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of the owner require that he should be consulted, as he, as well as the captain is responsible for the acts of the crew. On board, the captain is invested with almost arbitrary power over the crew, being responsible for the abuse of his authority. Abb. on Shipp. 162. He may repair the ship, and, if he is not in funds to pay the expenses of such repairs, he may borrow money, when aboard, on the credit of his owners or of the ship. Abb. on Sh. 127, 8. In such cases, although contracting within the ordinary scope of his powers and duties, he is generally responsible as well as the owner. This is the established rule of the maritime law, introduced in favour of commerce; it has been recognized and adopted by the commercial nations of Europe, and is derived from the civil or Roman law. Abbott, Ship. 90; Story, Ag. § 116 to 123, § 294; Paley, Ag. bv Lloyd, 244; 1 Liverm. Ag. 70; Poth. Ob. n. 82; Ersk. Inst. 3, 3, 43; Dig. 4, 9, 1; Poth. Pand. lib. 14, tit. 1; 3 Sumn. R. 228. See Bell's Com. 505, 5th ed.
CAPTATOR, French law. The name which is sometimes given to him who by flattery and artifice endeavours to surprise testators and induce them to give legacies or devises, or to make him some other gift. Diet. de Jur.
CAPTION, practice, is that part of a legal instrument, as a commission, indictment, &c. which shows where, when, and by what authority it was taken, found or executed. In the English practice when an inferior court, in obedience to the writ of certiorari, returns an indictment in the K. B. it is annexed to the caption, then called a schedule. 1 Saund. 309, n. 2. Vide Dane's Ab. Index, h. t. Caption is another name for arrest.
CAPTIVE. By this term is understood one who has been taken;
it is usually applied to prisoners of war, (q. v.)
CAPTOR, war, is one who has taken property from an enemy; this term is also employed to designate one who has taken an enemy. Formerly goods taken in war were adjudged to belong to the captor, they are now considered to vest primarily in the state or sovereign, and belong to the individual captors only to the extent that the municipal laws provide. Captors are responsible to the owners of the property for all losses and damages, when the capture is tortious and without reasonable cause in the exercise of belligerent rights. But if the capture is originally justifiable, the captors will not be responsible, unless by subsequent misconduct they become trespassers ab initio. 1 Rob. R. 93, 96. See 2 Gall. 374; 1 Gall. 274; 1 Pet. Adm. Dec. 116; 1 Mason, R. 14.
CAPTURE, war, is the taking of property by one belligerent from another. To make a good capture of a ship, it must be subdued and taken by an enemy in open war, or by way of reprisals, or by a pirate, and with intent to deprive the owner of it. Capture may be with intent to possess both ship and cargo, or only to seize the goods of the enemy, or contraband goods which are on board. The former is the capture of the ship in the proper sense of the word; the latter is only an arrest and detention, without any design to deprive the owner of it. Capture is deemed lawful, when made by a declared enemy, lawfully commissioned and according to the laws of war; and unlawful, when it is against the rules established by the law of nations. Marsh. Ins. B. 1, c. 12, s. 4.
See generally, Lee on Captures, passim; 1 Chitty's Com. Law, 377 to 512; 2 Wood'des. 435 to 457; 2 Caines's C. Err. 158; 7 Johns. R. 449; 3 Caines's R. 155; 11 Johns. R. 241; 13 Johns. R. 161; 14 Johns. R. 227; 3 Wheat. 183; 4 Cranch, 43; 6 Mass. 197.
CAPUT LUPINUM, Eng. law, having the head of a wolf. An outlawed felon was said to have the head of a wolf, and might have been killed by any one legally. Now, such killing would be murder. 1 Hale, PI. C. 497.
CARCAN, punishment; this is a French word which signifies pillory, and is sometimes used in that sense; as is carcannum for a prison.
CARDINAL, eccl. law, is the title of an ecclesiastical prince, who has an active or passive voice in the conclave when a pope is elected.
CARDS, crim. law. Small square paste boards, generally of a fine quality on which are painted figures of various colours, and used for playing different games. The playing of cards for amusement is not forbidden, but gaming for money is unlawful; vide Faro bank, and Gaming.
CARGO, mar. law. The entire load of a ship or other vessel. Abb. on Sh. Index, h. t.; Merl. Rep. h. t. 2 Gill & John. 136.
CARNAL KNOWLEDGE, crim. law. This phrase is used to signify a sexual connexion; as, rape is the carnal knowledge of a woman, &c.
CARNALLY KNEW, pleadings. This is a technical phrase essential in an indictment to charge the defendant with the crime of rape: no other word or circumlocution will answer the same purpose as these words. Vide Ravished, and Bac. Ab. Indictment, G 1; Com. Dig. Indictment, G 6; 1 Hale, 632 ; 3 Inst. 60; Co. Litt. 137; 1 Chit. Cr. Law, *243. It has been doubted whether these words were indispensable, 1 East, P. C. 448, but it would be unsafe to omit them.
CARRAT, weights. A carrat is a
weight equal to four grains, in diamonds and the like. Jack L. Diet.
CARRIERS, contracts. There are two kinds of carriers, namely common carriers, (q. v.) who have been considered under another head; and private carriers. These latter are persons who, although they do not undertake to transport the goods of such as choose to employ them, yet agree to carry the goods of some particular person for hire, from one place to another. In such case the carrier incurs no responsibility beyond that of any ordinary bailee for hire, that is to say, the responsibility of ordinary diligence. 2 Bos. & Pull. 417 ; 4 Taunt. 787; Selw. N. P. 382, n.;
1 Wend. R. 272; 1 Hayw. R. 14;
2 Dana, R. 430; 6 Taunt. 577; Jones, Bailm. 121; Story on Bailm. § 495. But in Gordon v. Hutchinson, 1 Watts & Serg. 285, it was holden that a wagoner who carries goods for hire, contracts the responsibility of a common carrier, whether transportation be his principal and direct business, or only an occasional and incidental employment. To bring a person within the description of a common carrier, he must exercise his business as a public employment; he must undertake to carry goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire, as a business; not as a casual occupation pro hoc vice. 1 Salk. 249; 1 Bell's Com. 467. 1 Hayw. R. 14; 1 Wend. 272; 2 Dana, R. 430.
CARRYING AWAY, crim. law. To complete the crime of larceny, the thief must not only feloniously take the thing stolen, but carry it away. The slightest carrying away will be sufficient; thus to snatch a diamond from a lady's ear, which is instantly dropped among the curls of her hair; 1 Leach, 320; to remove sheets from a bed and carry them into an adjoining room, 1 Leach, 222, n; to take plate from a trunk, and lay it on the floor with intent to carry it away, lb.; and to remove a package from one part of a wagon to to another, with a view to steal it,l Leach, 236, have respectively been holden to be felonies. 2 Chit. Cr. Law, 919. Vide 3 Inst. 108, 109; 1 Hale, 507; Kel. 31 ; Rv. & Moody, 14; Bac. Ab. Felony,' (D); 4 Bl. Com. 231; Hawk. c. 32, s. 25. Where, however, there has not been a complete severance of the possession, it is not a complete carrying away. 2 East, P. C. 556; 1 Hale, 508; 2 Russ. on Cr. M. Vide Invito Domino; Larceny; Robbery: Taking.
CART BOTE, an allowance to the tenant of wood, sufficient for carts and other instruments of husbandry.
CARTE BLANCHE. The signature of an individual or more, on a white paper, with a sufficient space left above it to write a note or other writing. In the course of business, it not unfrcquently occurs that for the sake of convenience, signatures in blank are given, with authority to fill them up. These are binding upon the parties. Tide Ch. on Bills, 70. Vide Blank.
CARTEL, war. An agreement between two belligerent powers for the delivery of prisoners or deserters, and also a written challenge to a duel. Cartel ship, is a ship, commissioned in time of war to exchange prisoners, or to carry any proposals between hostile powers; she must carry no cargo, ammunitions, nor implements of war, except a single gun for signals. The conduct of ships of this description cannot be too narrowly watched. The service on which they are sent is so highly important to the interests of humanity, that it is peculiarly incumbent on all parties to take care that it should be conducted in such a manner as not to become a subject of jealousy and distrust between the two
nations. 4 Rob. R. 357, vide Merl. Rep. h. t.; Dane's Ab. c. 40, a, 6, § 7; Pet. C. C. R. 106.
CASE, practice, is a contested question before a court of justice; a suit or action; a cause. 9 Wheat. 738.
CASE, remedies, this is the name of an action, in very general use, which lies where a party sues for damages for any wrong or cause of complaint to which covenant or trespass will not lie. Steph. PI. 15; 3 Woodd. 167; Ham. N. P. 1. Vide Writ of trespass on the case. In its most comprehensive signification, case, includes assumpsit as well as an action in form ex delicto; but when simply mentioned, it is usually understood to mean an action in form ex delicto. 7 T. R. M. An action on the case lies to recover damages for torts not committed with force actual or implied, or having been occasioned by force, where the matter affected' was not tangible, or where the injury was not immediate but consequential; 11 Mass. 59, 137; 1 Yeates, 586; 6 S. & R. 348; 12 S. & R. 210 ; 18 John. 257; 19 John. 381 ; 6 Call, 44; 2 Dana, 378; 1 Marsh. 194; 2 H. & M. 423 ; Harper, 113; Coxe, 339; or where the interest in the property was only in reversion. 8 Pick. 235; 7 Conn. 328; 2 Green, 8; 1 John. 511 ; 3 Hawks, 246 ; 2 Murph. 61; 2 N. H. Rep. 430. In these several cases trespass cannot be sustained. 4 T. R. 489; 7 T. R. 9. Case is also the proper remedy for a wrongful act done under legal process regularly issuing from a court of competent jurisdiction. 2 Conn. 700; 11 Mass. 500; 6 Greenl. 421; 1 Bailey, 441, 457; 9 Conn. 141 ; 2 Litt. 234; 3 Conn. 537; 3 Gill & John. 377. Vide Regular and irregular process. It will be proper to consider, 1, in what case this action lies; 2, the pleadings; 3, the evidence; 4, the judgment.
§ 1. This action lies for injuries,
1, to the absolute rights of persons;
2, to the relative rights of persons;
3, to personal property; 4, to real property.
1. When the injury has been done to the absolute rights of persons by an act not immediate but consequential, as in the case of special damages arising from a public nuisance, Willes, 71 to 74; or where an encumbrance had been placed in a public street, and the plaintiff passing there received an injury; or for a malicious prosecution. See Malicious prosecution.
2. For injuries to the relative rights, as for enticing away an infant child, per quod servitium amisit, 4 Litt. 25; for criminal conversation, seducing or harbouring wives; debauching daughters, but in this case the daughter.must live with her father as his servant, see Seduction; or enticing away or harbouring apprentices or servants. 1 Chit. PI. 137;
2 Chit. Plead. 310, 319; when the seduction takes place in the husband or father's house, he may, at his election, have trespass or case. 6 Munf. 587; Gilmer, 33; but when the injury is done in the house of another, case is the proper remedy. 5 Greenl. 546.
3. When the injury to personal property is without force and not immediate, but consequential, or when the plaintiff's right to it is in reversion, as, where property is injured by a third person while in the hands of a hirer, 3 Camp. 187; 2 Murph. 62;
3 Hawks, 246, case is the proper remedv. 3 East, 593; Ld. Raym. 1399;' Str. 634; 1 Chit. PI. 138.
4. When the real property which has been injured is corporeal, where the injury is not immediate but consequential, as for example, putting a spout so near the plaintiff's land, as that the water runs upon it; 1 Chit. PI. 126, 141 ; Str. 634; or where the plaintiff's property is only in
reversion. When the injury has been done to incorporeal rights, as for obstructing a private way, or disturbing a party in the use of a pew, or for injury to a franchise, as a ferry, and the like, case is the proper remedy. 1 Chit. PI. 143.
§ 2. The declaration in case, technically so called, differs from a declaration in trespass, chiefly in this, that in case it must not in general state the injury to have been committed vi et armis, 3 Conn. 64; see 2 Ham. 169; 11 Mass. 57 ; Coxe, 339 ; after verdict, the words "with force and arms" will be rejected as surplusage. Harp. 122; and it ought not to conclude contra pacem. Com. Dig. Action on the case, C 3; the plea is usually the general issue, not guilty,
§ 3. Any matter may, in general, be given in evidence, under the plea of not guilty, except the statute of limitations. In cases of slander and a few other instances, however, this cannot be done. 1 Saund. 130, n. 1; Willes, 20. When the plaintiff declares in case, with averments appropriate to that form of action, and the evidence shows that the injury was trespass; or when he declares in trespass, and the evidence proves an injury for which case will lie, and not trespass, the defendant should be acquitted by the jury, or the plaintiff should be nonsuited. 5 Mass. 560; 16 Mass. 451; Coxe, 339; 3 John. 468.
§ 4. The judgment is, that the plaintiff recover a sum of money, ascertained by a jury, for his damages sustained by the committing of the grievances complained of in the declaration, and costs.
CASE STATED, practice, is an agreement in writing, between a plaintiff and defendant, that the facts in dispute between them, are as there agreed upon and mentioned. The facts being thus ascertained, it is left for the court to decide for which party is the law. As no writ of error lies on a judgment rendered on a case stated, Dane's Ab. c. 137, art. 4, n. § 7, it is usual in the agreement to insert a clause that the case stated shall be considered in the nature of special verdict. In that case, a writ of error lies on the judgment which may be rendered upon it. And a writ of error will also lie on a judgment on a case stated, when the parties have agreed to it. 8 Serg. & Rawle, 529. In another sense by -a case stated is understood a statement of all the facts of a case, together with the names of the witnesses, and a detail of the documents which are to support them. In other words, a brief, (q. v.)
CASH, commerce, money on hand which a merchant, trader or other person has to do business with. Cash price, in contracts, is the price of articles paid for in cash, in contradistinction of credit price, which is to be paid for some time after the sale. Pard. n. 85; Chipm. Contr. 110. In common parlance, bank notes are considered as cash; but bills receivable are not.
CASH BOOK, commerce, accounts, is one in which a merchant or trader enters an account of all the money, or paper moneys he receives or pays. An entry of the same thing ought to be made under the proper dates, in the journal. The object of the cash book is to afford a constant facility to ascertain the true state of a man's cash. Pard. n. 87.
CASHIER. An officer of a monied institution who is entitled by virtue of his office to take care of the cash or money of such institution. The cashier of a bank is usually entrusted with all the funds of the bank, its notes, bills, and other choscs in action, to be used from time to time for the ordinary and extraordinary exigencies of the bank. He usually receives directly, or through the subordinate officers, all moneys and notes of the
bank; delivers up all discounted notes and other securities, when they have been paid; draws checks to withdraw the funds of the bank where they have been deposited ; and as the executive officer of the bank, transacts much of the business of the institution. In general the bank is bound by the acts of the cashier within the scope of his authority, expressed or implied. 1 Pet. R. 46, 70; 8 Wheat. R. 300, 361 ; 5 Wheat. R. 326; 3 Mason's R. 505; 1 Breese, R. 45; 1 Monr. Rep. 179. But the bank is not bound by the declaration of the cashier, not within the scope of his authority; as when a note is about to be discounted by the bank, he tells a person that he will incur no risk nor responsibility by becoming an indorser upon such note. 6 Pet. R. 51; 8 Pet. R. 12. Vide 17 Mass. R. 1; Story on Ag. § 114, 115; 3 Halst. R. 1; 12 Wheat. R. 183; 1 Watts & Serg. 101.
TO CASHIER, punishment. To break; to deprive a military man of his office : example, every officer who shall be convicted before a general court martial, of having signed a false certificate relating to the absence of either officer or private soldier, or relative to his daily pay, shall be cashiered. Articles of war, art. 14.
CASSATION, French law, is a decision which emanates from the sovereign authority, and by which a sentence or judgment in the last resort is annulled. Merl. Rep. h. t; this jurisdiction is now given to the cour de cassation. This court is composed of fifty-two judges, including four presidents, an attorney-general, and six substitutes, bearing the title of advocates general, a chief clerk, four subordinate clerks, and eight huissiers. Its jurisdiction extends to the examination and superintendence of the judgments and decrees of the inferior court, as a court of errors, both in civil and criminal