COIF. A head-dress. In England there are certain serjeants at law, who are called serjeants of the coif, from the lawn coif they wear on their heads under their thin caps when they are admitted to that order.
COIN, commerce, contracts. A piece of gold, silver or other metal stamped by authority of the government, in order to determine its value, commonly called money. Co. Litt. 207; Rutherf. Inst. 123. For the different kinds of coins of the United States, see article Money. As to the value of foreign coins, see article Foreign Coins.
COLLATERAL, collateralis. From latus, a side; that which is sideways, and not direct.
COLLATERAL ASSURANCE, contracts. That which is made over and above the deed itself.
COLLATERAL FACTS evidence. Facts unconnected with the issue or matter in dispute.
2. As no fair and reasonable inference can be drawn from such facts, they are inadmissible in evidence, for at best they are useless, and may be mischievous, because they tend to distract the attention of the jury, and to mislead them. Stark. Ev. h. t.; 2 Bl. Rep. 1169; 1 Stark Ev. 40; 3 Bouv. Inst. n. 3087.
3. It is frequently difficult to ascertain a priori, whether a particular fact offered in evidence, will, or will not clearly appear to be material in the progress of the cause, and in such cases it is usual in practice for the court to give credit to the assertion of the counsel who tenders such evidence, that the facts will turn out to be material; but this is always within the sound discretion of the court. It is the duty of the counsel, however, to offer evidence, if possible, in such order that each part of it will appear to be pertinent and proper at the time it is offered; and it is expedient to do so, as this method tends to the success of a good cause.
4. When a witness is cross-examined as to collateral facts, the party cross-examining will be bound by the answer, and he cannot, in general, contradict him by another witness. Rosc. Ev. l39.
COLLATERAL ISSUE, practice, pleading. Where a criminal convict pleads any matter, allowed by law, in bar of execution; as pregnancy, a pardon, and the like.
COLLATERAL KINSMEN, descent, distribution. Those who descend from one and the same common ancestor, but not from one another; thus brothers and sisters are collateral to each other; the uncle and the nephew are collateral kinmen, and cousins are the same. The term collateral is used in opposition to the phrase lineal kinsmen. (q. v.)
COLLATERAL SECURITY, contracts. A separate obligation attached to another contract, to guaranty its performance. By this term is also meant the transfer of property or of other contracts to insure the performance of a principal engagement. The property or securities thus conveyed are also called collateral securities. 1 Pow. Mortg. 393; 2 Id. 666, n. 871; 3 Id. 944, 1001.
COLLATERAL WARRANTY, contracts, descent. Where the heir's title to the land neither was, nor could have been, derived from the warranting ancestor; and yet barred the heir from ever claiming the land, and also imposed upon him the same obligation of giving the warrantee other lands, in case of eviction, as if the warranty were lineal, provided the heir had assets. 4 Cruise, Real Prop. 436.
2. The doctrine of collateral warranty, is, according to Justice Story, one of the most unjust, oppressive and indefensible, in the whole range of the common law. 1 Sumn. R. 262.
3. By the statute of 4 & 5 Anne, c. 16, 21, all collateral warranties of any land to be made after a certain day, by any ancestor who has no estate of inheritance in possession in the same, were made void against the heir. This Statute has been reenacted in New. York; 4 Kent, Com. 460, 3d ed.; and in New Jersey. 3 Halst. R. 106. It has been adopted and is in force in Rhode Island; 1 Sumn. R. 235; and in Delaware. Harring. R. 50. In Kentucky and Virginia, it seems that collateral warranty binds the heir to the extent of assets descended. 1 Dana, R. 59. In Pennsylvania, collateral warranty of the ancestor, with sufficient real assets descending to the heirs, bars them from recovering the lands warranted. 4 Dall. R. 168; 2 Yeates, R. 509; 9 S. & R. 275. See 1 Sumn. 262; 3 Halst. 106; Harring. 50; 3 Rand. 549; 9 S. & R. 275; 4 Dall. 168; 2 Yeates, 509; 1 Dana, 50.
COLLATIO BONORUM, descent, distribution. Where a portion or money advanced to a son or daughter, is brought into botchpot, in order to have an equal distributive share of the ancestor's personal estate. The same rule obtains in the civil law. Civil Code of Louis. 1305; Diet. de Jur. mot Collation; Merlin Rep. mot Collation.
COLLATION, descents. A term used in the laws of Louisiana. Collation -of goods is the supposed or real return to the mass of the succession, which an heir makes of the property he received in advance of his share or otherwise, in order that such property may be divided, together with the other effects of the succession. Civil Code of Lo. art. 1305.
2. As the object of collation is to equalize the heirs, it follows that those things are excluded from collation, which the heir acquired by an onerous title from the ancestor, that is, where he gave a valuable consideration for them. And upon the same principle, if a co-heir claims no share of the estate, he is not bound to collate. Qui non vult hereditatem, non cogitur ad collationem. See Id. art. 1305 to 1367; And Hotchpot.
COLLATION, eccl. law. The act by which the bishop, who has the bestowing of a benefice, gives it to an incumbent. T. L.
COLLATION, practice. The comparison of a copy with its original, in order to ascertain its correctness and conformity; the report of the officer who made the comparison, is also called a collation.
COLLATION OF SEALS. Where, on the same label, one seal was set on the back or reverse of the other, this was said to be a collation of seals. Jacob. L. D. h. t.
COLLECTOR, officer. One appointed to receive taxes or other impositions; as collector of taxes; collector of militia fines, &c. A collector is also a person appointed by a private person to collect the credits due him. Metc. & Perk. Dig. h. t.
COLLECTORS OF THE CUSTUMS. Officers of the United States, appointed for the term of four years, but removable at the pleasure of the president. Act of May 15, 1820, sect. 1, 3 Story's U. S. Laws, 1790.
2. The duties of a collector of customs are described in general terms, as follows: " He shall receive all reports, manifests and documents, to be made or exhibited on the entry of any ship or vessel, according to the regulations of this act shall record in books, to be kept for the purpose, all manifests; shall receive the entries of all ships or vessels, and of the goods, wares and merchandise imported in them; shall, together with the naval officer, where there is one, or alone, where there is none, estimate the amount of duties payable thereupon, endorsing the said amounts upon the respective entries; shall receive all moneys paid for duties, and shall take bonds for securing the payment thereof; shall grant all permits for the unlading and delivery of goods; shall, with the approbation of the principal officer of the treasury department, employ proper persons as weighers, gaugers, measurers and inspectors, at the several ports within his district; and also, with the like approbation, provide, at the public expense, storehouses for the safe keeping of goods, and such scales, weights and measures, as may be necessary." Act of March 2,1799) s. 21, 1 Story, U. S. Laws, 590. Vide, for other duties of collectors, 1 Story, U. S. Laws, 592, 612, 620, 632, 659, and vol. 3, 1650, 1697, 1759, 1761, 1791, 1811, 1848, 1854; 10 Wheat. 246.
COLLEGE. A civil corporation, society or company, authorized by law, having in general a literary object. In some countries by college is understood the union of certain voters in *one body; such bodies are called electoral colleges; as, the college of electors or their deputies to the diet of Ratisbon; the college of cardinals. The term is used in the United States; as, the college of electors of president and vice-president, of the United States. Act of Congress of January 23, 1845.
COLLISION, maritime law. It takes place when two ships or other vessels run foul of each other, or when one runs foul of the other. In such cases there is almost. always a damage incurred.
2. There are four possibilities under which an accident of this sort may occur. 1. It may happen without blame being imputable to either party, as when the loss is occasioned by a storm, or any other vis major; in that case the loss must be borne by the party on whom it happens to light, the other not being responsible to him in, any degree.
3. - 2. Both parties may be to blame, as when there has been a want of due diligence or of skill on both sides; in such cases, the loss must be apportioned between them, as having been occasioned by the fault of both of them. 6 Whart. R. 311..
4. - 3. The suffering party may have been the cause of the injury, then he must bear the loss.
5. - 4. It may have been the fault of the ship which ran down the other; in this case the injured party would be entitled to an entire corapensation from the other. 2 Dodson's Rep. 83, 85; 3 Hagg. Adm. R. 320; 1 .How. S. C. R. 89. The same rule is applied to steamers.. Id. 414.
6. - 5. Another case has been put, namely, when there has been some fault or neglect, but on which side the blame lies, is uncertain. In this case, it does not appear to be settled whether the loss shall be apportioned or borne by the suffering party opinions on this subject are divided.
7. A collision between two ships on the high seas, whether it be the result of accident or negligence, is, in all cases, to be deemed a peril of the seas within the meaning of a policy of insurance. 2 Story, R. 176; 3 Sumn. R. 889. Vide, generally, Story, Bailm. 607 to 612; Marsh.. Ins. B. 1, c. 12, s. 2; Wesk. Ins. art. Running Foul; Jacobsen's Sea Laws, B. 4, c. 1; 4 Taunt. 126; 2 Chit. Pr. 513, 535; Code de Com. art. 407; Boulay-Paty, Cours de Dr. Commercial, tit. 12, s. 6; Pard. n. 652 to 654; Pothier, Avaries, n. 155; 1 Emerig. Assur. ch. 12, 14.
COLLISTRIGIUM. The pillory.
COLLOCATION, French law. The act by which the creditors of an estate are arranged in the order in which they are to be paid according to law. The order in which the creditors-are placed, is also called collocation. Merl. Rep. h. t. Vide Marshalling Assets.
COLLOQUIM, pleading. A discourse a conversation or conference.
2. In actions of slander, it is generally true that an action does not lie for words, on account of, their being merely disgraceful to a person in his office, profession or trade; unless it be averred, that at the time of publishing the words, there was a colloquium concerning the office, profession or trade of the plaintiff.
3. In its technical sense, the term colloquium signifies an averment in a declaration that there was a conversation or discourse on the part of the defendant, which connects the slander with the office, profession or trade of the plaintiff; and this colloquium must extend to the whole of the prefatory matter to render the words actionable. 3 Bulst. 83. Vide Bac. Ab. Slander, S, n. 3; Dane's Ab. Index, h. t.; Com. Dig. Action upon the case for Defamation, G 7, 8, &c.; Stark. on Sland. 290, et seq.
COLLUSION, fraud. An agreement between two or more persons, to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law; as, for example, where the husband and wife collude to obtain a divorce for a cause not authorized by law. It is nearly synonymous with covin. (q. v.)
2. Collusion and fraud of every kind vitiate all acts which are infected with them, and render them void. Vide Shelf. on Mar. .& Div. 416, 450; 3 Hagg. Eccl. R. 130, 133; 2 Greenl. Ev. 51; Bousq. Dict. de Dr. mot Abordage.
COLONEL. An officer in the army, next below a brigadier general, bears this title.
COLONY. A union of citizens or subjects who have left their country to people another, and remain subject to the mother country. 3 W. C. C. R. 287. The country occupied by the colonists is also called a colony. A colony differs from a possession, or a dependency. (q. v.) For a history of the American colonies, the reader is referred to Story on the Constitution, book I.; 1 Kent, Com. 77 to 80; 1 Dane's Ab. Index, b. t.
COLOR, pleading. It is of two kinds, namely, express color, and implied color. 2. Express color. This is defined to be a feigned matter, pleaded by the defendant, in an action of trespass, from which the plaintiff seems to have a good cause of action, whereas he has in truth only an appearance or color of cause. The practice of giving express color in pleas, obtained in the mixed actions of assize, the writ of entry in the nature of assize, as well as in the personal action of trespass. Steph. on Plead. 230; Bac. Ab. Trespass, 14.
3. It is a general rule in pleading that no man shall be allowed to plead specially such plea as amounts to the general issue, or a total denial of the charges contained in the declaration, and must in such cases plead the general issue in terms, by which the whole question is referred to the jury; yet, if the defendant in an action of trespass, be desirous to refer the validity of his title to the court, rather than to the jury; he may in his plea stated his title specially, by expressly giving color of title to the plaintiff, or supposing him to have an appearance of title, had indeed in point of law, but of which the jury are not competent judges. 3 Bl. Com. 309. Suppose, for example, that the plaintiff wag in wrongful possession of the close, without any further appearance of title than the possession itself, at the time of the trespass alleged, and that the defendants, entered upon him in assertion of their title: but being unable to set forth this title in the pleading, in consequence of the objection that would arise for want of color, are driven to plead the general issue of not guilty. By this plea an issue is produced whether the defendants are-guilty or not of the trespass; but upon the trial of the issue, it will be found that the question turns entirely upon a construction of law. The defendants say they are not guilty of the trespasses, because they are not guilty of breaking the close of the plaintiff, as alleged in the declaration; and that they are not guilty of breaking the close of the plaintiff, because they themselves had the property in that close; and their title is. this, that the father of one of the defendants being seised of the close in fee, gave it in tail to his eldest son, remainder in tail to one of the defendants; the eldest son was disseised, but made continual claim till the death of the disseisor; after whose death, the descent being cast upon the heir, the disseisee entered upon the heir, and afterwards died, when the remainder took effect in the said defendant who demised to the other defendant . Now, this title involves a legal question; namely, whether continual claim will no preserve the right of entry in the disseisee, notwithstanding a descent cast on the heir of the disseisor. (See as to this point, Continual Claim.) The issue however is merely not guilty, and this is triable by jury; and the effect, therefore, would be, that a jury would have to decide this question of law, subject to the direction upon it, which they would receive from the court. But, let it be supposed that the defendants, in a view to the more satisfactory decision of the question, wish to bring it under the consideration of the court in bank, rather than have it referred to a jury. If they have any means of setting forth their title specially in the plea, the object will be attained; for then the plaintiff, if disposed to question the sufficiently of the title, may demur to the plea, and thus refer the question to the decision of the judges. But such plea if pleaded simply, according to the state of the fact, would be informal for want of color; and hence arises a difficulty.
4. The pleaders of former days, contrived to overcome this difficulty in the following singular manner. In such case as that supposed, the plea wanting implied color, they gave in lieu of it an express one, by inserting a fictitious allegation of some colorable title in the plaintiff, which they, at the same time avoided by the preferable title of the defendant. S Step . Pl. 225 Brown's Entr. 343, for a form of the plea. Plowd. Rep. 22 b.
5. Formerly various suggestions of apparent right, might be adopted according to the fancy of the pleader; and though the same latitude is, perhaps, still available, yet, in practice, it is unusual to resort to any except certain known fictions, which long usage has applied to the particular case for example, in trespass to land, the color universally given is that of a defective charter of the demise. See, in general, 2 Saund. 410; 10 Co. 88; Cro. Eliz. 76; 1 East, 215; Doct. Pl. 17; Doct. & Stud. lib. 2, c. 53; Bac. Abr. Pleas, I 8; Trespass, I 4; 1 Chit. Pl. 500 Steph. on Pl. 220.
6. Implied color. That in pleading which admits by implication, an apparent right in the opposite party, and avoids it by pleading some new matter by which that apparent right is defeated. Steph. Pl. 225.
7. It is a rule that every pleading by way of confession and avoidance, must give color; that is, it must admit an apparent right in the opposite party, and rely, therefore, on some new matter by which that apparent right is defeated. For example, where the defendant pleads a release to an action for breach of covenant, the tendency of the plea is to admit an apparent right in the plaintiff, namely, that the defendant did, as alleged in the declaration, execute the deed and break the covenant therein contained, and would therefore, prima facie, be liable on that ground; but shows new matter not before disclosed, by which that apparent right is done away, namely, that the plaintiff executed to him a release. Again, if the plaintiff reply that Such release was obtained by duress, in his, replication, he impliedly admits that the defendant has, prima facie, a good defence, namely, that such release was executed as alleged in the plea; and that the defefadant therefore would be discharged; but relies on new matter by which the plea is avoided, namely, that the release was obtained by duress. The plea, in this case, therefore, gives color to the declaration, and the replication, to the plea. But let it be supposed that the plaintiff has replied, that the release was executed by him, but to another person, and not to the defendant; this would be an informal replication wanting color; because, if the release were not to the defendant there would not exist even an apparent defence, requiring the allegation of new matter to avoid it, and the plea might be sufficiently answered by a traverse, denying that the deed stated in the plea is the deed of the plaintiff. See Steph. Pl. 220; 1 Chit. Pl. 498; Lawes, Civ. Pl. 126; Arch. Pl. 211; Doct. Pl. 17; 4 Vin. Abr. 552; Bac. Abr. Pleas, &e. I 8; Com. Dig. Pleader, 3 M 40, 3-M 41. See an example of giving color in pleading in the Roman law, Inst. lib. 4, tit 14, De replicantionibus.
COLOR OR OFFICE, criminal law. A wrong committed by an officer under the pretended authority of his office; in some cases the act amounts to a misdemeanor, and the party may then be indicted. In other cases, the remedy to redress the wrong is by an action.
COLT. An animal of the horse species, whether male or female, not more than four years old. Russ. & Ry. 416.
COMBAT, Eng. law. The form of a forcible encounter between two or more persons or bodies of men; an engagement or battle. A duel.
COMBINATION. A union of different things. A patent may be taken out for a new combination of existing machinery, or machines. See 2 Mason, 112; and Composition of matter.
2. By combination is understood, in a bad sense, a union of men for the purpose of violating the law.
COMBUSTIO DOMORUM. Burning of houses; arson. Vide 4 Bl. Com. 372.
COMES, pleading. In a plea, the defendant says, " And the said C D, by E F, his attorney, comes, and defends, &c. The word comes, venit, expresses the appearance of the defendant , in court. It is taken from the style of the entry of the proceedings on the record, and formed no part of the viva voce pleading. It is, accordingly, not considered as, in strictness, constituting a part of the Plea. 1 Chit. Pl. 411; Steph. Pl. 432.
COMES, offices. A Count. An officer during the middle ages, who possessed civil and military authority. Sav. Dr. Rom. Moy. age, n. 80.
2. Vice-comes, the Latin name for sheriff, was originally the lieutenant of the comes.
COMITATUS. A county. Most of the states are divided into counties; some, as Louisiana, are divided into parishes.
COMITES. Persons who are attached to a public minister, are so called. As to their privileges, see 1 Dall. 117; Baldw. 240; and Ambassador.
COMITY. Courtesy; a disposition to accomodate.
2. Courts of justice in one state will, out of comity, enforce the laws of another state, when by such enforcement they will not violate their laws or inflict. an injury on some one of their own citizens; as, for example, the discharge of a debtor under the insolvent laws of one state, will be respected in another state, where there is a reciprocity in this respect.
3. It is a general rule that the municipal laws of a country do not extend beyond its limits, and cannot be enforced in another, except on the principle of comity. But when those laws clash and interfere with the rights of citizens, or the laws of the countries where the parties to the contract seek to enforce it, as one or the other must give way, those prevailing where the relief is sought must have the preference. 2 Mart. Lo. Rep. N. S. 93; S. C. 2 Harr. Cond. Lo. Rep. 606, 609; 2 B. & C. 448, 471; 6 Binn. 353; 5 Crancb, 299; 2 Mass. 84; 6 Mass. 358; 7 Mart. Lo. R. 318. See Conflict of Laws; Lex loci contractus.
COMMAND. This word has several meanings. 1. It signifies an order; an apprentice is bound to obey the lawful command of his master; a constable may command rioters to keep the peace. 2. He who commands another to do an unlawful act, is accessary to it. 3 Inst. 51, 57; 2 Inst. 182; 1 Hayw.
3. Command is also equivalent to deputation or voluntary substitution; as, when a master employs one to do a thing, he is said to have Commanded him to do it; and he is responsible accordingly. Story Ag. 454, note.
COMMENCEMENT OF A SUIT OR ACTION. The suit is considered as commenced from the issuing of the writ; 3 Bl. Com. 273, 285; 7 T. R. 4; 1 Wils. 147; 18 John. 14; Dunl. Pr. 120; 2 Phil. Ev. 95; 7 Verm. R. 426; 6 Monr. R. 560; Peck's R. 276; 1 Pick. R. 202; Id. 227; 2 N. H. Rep. 36; 4 Cowen, R. 158; 8 Cowen, 203; 3 John. Cas. 133; 2 John. R. 342; 3 John. R. 42; 15 John. R. 42; 17 John. R. 65; 11 John. R. 473; and if the teste or date of the writ be fictitious, the true time of its issuing may be a and proved, whenever the purposes of justice require it; as in cases of a plea of tender or of the statute of limitations. Bac. Ab. Tender D; 1 Stra. 638; Peake's Ev. 259; 2 Saund. 1, n. 1. In Connecticut, the service of, the writ is the commencement of the action. 1 Root, R. 487; 4 Conn. 149; 6 Conn. R. 30; 9 Conn. R. 530; 7 Conn. R. 558; 21 Pick. R. 241; 2 C. & M. 408, 492 1 Sim. R. 393. Vide Lis Pendens.
COMENDAM, eccles. law. When a benefice or church living is void or vacant, it is commended to the. care of some sufficient clerk to be supplied, until it can be supplied with a pastor. He to whom the church is thus commended is said to hold in commendam, and he is entitled to the profits of the living. Rob. 144; Latch, 236.
2. In Louisiana, there is a species of limited partnership called a partnership in commendam. It is formed by a contract, by which one person or partnership agrees to furnish another person or partnership a certain amount, either in property or money, to be employed by the person or partnership to whom it is furnished, in his or their own name or firm, on condition of receiving a share in the profits, in the proportion determined by the contract, and of being liable to losses and expenses, to the amount furnished, and no more. Civ. Code of Lo. 2810. A similar partnership exists in France. Code de Comm. 26, 33; Sirey, tom. 12, part 2, p. 25. He who makes this contract is called in respect to those to whom he makes the advance of capital, a partner in commendam. Civ. Code of Lo. art. 2811.
COMMENDATARY. A person who holds a church living or presentment in commendam.
COMMENDATION. The act of recommending, praising. A merchant who merely commends goods he offers for sale, does not by that act warrant them, unless there is some fraud: simplex commendatio non obligat.
COMMENDATORS, eccl. law. Secular persons upon whom ecclesiastical benefices are bestowed, because they were commended and instructed to their oversight: they are merely trustees.
COMMERCE, trade, contracts. The exchange of commodities for commodities; considered in a legal point of view, it consists in the various agreements which have for their object to facilitate the exchange of the products of the earth or industry of man, with an intent to realize a profit. Pard. Dr. Coin. n. 1. In a narrower sense, commerce signifies any reciprocal agreements between two persons, by which one delivers to the other a thing, which the latter accepts, and for which he pays a consideration; if the consideration be money, it is called a sale; if any other thing than money, it is called exchange or barter. Domat, Dr. Pub. liv. 1, tit. 7, s. 1, n. 2. Congress have power by the constitution to regulate commerce with foreign nations and among the several states, and with the Indian tribes. 1 Kent. 431; Story on Corst. 1052, et seq. The sense in which the word commerce is used in the constitution seems not only to include traffic, but intercourse and navigation. Story, 1057; 9 Wheat. 190, 191, 215, 229; 1 Tuck. Bl. App. 249 to 252. Vide 17 John. R. 488; 4 John. Ch. R. 150; 6 John. Ch. R. 300; 1 Halst. R. 285; Id. 236; 3 Cowen R. 713; 12 Wheat. R. 419; 1 Brock. R. 423; 11 Pet. R. 102; 6 Cowen, R. 169; 3 Dana, R. 274; 6 Pet. R. 515; 13 S. & R. 205.
COMMISSARIATE. The whole body of officers who act in the department of the commissary, are called the, commissariate.
COMMISSARY. An officer whose principal duties are to supply the army witli provisions.
2. The Act of April 14, 1818, s. 6, requires that the president, by and with the consent of the senate, shall appoint a commissary general with the rank, pay, and emoluments of colonel of ordnance, and as many assistants, to be taken from the sub-alterns of the line, as the service may require. The commissary general and his assistants shall perform such duties, in the purchasing and issuing of rations to the armies of the United States, as the president may direct. The duties of these officers are further detailed in the subsequent sections of this act,, and in the Act of March 2, 1821.
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.
C0MMISSION, 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.
C0MMISSlONS, 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.
TO COMMIT. To send a person to prison by virtue of a warrant or other lawful writ, for the commission of a crime, offence or misdemeanor, or for a contempt, or non-payment of a debt.
COMMITMENT, criminal law, practice. The warrant. or order by which a court or magistrate directs a ministerial officer to take a person to prison. The commitment is either for further hearing, (q. v.) or it is final.
2. The formal requisites of the commitment are, 1st. that it be in writing, under hand, and seal, and show the authority of the magistrate, and the time and place of making it. 3 Har. & McHen. 113; Charl. 280; 3 Crancb, R. 448; see Harp. R. 313. In this case it is said a seal is not indispensable.
3. - 2d. It must be made in the name of the United States, or of the commonwealth, or people, as required by the constitution of the United States or, of the several states.
4. - 3d. It should be directed to the keeper of the prison, and not generally to carry the party to prison. 2 Str. 934; 1 Ld. Raym. 424.
5. - 4th. The prisoner should be described by his name and surname, or the name he gives as his.
6. - 5th. The commitment ought to state that the party has been charged on oath. 3 Cranch, R.448. But see 2 Virg. Cas. 504; 2 Bail. R. 290.
7. - 6th. The particular crime charged against the prisoner should be mentioned with convenient certainty. 3 Cranch, R. 449; 11 St. Tr. 304. 318; Hawk. B. 2, c. 16, s. 16 Chit. Cr. Law, 110.
8. - 7th. The commitment should point out the place of imprisonment, and not merely direct that the party be taken to prison. 2 Str. 934; 1 Ld. Ray. 424.
9. - 8th. In a final commitment, the command to the keeper of the prison should be to keep the prisoner "until he shall be discharged by due course of law," when the offence is not bailable; when it is bailable the gaoler should be, directed to keep the prisoner in his " said custody for want of sureties, or until he shall be discharged by due course of law." When the commitment is not final, it is usual to commit the prisoner " for further hearing." The commitment is also called a mittimus. (q. v.)
10. The act of sending a person to prison charged with the commission of a crime by virtue of such a warrant is also called a commitment. Vide, generally, 4 Vin. Ab. 576; Bac. Ab. h. t.; 4 Cranch, R. 129; 4 Dall. R. 412; 1 Ashm. R. 248; 1 Cowen, R. 144; 3 Conn. R. 502; Wright, R. 691; 2 Virg. Cas. 276; Hardin, R. 249; 4 Mass. R. 497; 14 John. R. 371 2 Virg. Cas. 594; 1 Tyler, R. 444; U. S. Dig. h. t.
COMMITTEE, practice. When a person has been found non compos, the law requires that a guardian should be appointed to take care of his person and estate; this guardian is called the committee.
2. It is usual to select the committee from the next of kin; Shelf. on Lun. 137; and in case of the lunacy of the husband or wife, the one who is of sound mind is entitled, unless under very special circumstances, to be the committee of the other. Id. 140. This is the committee of the person. For committee of the estate, the heir at law is most favored. Relations are referred to strangers, but the latter may be appointed. Id. 144.
3. It is the duty of the committee of the person, to take care of the lunatic; and the committee of the estate is bound to administer the estate faithfully, and to account for his administration. He cannot in general, make contracts in relation to the estate of the lunatic, or bind it, without a Special order of the court or authority that appointed him. Id. 179; 1 Bouv. Inst. n. 389-91.
COMMITTEE, legislation. One or more members of a legislative body to whom is specially referred some matter before that body, in order that they may investigate and examine into it and report to those who delegated this authority to them.
COMMITTITUR PIECE, Eng. law. An instrument in writing, on paper or parchment, which charges a person already in prison, in execution at the suit of, the person who arrested him.
COMMlXTION, civil law. This term is used to signify the act by which goods are mixed together.
2. The matters which are mixed are dry or liquid. In the commixtion of the
former, the matter retains its substance and individuality; in the latter,
the substances no longer remain distinct. The commixtion of liquids is called
confusion, (q. v.) and that of solids, a mixture. Lec. Elem. du Dr. Rom.
370, 371; Story, Bailm. 40; 1 Bouv. Inst. n. 506.
COMMODATE, contracts. A term used in the Scotch law, which is synonymous
to the Latin commodatum, or loan for use. Ersk. Inst. B. 3, t. 1, 20; 1
Bell's Com. 225; Ersk. Pr. Laws of Scotl. B. 3, t. 1, 9.
2. Judge Story regrets this term has not been adopted and naturalized, as mandate has been from mandatum. Story, Com. 221. Ayliffe, in his Pandects, has gone further, and terms the bailor the commodant, and the bailee the commodatory, thus avoiding those circumlocutions, which, in the common phraseology of our law, have become almost indispensable. Ayl. Pand. B. 4, t. 16, p. 517. Browne, in his Civil Law, vol. 1, 352, calls the property loaned "commodated property." See Borrower; Loan for use; Lender.
COMMODATUM. A contract, by which one of the parties binds himself to return to the other certain personal chattels which the latter delivers to him, to be used by him, without reward; loan -for use. Vide Loan for use.
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.
C0MMON 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.
C0MMON 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.
C0MMON 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.
C0MMON 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.
C0MMON 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.
COMMONALTY, Eng. law. This word signifies, 1st. the common people of England, as contradistinguished from the king and the nobles; 2d. the body of a society as the masters, wardens, and commonalty of such a society.
COMMONER. One who is entitled with others to the use of a common.
COMMONS, Eng. law. Those subjects of the English nation who are not noblemen. They are represented in parliament in the house of commons.
COMMONWEALTH, government. A commonwealth is properly a free state, or republic, having a popular or representative government. The term has been, applied to the government of Great Britain. It is not applicable to absolute governments. The states composing the United States are, properly, so many commonwealths.
2. It is a settled principle, that no sovereign power is amenable to answer suits, either in its own courts or in those of a foreign country, unless by its own consent. 4 Yeates, 494.
COMMORANCY, persons. An abiding dwelling, or continuing as an inhabitant in any place. It consists, properly, in sleeping usually in one place.,
COMMORANT. One residing or inhabiting a particular place. Barnes, 162.
COMMORIENTES. This Latin word signifies those wbo die at the same time, as, for example, by shipwreck.
2. When several persons die by the same accident, and there is no evidence as to who survived, the presumption of law is, they all died at the same time. 2 Phillim. R. 261 Fearne on Rem. iv.; 5 B. & Adol. 91; Cro. Eliz. 503; Bac. Ab. Execution, D; 1 Mer. R. 308. See Death; Survivor.