not arise from any absolute necessity; but may be annexed to lands in other lordships, or extended to other beasts besides. such as are generally commonable.

6. Common in gross, or at large, is such as is neither appendant nor appurtenant to land, but is annexed to a man's person. All these species of pasturable common, may be and usually are limited to number and time; but there are also commons without stint, which last all the year. 2 Bl. Com. 34.

7. - 2. Common of piscary is the liberty of fishing in another man's water. lb. See Fishery.

8. - 3. Common of turbary is the liberty of digging turf in another man's ground. Ib.

9.-4. Common of estovers is the liberty of taking necessary wood-for the use or furniture of a house or farm from another man's estate. Ib.; 10 Wend. R. 639. See Estovers.

10. The right of common is little known in the United States, yet there are some regulations to be found in relation to this subject. The constitution of Illinois provides for the continuance of certain commons in that state. Const. art. 8, s. 8.

11. All unappropriated lands on the Chesapeake Bay, on the Shore of the sea, or of any river or creek, and the bed of any river or creek, in the eastern parts of the commonwealth, ungranted and used as common, it is declared by statute in Virginia, shall remain so, and not be subject to grant. 1 Virg. Rev. C. 142.

12. In most of the cities and towns in the United States, there are considerable tracts of land appropriated to public use. These commons were generally laid out with the cities or towns where they are found, either by the original proprietors or by the early inhabitants. Vide 2 Pick. Rep. 475; 12 S. & R. 32; 2 Dane's. Ab. 610; 14 Mass. R. 440; 6 Verm. 355. See, in general, Vin. Abr. Common; Bac. Abr. Common; Com. Dig. Common; Stark. Ev. part 4, p. 383; Cruise on Real Property, h. t.; Metc. & Perk. Dig. Common, and Common lands and General fields.

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

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

COMMON ASSURANCES. Title by deeds are so called, because, it is said, every man ' s estate is assured to him; these deed's or instruments operate either as conveyances or as charges.

2.- 1. Deeds of conveyance are, first, at common law, and include feoffments, gifts, grants, leases, exchanges, partition's, releases, confirmations, surrenders, assignments, and defeasances; secondly, deeds of conveyance under the statute of uses, as covenants to stand seised to uses, bargains and sale, lease and release, deeds to lead or declare uses, and deeds of appointment and revocation.

3. - 2. Deeds which do not convoy, but only charge or discharge lands, are obligations, recognizances, and defeasances. Vide Assurance; Deed.

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