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is that which precludes all argument, inference, or presumption against the party pleading, and is that technical accuracy which is not liable to the most subtle and scrupulous objections, so that it is not merely a rule of construction but of addition; for where this certainty is necessary, the party must not only state the facts of his case in the most precise way, but add to them such as show that they are not to be controverted, and as it were anticipate the case of his adversary. Lawes on PL 54, 55. See 1 Chitty on Pl. 235 to 241.
CERTIFICATE, practice, is a writing made in any court, and properly authenticated, to give notice to another court of any thing done therein; or it is a writing by which an officer or other person bears testimony that a fact has or has not taken place. There are two kinds of certificates; those required by the law, and those which are merely voluntary: of the first kind are certificates given to an insolvent of his discharge, and those given to aliens that they have been naturalized. Voluntary certificates are those which are not required by law, but which are given of the mere motion of the party. The former are evidence of the facts therein mentioned, while the latter, which are not unfrequently extorted from weakness or ignorance, are not entitled to any credit, because the facts certified may be proved in the usual way under the solemnity of an oath or affirmation. 2 Com. Dig. 306; Avl. Parerg. 157. Greenl. Ev. § 498.
'CERTIFICATE, JUDGE'S, English practice. The judge who tries the cause is authorised by several statutes in certain cases to certify, so as to decide when the party or parties shall or shall not be entitled to costs. It is of great importance, in many cases, that these certificates should be obtained at the time of trial. Sec 3 Camp. R. 316; 5 B. Ac A. 796;
Tidd's ^r. 879; 3 Ch. Pr. 458, 486.
The Lord Chancellor often requires the opinion of the judges upon a question of law; to obtain this a case is framed, containing the admissions on both sides, and upon these the dry legal question is stated; the case is then submitted to the judges, who, after hearing counsel, transmit to the chancellor their opinion. This opinion, signed by judges of the court, is called their certificate. See 3 Bl. Comm. 453.
CERTIFICATE, ATTORNEY'S, in practice. In the English law. By statute 37 Geo. 3, c. 90, s. 26, 28, attorneys are required to deliver to the commisioners of stamp duties a paper or note in writing, containing the name and usual place of residence of such person, and thereupon, on paying certain duties, such person is entitled to a certificate denoting the payment of such duties, which must be renewed yearly. And by the 30th section, an attorney is liable to the penalty of fifty pounds for practising without.
CERTIFICATION or CERTIFICATE OF ASSISE, a term used in the old English law, applicable to a writ granted for the reexamination or re-trial of a matter passed by assise before justices. F. N. B. 181; 3 Bl. Com. 389. The summary motion for a new trial has entirely superseded the use of this writ, which was one of the means devised by the judges to prevent a resort to the remedy by attaint for a wrong verdict.
CERTIORARI, practice. To be certified of; to be informed of. This is the name of a writ issued from a superior court directed to one of inferior jurisdiction, commanding the latter to certify to the former, the record in the particular case. Bac. Ab. h. t.; 4 Vin. Ab. 330; Nels. Ab. h. t.; Dane's Ab. Index, h. t.; 3 Penna. R. 24. A certiorari differs from a writ of error. By the common law, a supreme court has power to review the proceedings of all inferior tribunals, and to pass upon their jurisdiction and decisions on questions of law. But in general the determination of such inferior courts on questions of fact are conclusive, and cannot be reversed on certiorari, unless some statute confers the power on such supreme court. 6 Wend. 564; 10 Pick. 358; 4 Halst. 209. When any error has occurred in the proceedings of the court below, different from the course of the common law, in any stage of the cause, either civil or oriminal cases, the writ of certiorari is the only remedy to correct such error, unless some other statutory remedy has been given. 5 Binn. 27; 1 Gill & John. 196; 2 Mass. R. 245; 11 Mass. R. 466; 2 Virg. Cas. 270; 3 Halst. 123; 3 Pick. 194; 4 Hayw. 100; 2 Greenl. 165; 8 Greenl. 293. A certiorari, for example, is the correct process to remove the proceeding of a court of sessions, or of county commissioners in laying out highways. 2 Binn. 250: 2 Mass. 249; 7 Mass. 158; 8 Pick. 440; 13 Pick. 195; 1 Overt. 131 ; 2 Overt. 109; 2 Pen. 1038; 8 Verm. 271 ; 3 Ham. 383; 2 Caines, 179; Sometimes the writ of certiorari is used as auxiliary process in order to obtain a full return to some other process. When, for example, the record of an inferior court is brought before a superior court by appeal, writ of error, or other lawful mode, and there is a manifest defect, or a suggestion of diminution, a certiorari is awarded requiring a perfect transcript and all papers. 3 Dall. R. 413; 3 John. R. 23; 7 Cranch, R. 288; 2 South. R. 270,MI ; 1 Blackf. R. 32 ; 9 Wheat. R. 526; 7 Halst. R. 85; 3 Dev. R. 117; 1 Dev. & Bat. 382; 11 Mass. 414; 2 Munf. R.229; 2Cowen,R. 38. CESSET EXECUTIO, is the
staying of an execution, i When a judgment has been entered, there is sometimes by the agreement of the parties, a cesset executio for a period of time fixed upon; and when the defendant enters security for the amount of the judgment, there is a cesset executio until the time allowed by law has expired.
CESSAVIT, Eng. law, is an obsolete writ which could formerly have been sued out when the defendant had for two years ceased or neglected to perform such seivice or to pay such rent as he was bound to do by his tenure, and had not upon his lands sufficient goods or chattels to be distrained. F. N. B. 208.
CESSIO BONORUM, civil law. The relinquishment which a debtor made of his property for the benefit of his creditors. This exempted the debtor from imprisonment, not, however, without leaving an ignominious stain on his reputation. Dig. 2, 4, 25; lb, 48, 19, 1; Nov.4,c. 3, and Nov. 135. By the latter Novel, an honest unfortunate debtor might be discharged by simply affirming that he was insolvent, without having recourse to the benefit of cession. By the cession the creditors acquired title to all the property of the insolvent debtor. Vide, for the law of Louisiana, Code art. 2166, et seq. 2 M. R. 112 ; 2 L. R. 354; 11 L. R. 531; 5 N. S. 299; 2 L. R. 39; 2 N. S. 108; 3 M. R. 232 ; and Abandonment.
CESSION, contracts, yielding up; release. France ceded Louisiana to the United States by the treaty of Paris, of April 30,1803; Spain made a cession of East and West Florida, by the treaty of February 22, 1819. Cessions have been severally made of a part of their territory, by New York, Virginia, Massachusetts, Connecticut, South Carolina, North Carolina, and Georgia. Vide Gord. Dig. art. 2236 to 2250.
CESSION, eccl. law. When an ecclesiastic is created bishop, or a parson of a parsonage takes another benefice, without dispensation, the first benefice becomes void by a legal cession, or surrender. Cowel, h. t.
CESTUI QUE TRUST, a barbarous phrase to signify the beneficiary of an estate held in trust. He for whose benefit another person is enfeoffed or seised of land or tenements. The cestui que trust is entitled to receive the rents and profits of the land; he may direct such conveyances, consistent with the trust deed or will, as he shall choose, and the trustee (q. v.) is bound to execute them; he may defend his title in the name of the trustee. 1 Cruise, Dig. tit. 12, c. 4, s. 4; vide Vin. Ab. Trust, U, W, X, and Y; 1 Vern. 14; Dane's Ab. Index, h. t.
CESTUI QUE VIE, he for whose life land is holden by another person; the latter is called tenant per aider trie, or tenant for another's life. Vide Dane's Ab. Index, h. t.
CESTUI QUE USE, he to whose use land is granted to another person ; the latter is called the terre-tenant, having in himself the legal property and possession; yet not to his own use, but to dispose of it according to the directions of the cestui que use, and to suffer him to take the profits. Vide Bac. Read, on Stat. of Uses, 303, 309, 310, 335, 349; 7 Com. Dig. 593.
CHAFEWAX, Eng. law. An officer in chancery who fits the wax for sealing to the writs, commissions and other instruments then made to be issued out. He is probably so called because he warms (chaufe), the wax.
CHAFFERS, anciently signified wares and merchandise; hence the word chaffering, which is yet used for buying and selling, or beating down the price of an article. The word is used in stat. 3 Ed. 3, c. 4.
CHAIRMAN, is the presiding officer of a committee; as, chairman of the committee of ways and means. The person selected to preside over a popular meeting is also called a chairman or moderator.
CHALDRON. A measure of capacity, equal to fifty-eight and twothird cubic feet nearly. Vide Measure.
CHALLENGE. This word has several significations. 1. It is an objection to a person or thing; as, I challenge such a juror. 2. A call by one person of another to single combat, which is said to be a challenge to fight.
CHALLENGE, criminal law, is a request by one person to another to fight a duel. It is a high offence at common law, and indictable as tending to a breach of the peace. It may be in writing or verbally. Vide Hawk. P. C. b. 1, c. 63, s. 3; 6 East, R. 464; 3 East, R. 581; 1 Dana, R. 524; 1 South. R. 40; 3 Wheel. Cr. C. 245 ; 3 Rogers's Rec. 133; 2 M'Cord, R. 334; 1 Hawks, R. 487; 1 Const. R. 107. He who carries a challenge is also punishable by indictment. In most of the states, this barbarous practice is punishable by special laws.
In most of the civilized nations challenging another to fight is a crime, as calculated to destroy the public peace, and those who partake in the offence are generally liable to punishment. It is punished by loss of offices, rents, and honours received from the king, in Spain, and the delinquent is incapable to hold them in future. Aso. & Man. Inst. B. 2, t. 19, c. 2, §6. See, generally, 6 J. J. Marsh. 120; 1 Munf. 468; 1 Russ. on Cr. 275.
CHALLENGE, practice, is an exception made to jurors who are to pass on a trial. It will be proper here to consider, 1, the several kinds of challenges; 2, by whom they are to be made; 3, the time and manner of making them.
§ 1. The several kinds of challenges may be divided into those which are peremptory, and those which are for cause.
1. Peremptory challenges are those which are made without assigning any reason, and which the court must allow. The number of these which the prisoner was allowed at common law, in all cases of felony, was thirty-five, or one under three full juries. This is regulated by the local statutes of the different states, and the number, except in capital cases, has been probably reduced.
2. Challenges for cause are to the array or to the polls.—1. A challenge to the array is made on account of some defect in making the return to the venire, and is at once an objection to all the jurors in the panel. It is either a principal challenge, that is, one founded on some manifest partiality, or error committed in selecting, depositing, drawing or summoning the jurors, by not pursuing the directions of the acts of the legislature; or a challenge for favour.—2. A challenge to the polls is an objection made separately to each juryman as he is about to be sworn. Challenges to the polls like those to the array, are either principal or to the favour. First, principal challenges may be made on various grounds, 1st, propter defectum, on account of some personal objection, as alienage, infancy, old age, or the want of those qualifications required by legislative enactment. 2d. Propter affectum, because of some presumed or actual partiality in the juryman who is made the subject of the objection; on this ground a juror may be objected to, if he is related to either within the ninth degree, or is so connected by affinity; this is supposed to bias the juror's mind, and is only a presumption of partiality.
Much stronger is the reason for this challenge, where the juryman has expressed his wishes as to the result of the trial, or his opinion of the guilt or innocence of the defendant. 4 Harg. St. Tr. 748; Hawk. b. 2, c 43, s. 28; Bac. Ab. Juries, E 5.— 3. The third ground of principal challenge to the polls, is propter delictum, or the legal incompetency of the juror on the ground of infamy. The court when satisfied from their own examination, decide as to the principal challenges to the polls, without any further investigation; and there is no occasion for the appointment of triers. Co. Litt. 157, b; Bac. Ab. Juries, E 12; 8 Watts, R. 304. Secondly. Challenges to the poll for favour may be made, when although the juror is not so evidently partial that his supposed bias will be sufficient to authorise a principal challenge, yet there are reasonable grounds to suspectthathe will act under some undue influence or prejudice. The causes for such challenge are manifestly very numerous, and depend on a variety of circumstances. The fact to be' ascertained is, whether the juryman is altogether indifferent as he stands unsworn, because, even unconsciously to himself, he may be swayed to one side. The line which separates the causes for principal challenges, and for challenge to the favour, is not very distinctly marked. That the juror has acted as godfather to the child of the prosecutor or defendant, is cause for a principal challenge, Co. Litt. 157, a; while the fact that the party and the juryman are fellow servants, and that the latter has been entertained at the house of the former, is only cause for challenge to the favour. Co. Litt. 147; Bac. Ab. Juries, E 5. Challenges to the favour are not decided upon by the court, but are settled by triers, (q. v.)
§ 2. The challenges may be made by the government, or those who represent it, or by the defendant, in criminal cases; or they may be made by either party in civil cases.
§ 3. As to the time of making the challenge, it is to be observed that it is a general rule, that no challenge can be made either to the array or to the polls, until a full jury have made their appearance, because if that should be the case, the issue will remain pro defectu juratorem; and on this account, the party who intends to challenge the array, may, under such a contingency, pray a tales to complete the number, and then object to the panel. The proper time of challenging, is between the appearance and the swearing of the jurors. The order of making challenges is to the array first, and should not that be supported, then to the polls; challenging any one juror waives the right of challenging the array. Co. Litt. 158, a; Bac. Ab. Juries, E 11. The proper manner of making the challenge, is to state all the objections against the juror at one time; and the party will not be allowed to make a second objection to the same juror, when the first has been overruled. But when a juror has been challenged on one side, and found indifferent, he may still be challenged on the other. When the juror has been challenged for cause and been pronounced impartial, he may still be challenged peremptorily. 6 T. R. 531; 4 Bl. Com. 356; Hawk. b. 2, c. M, s. 10.
As to the mode of making the challenge, the rule is, that a challenge to the array must be in writing, but when it is only to a single individual, the words "I challenge him," are sufficient in a civil case, or on the part of the defendant, in a criminal case; when the challenge is made for the prosecution, the attorney-general says, "we challenge him." 4 Harg. St. Tr. 740; Tr.
per Pais, 172; and see Cro. C. C. 105; 2 Lil. Entr. 472; 10 Wentw. 474; 1 Chit. Cr. Law, 533 to 551.
CHAMBER. A room in a house. It was formerly held that no freehold estate could be had in a chamber, but it was afterwards ruled otherwise. When a chamber belongs to one person, and the rest of the house with the land is owned by another, the two estates are considered as two separate but adjoining dwelling houses. Co. Litt. 48, b; Bro. Ab. Demand, 20; 4 Mass. 575; 6 N. H. Rep. 555; 9 Pick. R. 297 ; vide 3 Leon. 210; 3 Watts, R. 243.
CHAMBER OF COMMERCE. A society of the principal merchants and traders of a city, who meet to promote the general trade and commerce of the place. Some of these are incorporated, as in Philadelphia.
CHAMBERS, practice. When a judge decides some interlocutory matter, which has arisen in the course of the cause, out of court, he is said to make such decision at his chambers. The most usual applications at chambers take place in relation to taking bail, and staying proceedings on process.
CHAMPART, French law. By this name was formerly understood the grant of a piece of land by the owner to another, on condition that the latter would deliver to him a portion of the crops. 18 Toull. n. 182.
CHAMPERTOR, crim. law, one who moves pleas or suits, or causes them to be moved, either directly or indirectly, and sues them at his proper costs, upon condition of having a part of the gain.
CHAMPERTY, crimes, is a bargain with a plaintiff or defendant, campum partire, to divide the land or other matter sued for, between them, if they prevail at law, the champertor undertaking to carry on the suit at his own expense. 1 Pick. 416; 1 Ham. 132; 5 Monr. 416 ; 4