CESSET EXECUTIO. The staying of an execution.
2. When a judgment has been entered, there is sometimes, by the agreement of the parties, a cesset executio for a period of time fixed upon and when the defendant enters security for the amount of the judgment, there is a cesset executio until the time allowed by law has expired.
CESSET PROCESSUS, practice. An entry made on the record that there be a stay of the procas or proceedings.
2. This is made in cases where the plaintiff has become insolvent after action brought. 2 Dougl. 627.
CESSAVIT, Eng. law. An obsolete writ, which could formerly have been sued out when the defendant had for two years ceased or neglected to perform such service or to pay such rent as he was bound to do by his tenure, and had not upon his lands sufficient goods or cbattels to be distrained. F. N. B. 208.
CESSIO BONORUM, civil law. The relinquishment which a debtor made of his property for the benefit of his creditors.
2. This exempted the debtor from imprisonment, not, however, without leaving an ignominious stain on his reputation. Dig. 2, 4, 25; Id. 48, 19, 1; Nov. 4, c. 3, and Nov. 135. By the latter Novel, an honest unfortunate debtor might be discharged, by simply affirming that he was insolvent, without having recourse to the benefit of cession. By the cession the creditors acquired title to all the property of the insolvent debtor.
3. The cession discharged the debtor only to the extent of the property ceded, and he remained responsible for the difference. Dom. Lois Civ. liv. 4, tit. 5., s. 1, n. 2. Vide, for the law of Louisiana, Code, art. 2166, et seq. 2 M. R. 112; 2 L. R. 354; 11 L. R. 531; 5 N. S. 299; 2 L. R. 39; 2 N. S. 108; 3 M. R. 232; 4 Wheat. 122; and Abandonment.
CESSION, contracts. Yielding up; release.
2. France ceded Louisiana to the United States, by the treaty of Paris, of April 30, 1803 Spain made a cession of East and West Florida, by the treaty of February 22, 1819. Cessions have been severally made of a part of their territory, by New York, Virginia, Massachusetts, Connecticut) South Carolina, North Carolina, and Georgia. Vide Gord. Dig. art. 2236 to 2250.
CESSION, civil law. The, act by which a party assigns or transfers property to a other; an assignment.
CESSION, eccl. law. When an ecclesiastic is created bishop, or when a parson takes another benefice, without dispensation, the first benefice becomes void by a legal cession, or surrender. Cowel, h. t.
CESTUI. He. This word is frequently used in composition as, cestui que trust, cestui que vie, &c.
CESTUI QUE TRUST, A barbarous phrase, to signify the beneficiary of an estate held in trust. He for whose benefit another person is enfeoffed or seised of land or tenements, or is possessed of personal property. The cestui que trust is entitled to receive the rents and profits of the land; he may direct such conveyances, consistent with the trust, deed or will, as he shall choose, and the trustee (q. v.) is bound to execute them: he may defend his title in the name of the trustee. 1 Cruise, Dig. tit. 12, c. 4, s. 4; vide Vin. Ab. Trust, U, W, X, and Y 1 Vern. 14; Dane's Ab. Index, h. t.: 1 Story, Eq. Jur. 321, note 1; Bouv. Inst. Index, h. t.
CESTUI QUE VIE. He for whose life land is holden by another person; the latter is called tenant per auter vie, or tenant for another's life. Vide Dane's Ab. Index, h. t.
CESTUI QUE USE. He to whose use land is granted to another person the latter is called the terre-tenant, having in himself the legal property and possession; yet not to his own use, but to dispose of it according to the directions of the cestui que use, and to suffer him to take the profits. Vide Bac. Read. on Stat. of Uses, 303, 309, 310. 335, 349; 7 Com. Dig. 593.
CHAFEWAX , Eng, law. An officer in chancery who fits the wax for sealing, to the writs, commissions and other. instruments then made to be issued out. He is probably so called because he warms (chaufe) the wax.
CHAFFERS. Anciently signified wares and merchandise; hence the word chaffering, which is yet used for buying and selling, or beating down the price of an article. The word is used in stat. 3 Ed. III. c. 4.
CHAIRMAN. The presiding officer of a committee; as, chairman of the committee of ways and means. The person selected to preside over a popular meeting, is also called a chairman or moderator.
CHALDRON. A measure of capacity, equal to fifty-eight and two-third cubic feet nearly. Vide Measure.
CHALLENGE. This word has several significations. 1. It is an exception or objection to a juror. 2. A call by one person upon another to a single combat, which is said to be a challenge to fight.
CHALLENGE, criminal law. A request by one person to another, to fight a duel.
2. It is a high offence at common law, and indictable, as tending to a breach of the peace. It may be in writing or verbally. Vide Hawk. P. C. b. 1, c. 63, s. 3; 6 East, R. 464; 8 East, R. 581; 1 Dana, R. 524; 1 South.. R. 40; 3 Wheel. Cr. C. 245 3 Rogers' Rec. 133; 2 M'Cord, R. 334 1 Hawks. R. 487; 1 Const. R. 107. He who carries a challenge is also punishable by indictment. In most of the states, this barbarous practice is punishable by special laws.
3. In most of the civilized nations challenging another to fight. is a crime, as calculated to destroy the public peace; and those who partake in the offence are generally liable to punishment. In Spain it is punished by loss of offices, rents, and horrors received from the king, and the delinquent is incapable to hold them in future. Aso & Man. Inst. B. 2, t. 19, c. 2, 6. See, generally, 6 J. J. @larsh. 120; 1 Munf. 468; 1 Russ. on Cr. 275; 6 J. J. Marsh. 1 19; Coust. Rep. 10 7; Joy on Chal. passim.
CHALLENGE, practice. An exception made to jurors who are to pass on a trial; to a judge; or to a sheriff.
2. It will be proper here to consider, 1. the several kinds of challenges; 2. by whom they are to be made; 3. the time and manner of making them.
3. - 1. The several kinds of challenges may be divided into those which are peremptory, and those which are for cause. 1. Peremptory challenges are those 'which are made without assigning any reason, and which the court must allow. The number of these which the prisoner was allowed at common law, in all cases of felony, was thirty-five, or one under three full juries. This is regulated by the local statutes of the different states, and the number except in capital cases, has been probably reduced.
4. - 2. Challenges for cause are to the array or to the polls. 1. A challenge to the array is made on account of some defect in making the return to the venire, and is at once an objection to all the jurors in the panel. It is either a principal challenge, that is, one founded on some manifest partiality, or error committed in selecting, depositing, drawing or summoning the jurors, by not pursuing the directions of the acts of the legislature; or a challenge for favor.
5. - 2. A challenge to the polls is objection made separately to each juror as he is about to be sworn. Challenges to the polls, like those to the array, are either principal or to the favor.
6. First, principal challenges may be made on various grounds: 1st. propter defectum, on account of some personal objection, as alienage, infancy, old age, or the want of those qualifications required by legislative enactment. 2d. Propter affectum, because of some presumed or actual partiality in the juryman who is made the subject of the objection; on this ground a juror may be objected to, if he is related to either within the ninth degree, or is so connected by affinity; this is supposed to bias the juror's mind, and is only a presumption of partiality. Coxe, 446; 6 Greenl. 307; 3 Day, 491. A juror who has conscientious scruples in finding a verdict in a capital case, may be challenged. 1 Bald. 78. Much stronger is the reason for this challenge, where the juryman has expressed his wishes as to the result of the trial, or his opinion of the guilt or innocence of the defendant. 4 Harg. St. Tr. 748; Hawk. b. 2, c. 43, s. 28; Bac. Ab. Juries, E 5. And the smallest degree of interest in the matter to be tried is a decisive objection against a juror. 1 Bay, 229; 8 S. & R. 444; 2 Tyler, 401. But see 5 Mass. 90. 3d. The third ground of principal challenge to the polls, is propter delictum, or the legal incompetency of the juror on the ground of infamy. The court, when satisfied from their own examination, decide as to the principal challenges to the polls, without any further investigation and there is no occasion for the appointment of triers. Co. Litt. 157, b; Bac. Ab. Juries, E 12; 8 Watts. R. 304.
7. - Secondly. Challenges to the poll for favor may be made, when, although the juror is not so evidently partial that his supposed bias will be sufficient to authorize. a principal challenge, yet there are reasonable grounds to suspect that he will act under some undue influence or prejudice. The causes for such cballenge are manifestly very numerous, and depend, on a variety of circumstances. The fact to be ascertained is, whether the juryman is altogether indifferent as he stands unsworn, because, even unconsciously to himself, be may be swayed to one side. The line whicb separates the causes for principal challenges, and for challenge to the favor, is not very distinctly marked. That the juror has acted as godfather to the child of the prosecutor or defendant, is cause for a principal cballenge; Co. Litt. 157, a; while the fact that the party and the juryman are fellow servants, and that the latter has been entertained at the house of the former, is only cause for challenge to the favor. Co. Litt. 147; Bac. Ab. Juries, E 5. Challenges to the favor are not decided upon by the court, but are settled by triers. (q. v.)
8. - 2. The challenges may be made by the government, or those who represent it, or by the defendant, in criminal cases; or they may be made by either party in civil cases.
9. - 3. As to the time of making the challenge, it is to be observed that it is a general rule, that no challenge can be made either to the array or to the polls, until a full jury have made their appearance, because if that should be the case, the issue will remain pro defectu juratorum; and on this account, the party who intends to challenge the array, may, under such a contingency, pray a tales to complete the number, and then object to the panel. The proper time, of challenging, is between the appearance and the swearing of the jurors. The order of making challenges is to the array first, and should not that be supported, then to the polls; challenging any one juror, waives the right of challenging the array. Co. Litt. 158, a; Bac. Ab. Juries, E 11. The proper manner of making the challenge, is to state all the objections against the jurors at one time; and the party will not be allowed to make a second objection to the same juror, when the first has been over-ruled. But when a juror has been challenged on one side, and found indifferent, he may still be challenged on the other. When the juror has been cliallenged for cause, and been pronounced impartial, he may still be challenged peremptorily. 6 T. R. 531; 4 Bl. Com. 356; Hawk. b. 2, c. 46, s. 10.
10. As to the mode of making the challenge, the rule is, that a challenge to the array must be in writing; but when it is only to a single individual, the words " I challenge him " are sufficient in a civil case, or on the part of the defendant, in a criminal case when the challenge is made for the prosecution, the attorney-general says, We challenge him." 4 Harg. St. Tr. 740 Tr. per Pais, 172; and see Cro. C. 105; 2 Lil. Entr. 472; 10 Wentw. 474; 1 Chit. Cr. Law, 533 to 551.
11. Interest forms the only ground at common law for challenging a judge. It is no ground of challenge that he has given an opinion in the case before. 4 Bin. 349; 2 Bin. 454. By statute, there are in some states several other grounds of challenge. See Courts of the U. S., 633 64.
12. The sheriff may be challenged for favor as well as affinity. Co. Litt. 158, a; 10 Serg. &. R. 336-7. And the challenge need not be made to the court, but only to the prothonotary. Yet the Sheriff cannot be passed by in the direction of process without cause, as he is the proper officer to execute writs, except in case of partiality. Yet if process be directed to the coroner without cause, it is not void. He cannot dispute the authority of the court, but must execute it at his peril, and the misdirection is aided by thc statutes of amendment. 11 Serg. & R. 303.
CHAMBER. A room in a house.
2. It was formerly hold that no freehold estate could be had in a chamber, but it was afterwards ruled otherwise. When a chamber belongs to one person, and the rest of the house with the land is owned by another the two estates are considered as two separate but adjoining dwelling house's. Co. Litt. 48, b; Bro. Ab. Demand, 20; 4 Mass. 575; 6 N. H. Rep. 555; 9 Pick. R. 297; vide 3 Leon. 210; 3 Watts. R. 243.
3 . By chamber is also understood the place where an assembly is held; and, by the use of a figure, the assembly itself is called a chamber.
CHAMBER OF C0MMERCE. A society of the principal merchants and traders of a city, who meet to promote the general trade and commerce of the place. Some of these are incorporated, as in Philadelphia.
CHAMBERS, practice. When a judge decides some interlocutory matter, which has arisen in the course of the cause, out of court, he is said to make such decision at his chambers. The most usual applications at chambers take place in relation to taking bail, and staying proceedings on process.
CHAMPART, French law. By this name was formerly understood the grant of a piece of land by the owner to another, on condition that the latter would deliver to him a portion of the crops. IS Toull. n. 182.
CHAMPERTOR, crim. law. One who makes pleas or suits, or causes them to be moved, either directly or indirectly, and sues them at his proper costs, upon condition of having a part of the gain.
CHAMPERTY, crimes. A bargain with a plaintiff or defendant, campum partire, to divide the land or other matter sued for between them, if they prevail at law, the champertor undertaking to carry on the suit at his own expense. 1 Pick. 416; 1 Ham. 132; 5 Monr. 416; 4 Litt. 117; 5 John. Ch. R. 44; 7 Port. R. 488.
2. This offence differs from maintenance, in this, that in the latter the person assisting the suitor receives no benefit, while in the former he receives one half, or other portion, of the thing sued for. See Punishment; Fine; Imprisonment; 4 Bl. Com. 135.
3. This was an offence in the civil law. Poth. Pand. lib. 3, t. 1; App. n. 1, tom. 3, p. 104; 15 Ves. 139; 7 Bligh's R. 369; S. C. 20 E. C. L. R. 165; 5 Moore & P. 193; 6 Carr. & P. 749; S. C. 25 E. C. L. R. 631; 1 -Russ. Cr. 179 Hawk. P. C. b. 1 c. 84, s. 5.
4. To maintan a defendant may be champerty. Hawk. P. C. b. 1, c. 84, s. 8 3 Ham. 541; 6 Monr. 392; 8 Yerg. 484; 8 John. 479; 1 John. Ch. R. 444;, 7 Wend. 152; 3 Cowen, 624; 6 Co@ven, 90.
CHAMPION. He who fights for another, or takes his place in a quarrel; it also includes him who fights his own battles. Bract. lib. 4, t. 2, c. 12.
CHANCE, accident. As the law punishes a crime only when there is an intention to commit it, it follows that when those acts are done in a lawful business or pursuit by mere chance or accident, which would have been criminal if there had been an intention, express or implied, to commit them, there is no crime. For example, if workmen were employed in blasting rocks in a retired field, and a person not knowing of the circumstance should enter the field, and be killed by a piece of the rock, there would be no guilt in the workmen. 1 East, P. C. 262 Poster, 262; 1 Hale's P. C. 472; 4 Bl. Com. 192. Vide Accident.
CHANCE-MEDLEY, criminal law. A sudden affray. This word is sometimes applied to any kind of homicide by misadventure, but in strictness it is applicable to such killing only as happens se defendendo. (q. v.) 4 Bl. Com. 184.
CHANCELLOR. An officer appointed to preside over a court of chancery, invested with various powers in the several states.
2. The office of chancellor is of Roman origin. He appears, at 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.
CHANGE. The exchange of money for money. The giving, for example, dollars for eagles, dimes for dollars, cents for dimes. This is a contract which always takes place in the same place. By change is also understood small money. Poth. Contr. de Change, n. 1.
CHANGE TICKET. The name given in Arkansas to a species of promissory notes issued for the purpose of making change in small transactions. Ark. Rev. Stat. cb. 24.
CHAPLAIN. A clergyman appointed to say prayers and perform divine service. Each house of congress usually appoints it own cbaplain.
CHAPMAN. One whose business is to buy and sell goods or other things. 2 Bl. Com. 476.
CHAPTER, eccl. law. A congregation of clergymen. Such an assembly is termed capitulum, which signifies a little head it being a kind of head, not only to govern the diocese in the vacation of the bishopric, but also for other purposes. Co. Litt. 103.