CONCEALMENT, contracts. The unlawful suppression of any fact or circumstance, by one of the partis to a contract, from the other, which in justice ought to be made known. 1 Bro. Ch. R. 420; 1 Fonbl. Eq. B. 1, c. 3, 4, note (n); 1 Story, Eq. Jur. 207.
2. Fraud occurs when one person substantially misrepresents or conceals a material fact peculiarly within his own knowledge, in consequence of which a delusion exists; or uses a device naturally calculated to lull the suspicions of a careful man, and induce him to forego inquiry into a matter upon which the other party has information, although such information be not exclusively within his reach. 2 Bl. Com. 451; 3 Id. 166; Sugd. Vend. 1 to 10; 1 Com. Contr. 38; 3 B. & C. 623; 5 D. & R. 490; 2 Wheat. 183; 11 Id. 59; 1 Pet. Sup. C. R. 15, 16. The party is not bound, however, to disclose patent defects. Sugd. Vend. 2.
3. A distinction has been made between the concealment of latent defects in real and personal property. For example, the concealment by an agent that a nuisance existed in connexion with a house the owner had to hire, did not render the lease void. 6 IV. & M. 358. 1 Smith, 400. The rule with regard to personalty is different. 3 Camp. 508; 3 T. R. 759.
4. In insurances, where fairness is so essential to, the contract, a concealment which is only the effect of accident, negligence, inadvertence, or mistake, if material, is equally fatal to the contract as if it were intentional and fraudulent. 1 Bl. R. 594; 3 Burr. 1909. The insured is required to disclose all the circumstances within his own knowledge only, which increase the risk. He is not, however, bound to disclose general circumstances which apply to all policies of a particular description, notwithstanding they may greatly increase the risk. Under this rule, it has been decided that a policy is void, which was obtaineed by the concealment by the assured of the fact that he had heard that a vessel like his was taken. 2 P. Wms. 170. And in a case where the assured had information of "a violent storm" about eleven hours after his vessel had sailed, and had stated only that "there had been blowing weather and severe storms on the coast after the vessel had sailed" but without any reference to the particular storm it was decided that this was a concealment, which vitiated the policy. 2 Caines R. 57. Vide 1 Marsh. Ins: 468; Park, Ins. 276; 14 East, R. 494; 1 John. R. 522; 2 Cowen, 56; 1 Caines, 276; 3 Wash. C. C. Rep. 138; 2 Gallis. 353; 12 John. 128.
5. Fraudulent concealment avoids the contract. See, generally, Verpl. on Contr. passim; Bouv. Inst. Index, h. t.; Marsh. Ins. B. 1, c. 9; 1 Bell's Com. B. 2, pt. 3, c. 15 s. 3, 1; 1 M. & S. 517; 2 Marsh. R. 336.
CONCESSI, conveyancing. This is a Latin word, signifying, I have granted. It was frequently used when deeds and other conveyances were written in Latin.. It is a word of general extent, and is said to amount to a grant, feoffment, lease, release, and the like. 2 Saund. 96; Co. Lift. 301, 302; Dane's Ab. Index, h. t.; 5 Whart. R. 278.
2. It has been held that this word in a feoffment or fine implies no -warranty. Co. Lit. 384 Noke's Case, 4 Rep. 80; Vaughan's Argument in Hayes v. Bickoxsteth, Vaughan, 126; Butler"s Note, Co. Lit. 3 84. But see 1 Freem. 339, 414.
CONCESSION. A grant. This word is frequently used in this sense when applied to grants made by the French and Spanish governments in Louisiana.
CONCESSIMUS. A Latin word, which signifies, we have granted. This word creates a covenant in law, for the breach of which the grantors may be jointly sued. It imports no warranty of a freehold, but as in case of a lease for years. Spencer's Case, 5 Co. Rep. 16 Brown v. Heywood, 3 Keble, Rep. 617 Bac. Ab. Covenant, B. See Bac. Ab. officers, &c. E.
CONCESSOR. A grantor; one who makes a concession to another.
CONCILIUM. A day allowed to a defendant to make his defence; an imparlance, 4 Bl. Com. 356, n.; 3 T. R. 530.
CONCILIUM REGIS. The name of a tribunal which existed in England during the times of Edward I. and Edward H., composed of the judges and sages of the law. To them were referred cases of great difficulty. Co. Litt. 804.
CONCLAVE. An assembly of cardinals for the purpose of electing a pope; the place where the assembly is held is also called a conclave. It derives this name from the fact that all the windows and doors are looked, with the exception of a single panel, which admits a gloomy light.
CONCLUSION, practice. Making the last argument or address to the court or jury. The party on whom the onus probandi is cast, in general has the conclusion.
CONCLUSION, remedies. An estoppel; a bar; the act of a man by which he has confessed a matter or thing which he can no longer deny; as, for example, the sheriff is concluded by his return to a writ, and therefore, if upon a capias he return cepi corpus, he cannot afterwards show that he did not arrest the defendant, but is concluded by his return. Vide Plowd. 276, b; 3 Tho. Co. Litt. 600.
CONCLUSION TO THE COUNTRY, pleading. The tender of. an issue to be tried by a jury is called the conclusion to the country.
2. This conclusion is in the following words, when the issue is tendered by the defendant: " And of this the said C D puts himself upon the country." When it is tendered by the plaintiff, the formula is as follows: " And this the said A B prays may be inquired of by the country." It held, however, that there is no material difference between these two modes of expression, and that, if ponit se, be substituted for petit quod inquiratur, or vice versa, the mistake is unimportant. 10 Mod. 166.
3. When there is an affirmative on one side, and a negative on the other, or vice versa, the conclusion should be to the country. T. Raym. 98; Carth. 87; 2 Saund. 189; 2 Burr. 1022. So it is, though the affirmative and negative be not in express words, but only tantamount thereto. Co. Litt. 126, a; Yelv. 137; 1 Saund. 103; 1 Chit. Pl. 592; Com. Dig. Pleader, E 32.
CONCLUSIVE. What puts an end to a thing. A conclusive presumption of law, is one which cannot be contradicted even by direct and positive proof. Take, for example, the presumption that an infant is incapable of judging whether it is or is not against his interest; When infancy is pleaded and proved, the plaintiff cannot show that the defendant was within one day of being of age when the contract was made, and perfectly competent to make a contract. 3 Bouv. Inst. n. 3061.
CONCLUSIVE EVIDENCE. That which cannot be contradicted by any other evidence,; for example, a record, unless impeached for fraud, is conclusive evidence between the parties. 3 Bouv. Inst. n. 3061-62.
CONCLUSUM, intern. law. The form of an acceptance or conclusion of a treaty; as, the treaty was ratified purely and simply by a conclusum. It is the name of a decree of the Germanic diet, or of the aulic council.
CONCORD, estates, conveyances, practice. An agreement or supposed agreement between the parties in levying a fine of lands, in which the deforciant (or he who keeps the other out of possession,) acknowledges that the lands in question, are the right of the complainant;. and from the acknowledgment or recognition of right thus made, the party who levies the fine is called the cognisor, and the person to whom it is levied, the cognisee. 2 Bl. Com. 350; Cruise, Dig. tit. 35, c. 2, s. 33; Com. Dig. Fine, E 9.
CONCORDATE. A convention; a pact; an agreement. The term is generally confined to the agreements made between independent government's; and, most usually applied to those between the pope and some prince.
CONCUBINAGE. This term has two different significations; sometimes it means a species of marriage which took place among the ancients, and which is yet in use in some countries. In this country it means the act or practice of cobabiting as man and woman, in sexual commerce, without the authority of law, or a legal marriage. Vide 1 Bro. Civ. Law, 80; Merl. Rep. b. t.; Dig. 32, 49, 4; Id. 7, 1, 1; Code, 5, 27, 12.
CONCUBINE. A woman who cohabits with a man as his wife, without being married.
TO CONCUR. In Louisiana, to concur, signifies, to claim a part, of the estate of an insolvent along with other claimants; 6 N. S. 460; as " the wife concurs with her husband's creditors, and claims a privilege over them."
CONCURRENCE, French law. The equality of rights, or privilege which several persons-have over the same thing; as, for example, the right which two judgment creditors, Whose judgments were rendered at the same time, have to be paid out of the proceeds of real estate bound by them. Dict. de Jur. h. t.
CONCURRENT. Running together; having the same authority; thus we say a concurrent consideration occurs in the case of mutual promises; such and such a court have concurrent jurisdiction; that is, each has the same jurisdiction.
CONCUSSION, civ. law. The unlawful forcing of another by threats of violence to give something of value. It differs from robbery in this, that in robbery the thing is taken by force, while in concussion it is obtained by threatened violence. Hein. Lec. El, 1071
CONDEDIT, eccl. law. The name of a plea, entered by a party to a libel filed in the ecclesiastical court, in which it is pleaded that the deceased made the will which is the subject of the suit, and that he was of sound mind. 2 Eng. Eccl. Rep. 438; 6 Eng. Eccl. Rep. 431.
CONDELEGATES. Advocates who have been appointed judges of the bigh court of delegates are so called. Shelf. on Lun. 310.
CONDEMNATION, mar. law. The sentence or judgment of a court of competent jurisdiction that a ship or vessel taken as a prize on the high seas, was liable to capture, and was properly and legally captured.
2. By the general practice of the law of nations, a sentence of condemnation is, at present, generally deemed necessary in order to divest the title of a vessel taken as a prize. Until this has been done the original owner may regain his property, although the ship may have been in possession of the enemy twenty-four hours, or carried infra praesidia. 1 Rob. Rep. 134; 3 Rob. Rep. 97, n.; Carth. 423; Chit. Law of Nat. 99, 100; 10 Mod. 79; Abb. on Sh. 14; Wesk. on Ins. h. t.; Marsh. on Ins. 402. A sentence of condemnation is generally binding everywhere. Marsh. on Ins. 402.
3. The term condemnation is also applied to the sentence which declares a ship to be unfit for service; this sentence and the grounds of it may, however, be re-examined and litigated by parties interested in disputing it. 5 Esp. N. P. C. 65; Abb. on Shipp. 4.
CONDEMNATION, civil law. A sentence of judgment which condemns some one to do, to give, or to pay something; or which declares that his claim or pretensions are unfounded. This word is also used by common lawyers, though it is more usual to say conviction, both in civil and criminal cases. It is a maxim that no man ought to be condemned unheard, and without the opportunity of being heard.
CONDICTIO INDEBITI, civil law. When the plaintiff has paid to the defendant by mistake what he was not bound to pay either in fact or in law, he may recover it back by an action called condictio indebiti. This action does not lie, 1. if the sum was due ex cequitate, or by a natural obligation; 2. if he who made the payment knew that nothing was due, for qui consulto dat quod non debetat, prcesumitur donare. Vide Quasi contract.
CONDICTION, Lat. condictio. This term is used in the civil law in the same sense as action. Condictio certi, is an action for the recovery of a certain thing, as our action of replevin, condictio incerti, is an action given for the recovery of an uncertain thing. Dig. 12 , 1.
CONDITION, contracts, wills. In its most extended signification, a condition is a clause in a contract or agreement which has for its object to suspend, to rescind, or to modify the principal obligation; or in case of a will, to suspend, revoke, or modify the devise or bequest. 1 Bouv. Inst. n. 730. It ii in fact by itself, in many cases, an agreement; and a sufficient foundation as an agreement in writing, for a bill in equity, praying for a specific performance. 2 Burr. 826. In pleading, according to the course of the common Iaw, the bond and its condition are to some intents and purposes, regarded as distinct things. 1 Saund. Rep. by Wms. 9 b. Domat has given a definition of a condition, quoted by Hargrave, in these words: "A condition is any portion or agreement which regulates what the parties have a mind should be done, if a case they foresee should come to pass." Co. Litt. 201 a.
2. Conditions sometimes suspend the obligation; as, when it is to have no effect until they are fulfilled; as, if I bind myself to pay you one thousand dollars ou condition that the ship Thomas Jefferson shall arrive in the United States from Havre; the contract is suspended until the arrival of the ship.
3. The condition sometimes rescinds the contract; as, when I sell you my horse, on condition that he shall be alive on the first day of January, and he dies before that time.
4. A condition may modify the contract; as, if I sell you two thousand bushels of corn, upon condition that my crop shall produce that much, and it produces only fifteen hundred bushels.
5. In a less extended acceptation, but in a true sense, a condition is a future and uncertain event, on the existence or non-existence of which is made to depend, eitther the accomplishment, the modification, or the rescission of an obligation or testamentary disposition.
6. There is a marked difference between a condition and a limitation. When a in is given generally, but the gift may defeated upon the happening of an uncertain event, the latter is called a condition but when it is given to be enjoyed until the event arrives, it is a limitation. See Limitation; Estates. It is not easy to say when a condition will be considered a covenant and when not, or when it will be holden to be both. Platt on Cov. 71.
7. Events foreseen by conditions are of three kinds. Some depend on the acts of the persons who deal together, as, if the agreement should provide that a partner should not join another partnership. Others are independent of the will of the parties, as, if I sell you one thousand bushels of corn,. on condition that my crop shall not be destroyed by a fortuitous event, or act of God. Some depend in part on the contracting parties and partly on the act of God, as, if it be provided that such merchandise shall arrive by a certain day.
8. A condition may be created by inserting the very word condition, or on condition, in the deed or agreement; there are, however, other words that will do so as effectually, as proviso, if, &c. Bac. Ab. Conditions, A.
9. Conditions are of various kinds; 1. as to their form, they are express or implied. This division is of feudal origin. 2 Woodes. Lect. 138. 2. As to their object, they are lawful or unlawful; 3. as to the time when they are to take effect, they are precedent or subsequent; 4. as to their nature, they are possible or impossible 5. as to their operation, they are positive or negative; 6. is to their divisibility, they are copulative or disjunctive; 7. as to their agreement with the contract, they are consistent or repugnant; 8. as to their effect, they are resolutory or suspensive. These will be severally considered.
10. An express condition is one created by express words; as for instance, a condition in a lease that if the tenant shall not pay the rent at the day, the lessor may reenter. Litt. 328. Vide Reentry.
11. An implied condition is one created by law, and not by express words; for example, at common law, the tenant for life holds upon the implied condition not to commit waste. Co. Litt. 233, b.
12 . A lawful or legal condition is one made in consonance with the law. This must be understood of the law as existing at the time of making the condition, for no change of the law can change the force of the condition. For example, a conveyance was made to the grantee, on condition that he should not aliens until be reached the age of twenty-five years. Before he acquired this age be aliened, and made a second conveyance after he obtained it; the first deed was declared void, and the last valid. When the condition was imposed, twenty-five was the age of majority in the state; it was afterwards changed to twenty-one. Under these circumstances the condition was held to be binding. 3 Miss., R. 40.
13. An unlawful or illegal condition is one forbidden by law. Unlawful conditions have for their object, lst. to do something malum in se, or malum prohibitum; 2d. to omit the performance of some duty required by law 3d. to encourage such act or omission. 1 P. Wms. 189. When the law prohibits, in express terms, the transaction in respect to which the condition is made, and declares it void, such condition is then void; 3 Binn. R. 533; but when it is prohibited, without being declared void, although unlawful, it is not void. 12 S. @ R. 237. Conditions in restraint of marriage are odious, and are therefore held to the utmost rigor and strictness. They are contrary to sound policy, and by the Roman law were all void. 4 Burr. Rep. 2055; 10 Barr. 75, 350; 3 Whart. 575.
14. A condition precedent is one which must be performed before the estate will vest, or before the obligation is to be performed. 2 Dall. R. 317. Whether a condition shall be considered as precedent or subsequent, depends not on the form or arrangement of the words, but on the manifest intention of the parties, on the fair construction of the contract. 2 Fairf. R. 318; 5 Wend. R. 496; 3 Pet, R. 374; 2 John. R. 148; 2 Cain es, R. 352; 12 Mod. 464; 6 Cowen, R. 627 9 Wheat. R. 350; 2 Virg. Cas. 138 14 Mass. R. 453; 1 J. J. Marsh. R. 591 6 J. J. Marsh. R. 161; 2 Bibb, R. 547 6 Litt. R. 151; 4 Rand. R. 352; 2 Burr. 900
15. A subsequent condition is one which enlarges or defeats an estate or right, already created. A conveyance in fee, reserving a life estate in a part of the land, and made upon condition that the grantee shall pay certain sums of money at divers times to several persons, passes the fee upon condition subsequent. 6 Greenl. R. 106. See 1 Burr. 39, 43; 4 Burr. 1940. Sometimes it becomes of great importance to ascertain whether the condition is precedent or subsequent. When a precedent condition becomes impossible by the act of God, no estate or right vests; but if the condition is subsequent, the estate or right becomes absolute. Co. Litt. 206, 208; 1 Salk. 170.
16. A possible condition is one which may be performed, and there is nothing in the laws of nature to prevent its performance.
17. An impossible condition is one which cannot be accomplished according to the laws of nature; as, to go from the United States to Europe in one day.; such a condition is void. 1 Swift's Dig. 93; 5 Toull. n. 242-247. When a condition becomes impossible by the act of God, it either vests the estate, or does not, as it is precedent or subsequent: when it is the former, no estate vests when the latter, it becomes absolute. Co. Litt. 206, a, 218, a; 3 Pet. R. 374; 1 Hill. Ab. 249. When the performance of the condition becomes impossible by the act of the party who imposed it, the estate is rendered absolute. 5 Rep. 22; 3 Bro. Parl. Cas. 359. Vide 1 Paine's R. 652; Bac. Ab. Conditions, M; Roll. Ab. 420; Co. Litt. 206; 1 Rop. Leg. 505; Swinb. pt. 4, s. 6; Inst. 2, 4, 10; Dig. 28, 7, 1; Id. 44, 7, 31; Code 6, 25, 1; 6 Toull. n. 486, 686 and the article Impossibility.
18. A positive condition requires that the event contemplated shall happen; as, If I marry. Poth. Ob. part 2, c. 3, art. 1, 1. 19. A negative condition requires that the event contemplated shall not happen as If I do not marry. Potb. Ob. n. 200.
20. A copulative condition, is one of several distinct-matters, the whole of which are made precedent to the vesting of an estate or right. In this case the entire condition must be performed, or the estate or right can never arise or take place. 2 Freem. 186. Such a condition differs from a disjunctive condition, which gives to the party the right to perform the one or the other; for, in this case, if one becomes impossible by the act of God, the whole will, in general, be excused. This rule, however, is not without exception. 1 B. & P. 242; Cro. Eliz. 780; 5 Co. 21; 1 Lord Raym. 279. Vide Conjunctive; Disjunctive.
21. A disjunctive condition is one which gives the party to be affected by it, the right to perform one or the other of two alternatives.
22. A consistent condition is one which agrees with other parts of the contract.
23. A repugnant condition is one which is contrary to the contract; as, if I grant to you a house and lot in fee, upon condition that you shall not aliene, the condition is repugnant and void, as being inconsistent with the estate granted. Bac. Ab. Conditions L; 9 Wheat. 325; 2 Ves. jr. 824.
24. A resolutory condition in the civil law is one which has for its object, when accomplished the revocation of the principal obligation. This condition does not suspend either the existence or the execution of the obligation, it merely obliges the creditor to return what he has received.
25. A suspensive condition is one which susends the fulfilment of the obligation until it has been performed; as, if a man bind himself to pay one -hundred dollars, upon condition that the ship Thomas Jefferson shall arrive from Europe. The obligation, in this case, is suspended until the arrival of the ship, when the condition having been performed, the obligation becomes absolute , and it is no longer conditional. A suspensive condition is in fact a condition precedent.
26. Pothier further divides conditions into potestative, casual and mixed.
27. A potestative condition is that which is in the power of the person in whose favor it is contracted; as, if I engage to give my neighbor a sum of money, in case he outs down a tree which obstructs my. prospect. Poth. Obl. Pt. 2, c. 3, art. 1, 1.
28. A casual condition is one which depends altogether upon chance, and not in the power of the creditor, as the following: if I have children; if I have no children; if such a vessel arrives in the United States, &c. Poth. Ob. n. 201.
29. A mixed condition is one which depends on the will of the creditor and of a third person; as, if you marry my cousin. Poth. Ob. n. 201. Vide, generally, Bouv. Inst. Index, h. t.
CONDITION, persons. The situation in civil society which creates certain relations between the individual, to whom it is applied, and one or more others, from which mutual rights and obligations arise. Thus the situation arising from marriage gives rise to the conditions of husband and wife that of paternity to the conditions of father and child. Domat, tom. 2, liv. 1, tit. 9, s. 1, n. 8.
2. In contracts every one is presume to know the condition of the person with whom he deals. A man making a contract with an infant cannot recover against him for a breach of the contract, on the ground that he was not aware of his condition.
CONDITIONAL OBLIGATION. One which is superseded by a condition under which it was created and which is not yet accomplished. Poth. Obl. n. 176, 198.
CONDITIONS OF SALE, contracts. The terms upon which the vendor of property by auction pro poses to sell it; the instrument containing these terms, when reduced to writing or printing, is also called the conditions of sale.
2. It is always prudent and advisable that the conditions of sale should be printed and exposed in the auction room; when so done, they are binding ou both parties, and nothing that is said at the time of sale, to add to or vary such printed conditions, will be of any avail. 1 H. Bl. 289 12 East, 66 Ves. 330; 15 Ves. 521; 2 Munf. Rep. 119; 1 Desauss. Ch. Rep. 573; 2 Desauss. Ch. R. 320; 11 John. Rep. 555; 3 Camp. 285. Vide forms of conditions of sale in Babington on Auctions, 233 to 243; Sugd. Vend. Appx. No. 4. Vide duction; ductioneer; Puffer.
CONDONATION. A term used in the canon law. It is a forgiveness by the husband of his wife, or by a wife of her husband, of adultery committed, with an implied condition that the injury shall not be repeated, and that the other party shall be treated with conjugal kindness. 1 Hagg. R. 773; 3 Eccl. Rep. 310. See 5 Mass. 320 5 Mass. 69; 1 Johns. Ch. R. 488.
2. It may be express or implied, as, if a husband, knowing of his wife's infidelity, cohabit with her. 1 Hagg. Rep. 789; 3 Eccl. R. 338.
3. Condonation is not, for many rea sons, held so strictly against a wife as against a husband. 3 Eccl. R. 830 Id. 341, n.; 2 Edw. R. 207. As all condonations, by operation of law, are expressly or impliedly conditional, it follows that the effect is taken off by the repetition of misconduct; 3 Eccl. R. 329 3 Phillim. Rep. 6; 1 Eccl. R. 35; and cruelty revives condoned adultery. Worsley v. Worsley, cited in Durant v. Durant, 1 Hagg. Rep. 733; 3 Eccl. Rep. 311.
4. In New York, an act of cruelty alone, on the part of the husband, does not revive condoned adultery, to entitle the wife to a divorce. 4 Paige's R. 460. See 3 Edw. R. 207.
5. Where the parties have separate beds, there must, in order to found condonation, be something of matrimonial intercourse presumed; it does not rest merely on the wife's not. withdrawing herself. 3 Eccl. R. 341, n.; 2 Paige, R. 108.
6. Condonation is a bar to a sentence of divorce. 1 Eccl. Rep. 284; 2 Paige, R. 108. In Pennsylvania, by the Act of the 13th of March, 1815, 7, 6 Reed's Laws of Penna. 288, it is enacted that " in any suit or action for divorce for cause of adultery, if the defendant shall allege and prove that the plaintiff has admitted the defendant into conjugal society or embraces, after he or she knew of the criminal fact, or that the plaintiff (if the husband) allowed of his wife's prostitutions, or received hire, for them, or exposed his wife to lewd company, whereby she became ensnared to the crime aforesaid, it shall be a good defence, and perpetual bar against the same." The same rule may be found, perhaps, in the codes of most civilized countries. Villanova Y Manes, Materia Criminal Forense, Obs. 11, c. 20, n. 4. Vide, generally, 2 Edw. 207; Dev. Eq. R. 352 4 Paige, 432; 1 Edw. R. 14; Shelf. on M. & D. 445; 1 John. Ch. R. 488 4 N. Hamp. R. 462; 5 Mass. 320.
CONDUCT, law of nations. This term is used in the phrase safe conduct, to signify the security given, by authority of the government, under the great seal, to a stranger, for his quietly coming into and passing out of the territories over which it has jurisdiction. A safe conduct differs from a passport; the former is given to enemies, the latter to friends or citizens.
CONDUCT MONEY. The money advanced to a witness who has been subpoenaed to enable him to attend a trial, i's so called.
CONDUCTOR OPERARUM, civil law. One who undertakes, for a reward, to perform a job or piece of work for another. See Locator Operis.