Gambar halaman

cases. It is divided into three sections, namely, the section des requitet, the section civille, and the section criminalle. Merl. Rep. mot Cour de Cassation.

CASSETUR BREVE, practice. That the writ be quashed. This is the name of a judgment which is entered by the plaintiff when he cannot prosecute his writ with effect against the defendant in consequence of some allegation on his, the defendant's part, which puts an end to the proceeding, without paying costs to the defendant, and after which the plaintiff is enabled to commence new process. When a bill has been filed, he may enter a judgment of cassetur bill a. 3 Bl. Com. 340; and vide 5 T. R; 634; Gould's Plead. c. 5, § 139. Vide To quash.

CASTIGATORY, punishments, is an engine used to punish women who have been convicted of being common scolds; it is sometimes called the trebucket, tumbrel, ducking stool, or cucking stool. This barbarous punishment has perhaps never been inflicted in the United States. Vide Common Scold.

CASTING VOTE, legislation, is the vote given by the president or speaker of a deliberative assembly, when the votes of the other members are equal on both sides; the casting vote then decides the question. Dane's Ab. h. t.

CASTRATION, crim. law. The act of maliciously depriving a man of one or both his testes; though it usually indicates the deprivation of both. This is a mayhem, and punishable as such, though the patient consented to it. By the ancient law of England this crime was punished by retaliation, membrum pro membro, 3 Inst. 118. It is punished in the United States generally by fine and imprisonment. The civil law punished it- with death. Dig. 48, 8, 4, 2. For the French law, vide Code Penal,

Vol. I.—21.

art. 316. The consequences of cas. tration, when both testes have been removed, are impotence and sterility. 1 Beck's Med. Jur. 72.

CASU CONSIMILI, practice, is a writ of entry, granted when the tenant by the curtesy, or tenant for life, aliens in fee, or in tail, or for another's life. It may be brought by the reversioner, against the alienee, in the tenant's lifetime. The clerks in chancery framed this writ in likeness to the writ called in casu proviso, by authority of the statute Westm. 2, c. 24, hence its name, cam consimili, in a like case. Vide 3 Bl. Com. 51; 7 Co. 4; F. N. B. 206.

CASU PROVISO, practice, is a writ of entry given by the statute of Gloucester, c. 7, when a tenant in dower aliens in fee or for life. It might have been brought by the reversioner against the alienee. This is perhaps an obsolete remedy, having yielded to the writ of ejectment. F. N. B. 205; Dane's Ab. Index, h. t.

CASUAL EJECTOR, practice, torts. Formerly in the trial of right to lands by ejectment, was a person supposed casually or by accident to come upon the land, and turn out the lawful possessor; he was called the casual ejector. Originally in order to try the right by ejectment, several things were necessary to be made out before the court; first a title to the land in question, upon which the owner was to make a formal entry; and being so in possession he executed a lease to some third person or lessee, leaving him in possession; then the prior tenant or some other person, called the casual ejector, either by accident or by agreement beforehand, came upon the land and turned him out, and for this ouster or turning out, the action was brought. But these formalities are now dispensed with, and the trial relates merely to the title, the defendant being bound to acknowledge the lease, entry, and ouster. 3 Bl. Com. 202; Dane's Ab. Index, h. t.

CASUS OMISSUS, an omitted case. When a statute or an instrument of writing undertakes to foresee and to provide for certain contingencies, and through mistake, or on account of some other cause, a case remains to be provided for, it is said to be a casus omissus. For example, when a statute provided for the descent of intestates' estates, and omits a case, the estate descends as it did before the statute. 2 Binn. R. 279. Vide Dig. 38, 1, 44 and 55; lb. 38, 2, 10; Code, 6, 52, 21 and 30.

CATCHING BARGAIN, contracts, fraud, is an agreement made with an heir expectant, for the purchase of his expectancy, at an inadequate price. In such case, the heir is, in general, entitled to relief in equity, and may have the contract rescinded upon terms of redemption.

1 Vern. 167; 2 Cox, 80; 2 Ch. Ca. 136; 2 Vern. 121; 2 Freem. I11;

2 Vent. 359; 2 Rep. in Ch. 396; 1 P. Wms. 312; 3 P. Wms. 290,293, n.; 1 Cro. C. C. 7; 2 Atk. 133; 2 Swanst. 147, and the cases cited in the note; 1 Fonb. 140; 1 Supp. to Ves. Jr. 66; 2 lb. 361; 1 Vern. 320, n. It has been said that all persons dealing for a reversionary interest are subject to this rule, but it may be doubted whether the course of decisions authorises so extensive a conclusion, and whether, in order to constitute a title to relief, the reversioner must not combine the character of heir. 2 Swanst. 148, n. Vide 1 Ch. Pr. 112, 113, n., 458, 826, 83R, 839. A mere hard bargain is not sufficient ground for relief. The French law is in unison with these principles, an agreement which has for its object the succession of a man yet alive, is generally void. Merl. Rep. mots Succession Future. Vide also Dig. 14, 6, and Lesion.

CATCHPOLE, officer. This is a

nickname given to a sheriff's deputy, or to a constable, or other officer whose duty it is to arrest persons. He is so called because he catches by the poll or head, the party arrest-' ed.

CAUSA MATRIMONII PrieLOCUTI, Engl, law, is an obsolete writ which lies when a woman gives land to a man in fee simple, or for, a less estate, to the intent that he should marry her and he refuses upon request. New Nat. Bre. 455.

CAUSE, civ. law. This word has two meanings. 1. It signifies the delivery of the thing, or the accomplishment of the act which is the object of the convention. Datio vel factum, quibus ab una parte conventio impleri caepta est. 6 Toull. n. 13, 166.—2. It is the consideration or motive for making a contract. An obligation without a cause, or with a false or unlawful cause, has no effect; but an engagement is not the less valid, though the cause be not expressed. The cause is illicit, when it is forbidden by law, when it is contra bonos mores, or to public order. Dig, 2, 14, 7, 4; Civ. Code of Lo. a. 1887-1894; Code Civil, liv. 3, tit. 3, c. 2, s. 4, art.' 1131 1133; Toull. liv. 3, tit. 3, c. 2, s. 4.

CAUSE, contr. torts, crim. That which produces an effect. In considering a contract, an injury, or a crime, the law generally looks to the immediate, and not to any remote cause. Bac. Max. Reg. 1; Bac. Ab. Damages, E; Sid. 433; 2 Taunt. 314. If the cause is lawful, the party will be justified, if unlawful, he will be condemned. The following is an example of an immediate and remote cause. If Peter of malice prepense should discharge a pistol at Paul, and miss him, and then cast away the pistol and fly; and, being pursued by Paul, he turn round, and kill him with a dagger, the law considers the first as the impulsive cause, and Peter Would be guilty of murder. But if Peter, with his dagger drawn, had fallen down, and Paul in his haste had fallen upon it and killed himself, the cause of Paul's death would have been too remote to charge Peter as the murderer. Ib. In cases of insurance the general rule is that the immediate and not the remote cause of the loss is to be considered; causa proximo non remota spectator. This rule may in some cases apply to carriers. Story, Bailm. § 515. See also Domat. liv. 3, t. 5, s. 2, n. 4; Toull. liv. 3, n. 286; 6 Bing. R. 716; 6 Ves. 496; Pal. Ag. by Lloyd, 10; Story, Ag. § 200; 3 Sumn. R. 38.

CAUSE, pleading. The reason; the motive. In a replication de injuria, for example, the plaintiff alleges that the defendant of his own wrong, and without the cause by him in his plea alleged, did, &c. The word cause here means without the matter of excuse alleged, and though in the singular number, it puts in issue all the facts in the plea, which constitute but one cause. 8 Co. 67; 11 East, 451; 1 Chit. PI. 585.

CAUSE, practice, is a contested question before a court of justice; it is a suit or action. Causes are civil or criminal. Wood's Civ. Law, 302; Code 2, 4,16.

CAUTION, a term used in the civil law. It nearly corresponds with bail when given in the prosecution of suits or actions. The plaintiff is required to find caution to prosecute his suit; to pay costs, if the judgment be against him, and to confirm the acts of his attorney. Coop. Just. 647. The securities or cautions judicially required of the defendant, are, judicio sisti, to attend and appear during the pendency of the suit; de raio, to confirm the acts of his attorney or proctor ; judicium solvi, to pay the sum adjudged against him. Coop. Just. 647; Hall's Admiralty

Practice, 12; 2 Brown, Civ. Law, 356.

CAUTION, JURATORY, in the Scotch law. Juratory caution is that which a suspender swears is the best he can offer in order to obtain a suspension. Where the suspender cannot, from his low or suspected circumstances, procure unquestionable security, juratory-caution is admitted. Ersk. Pr. L. Scot. 4, 3, 6.

CAUTIONER, Scotch law, con tracts, one who becomes bound as caution or surety for another for the performance of any obligation, or contract contained in a deed.

CAVEAT, practice, that he beware. Caveat is the name of a notice given by a party having an interest in the same, to some officer not to do an act, till the party giving the notice shall have been heard; as, a caveat to the register of wills, or judge of probate, not to permit a will to be proved, or not to grant letters of administration until the party shall have been heard. A caveat is also frequently made to prevent a patent for inventions being issued. Ayl. Parer. 145; Nelson's Ab. h. t.; Dane's Ab. c. 223, a. 15, § 2, and a. 8, § 22. See 2 Chit. Pr. 502, note (b) for a form.

CAVEAT EMPTOR. Let the purchaser beware. It is a rule of the common law, in which respect it is directly opposed to the civil law, that the purchaser is bound to examine and ascertain the defects in the thing sold, and unless there be some misrepresentation or artifice to disguise it, or some warranty as to its qualities or character, the vendee is bound by the contract, notwithstanding there may be intrinsic defects and vices in it, known to the vendor and unknown to the vendee, materially affecting its value. 2 Kent, Com. Lect. 39, p. 478; 2 Bl. Com. 451; 1 Story, Eq. §212; 6 Ves. 678; 10 Ves. 505; 3 Cranch, 270; 2 Day, R. 128; Sugd. Vend. 221. This rule has been severely assailed, not without some appearance of justice, as being the instrument of falsehood and fraud; but although its policy has been frequently questioned, it is too well established to be disregarded. Coop. Just. 611, n.

CAVIL. Sophism, subtlety. Cavil is a captious argument, by which a conclusion evidently false, is drawn from a principle evidently true: Ea est natura cavillationis ut ab ecidentur veris, per brevissimas mutationes disputatio, ad ea qua evidentur falsa sunt perducatur. Dig. 50,16, 177 et 233; lb. 17, 65; lb. 33,2, 88

(LESARIAN OPERATION,— med. jurisp. An incision made through the posrieties of the abdomen and uterus to extract the fetus. It is said, that Julius Caesar was born in this manner. When the child is cut out after the death of the mother, his birth alive confers no rights on other persons than himself, to which they would have been entitled if he had been born during her life; for example, his father would not be tenant by the curtesy, for to create that title, it ought to begin by the birth of issue alive, and be consummated by the death of the wife. 8 Co. Rep. 35; 2 Bl. Com. 128; Co. Litt. 29 b.; 1 Beck's Med. Jur. 264; Coop. Med. Jur. 7. The rules of the civil law on this subject will be found in Dig. lib. 50, t. 16, 1. 132 et 141; lib. 5, t. 2, 1. 6; lib. 28, t. 2,1. 12.

CEDENT, Scotch law. An assignor. The term is usually applied to the assignor of a chose in action. Kamcs on Eq. 43.

- CELEBRATION, contracts. This word is usually applied in law to the celebration of marriage, which is the solemn act by which a man and woman take each other for husband and wife, conformably to the rules prescribed by law. Diet. de Juris. h. t.

1 CENSUS. An enumeration of the inhabitants of a country. For the purpose of keeping the representation of the several states in congress equal, the constitution provides, that "representatives and direct taxes shall be apportioned among the several states, which may be included in this Union, according to their respective numbers; which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, threefifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the congress of the United States, and within every subsequent term of ten years, in such a manner as they shall by law direct." Art. 1, s. 2; vide 1 Story L. U. S., 73, 722, 751;

2 Id. 1134,1139,1169,1194; 3 Id. 1766; 4 Sharsw. continuation, 2179.

CENT, money, is a copper coin of the United States of the value of ten mills; ten of them are equal to a dime, and one hundred, to one dollar. Each cent is required to contain one hundred and sixty-eight grains. Act of January 18th, 1837, 4 Sharsw. cont. of Story's L. U. S. 2524.

CENTURY, civil law. One hundred. The Roman people were divided into centuries. In England they were divided into hundreds. Vide Hundred. Century also means one hundred years.

CEPI, a Latin word signifying I have taken. Cepi corpus, I have taken the body; cepi corpus and B. B., I have taken the body and discharged him on bail bond; cepi corpus et est in custodia, I have taken the body and it is in custody; cepi corpus, et est languidus, I have taken the body and it is sick. These are various returns made by the sheriff to a writ of capias, or process of like nature.

CEPI CORPUS, in practice, is the return which the sheriff, pr other proper officer, makes when he has arrested a defendant by virtue of a capias. See Capias. F. N. B. 26.

CEPIT IN ALIO LOCO, pleadings. He took in another place. This is a plea in replevin, by which the defendant alleges that he took the thing replevied in another place than that mentioned in the plaintiff's declaration. 1 Chit. PI. 490; 2 Chit. PI. 558; Rast. Entr. 554, 555; Cliff 636; Willes, R. 475; Tidd's App. 666.

CERTAINTY, UNCERTAINTY, contracts; in matters of obligation, a thing is certain, when its essence, quality and quantity, are sufficiently described, such as one hundred dollars, such a house, or such a horse. It is uncertain, when the description is not that of one individual object, but designates only the kind, such as some corn, some wine, a horse. Louis. Code, art. 3522, No. 8; 5 Co. 121. If a contract be so vague in its terms, that its meaning cannot be certainly collected, and the statute of frauds preclude the admissibility of parol evidence to clear up the difficulty, 5 Barn. &. Cr. 583; S. C. 12 Eng. Com. L. R. 327; or the parol evidence will not supply the defect, then neither at law, nor in equity, can effect be given to it. 1 Russ. & M. 116; 1 Ch. Pr. 123. It is a maxim of law that that is certain which may be made certain; certum est quod certum reddi potest, Co. Litt. 43; for example, when a man sells the oil he has in his store at so much a gallon, although there is uncertainty as to the quantity of oil, yet inasmuch as it can be ascertained, the maxim applies, and the sale is good. Vide, generally, Story, Eq. PI. § 240 to 256; Mitf. Eq. PI. by Jeremy, 41; Coop. Eq. PI. 5; Wigr. on Disc. 77.

CERTAINTY, pleading. By certainty is understood a clear and distinct statement of the facts which

constitute the cause of action, or ground of defence, so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give the judgment. Cowp. 632; Co. Litt. 303; 2 Bos. & Pull. 267; 13 East, R. 107; Com. Dig. Pleader, C. 17; Hob. 295. Certainty has been stated by Lord Coke, Co. Litt. 303, a, to be of three sorts; namely, 1, certainty to a common intent; 2, to a certain intent in general; and, 3, to a certain intent in every particular. In the case of Dovaston v. Paine, Buller, J. said he remembered to have heard Mr. Justice Aston treat these distinctions as a jargon of words without meaning, 2 H. Bl. 530; they have, however, long been made, and ought not altogether to be departed from.

1. By certainty to a common intent, is to be understood, that when words are used which will bear a natural sense, and also an artificial one, or one to be made out by argument or 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 were omitted. 2 H. Bl. 530.

2. Certainty to a certain intent in general, is a greater degree of certainty than the last, and means what upon a fair and reasonable construction may be called certain, without recurring to possible facts which do not appear, 9 Johns. R. 317; and is what is required in declarations, replications and indictments, in the charge or accusation, and in returns to writs of mandamus. See 1 Saund. 49, n. 1; 1 Dougl. 159; 2 Johns. Cas. 339; Cowp. 682; 2 Mass. R. 363; by some of which authorities, it would seem, certainty to a common intent is sufficient in a declaration.

3. The third degree of certainty,

« SebelumnyaLanjutkan »