Gambar halaman

Chose in Action; Chitty's Eq. Dig. h. t Vide 1 Ch. Pr. 140. It is one of the qualities of a chose in action, that, at common law, it is not assignable. 2 John. 1; 15 Mass. 388; 1 Cranch, 367. But bills of exchange and promissory notes, though choses in action, may be assigned by indorsement, when payable to order, or by delivery, when payable to bearer. See Bills of Exchange. Bonds are assignable in Pennsylvania and perhaps some other states, by virtue of statutory provisions. In equity, however, all choses in action are assignable, and the assignee has an equitable right to enforce the fulfilment of the obligation in the name of the assignor. 4 Mass. 511; 3 Day, 364; 1 Wheat. 236; 6 Pick. 316 ; 9 Cow. 34; 10 Mass. 316; 11 Mass. 157, n.; 9 S. & R. 244; 3 Yeates, 327; 1 Binn. 429; 5 Stew. & Port. 60; 4 Rand. 266; 7 Conn. 399; 2 Green, 510; Harp. 17.

CHRISTIANITY, the religion established by Jesus Christ. Christianity has been judicially declared to be a part of the common law of Pennsylvania, 11 Serg. & Rawle, 394; 5" Binn. R. 555; New York, 8 Johns. R. 291; Connecticut, 2 Swift's System, 321; Massachusetts, Dane's Ab. vol. 7, c. 219, a. 2, 19. To write or speak contemptuously and maliciously against it, is an indictable offence. Vide Cooper on the Law of Libel, 59 and 114, et seq. where he contends that the decisions which have been made, declaring Christianity to be a part of the law, are the result of ignorance or falsehood. See also Mr. Jefferson's letter to Major Cartwright, Appx. No. III. to Coop. Law of Libel, on the same subject. Vide generally, 1 Russ. on Cr. 217; 1 Hawk, c. 5; 1 Vent. 293; 3 Keb. 607; 1 Barn. & Cress. 26, S. C. 8 Eng. Com. Law R. 14; Barnard. 162; Fitzgib. 66; Roscoe, Cr. Ev. 524; 2 Str. 834; 3 Barn. & Aid.

161; S. C. 5 Eng. Com. Law R. 249; Jeff. Rep. Appx.

CHURCH. In a moral or spiritual sense this word signifies a society of persons who profess religion; and in a physical or material sense, the place where such persons assemble. The term church is nomen collectu mm; it comprehends the chancel, aisles, and body of the church. Ham. N. P. 204. It is not within the plan of this work to give an account of the different local regulations in the United States respecting churches. References are here given to enable the inquirer to ascertain what they are, where such regulations are known to exist. 2 Mass. 500; 3 Mass. 166; 8 Mass. 96; 9 Mass. 277; lb. 254; 10 Mass. 323; 15 Mass. 296; 16 Mass. 488; 6 Mass. 401; 10 Pick. 172; 4 Day, C. 361; 1 Root § 3, 440; Kirby, 45; 2 Caines's Cas. 336; 10 John. 217; 6 John. 85; 7 John. 112 ; 8 John. 464; 9 John. 147; 4 Dessaus. 578; 5 Serg. & Rawle, 510; 11 Serg. & Rawle, 35; Mete. & Perk. Dig. h. t.

CHURCH-WARDEN. An officer whose duties are, as the name implies, to take care of or guard the church. These officers are created in some ecclesiastical corporations by the charter, and their rights and duties are definitely explained. In England, it is said, their principal duties are to take care of, 1, The church or building; 2, the utensils and furniture; 3, the church yard;

4, certain matters of good order concerning the church and church yard;

5, the endowments of thechurch. Bac. Ab. h. t. By the common law the capacity of church-wardens to hold property for the church is limited to personal property. 9 Cranch, 43.

CIPHER. An arithmetical character, by which some number is noted; a figure, for example, 1776. Ciphers ought not to be used to express the sums mentioned in a contract; but it is usual to date all simple contracts with ciphers; deeds and write should be dated by words at length. Vide Figures, and 13 Vin. Ab. 210; 18 Eng. C. L. R. 95; 1 Ch. Cr. Law, 176.

CIRCUIT COURT. Vide Courts of the United States.

CIRCUITY OF ACTION, prac tice, remedies, is where a party by bringing an action, gives an action to the defendant against him. As supposing the obligee of a bond covenanted that he would not sue on it, if he were to sue he would give an action against himself to the defendant for a breach of his covenant. The courts prevent such circuitous actions, for it is a maxim of law so to judge of contracts, as to prevent a multiplicity of actions; and in the case just put, they would hold that the covenant not to sue, operated as a release. 1 T. R. 441. It is a favourite object of courts of equity to prevent a multiplicity of actions. 4 Cowen, 682.

CIRCUITS, are certain divisions of the country, appointed for particular judges to visit for the trial of causes, or for the administration of justice. See 3 Bl. Com. 58.

CIRCUMDUCTION, Scotch law, is a term applied to the time allowed for bringing proof of allegiance, which being elapsed, if either party sue for circumduction of the time of proving, it has the effect that no proof can afterwards be brought; and the cause must be determined as it stood when circumduction was obtained. Tech. Diet.

CIRCUMSTANCES, evidence, the particulars which accompany a fact. The facts proved are either possible or impossible, ordinary and probable, or extraordinary and imimprobable, recent or ancient; they may have happened near us, or afar off, they are public or private, permanent or transitory, clear and sim

ple, or complicated; they are always accompanied by circumstances which more or less influence the mind in forming a judgment. These points ought to be carefully examined, in order to form a correct opinion. The first question ought to be, is the fact possible? if so, are there any circumstances which render it impossible 1 If the facts are impossible the witness ought not to be credited, if, for example, a man should swear that he saw the deceased shoot himself with his own pistol, and upon an examination of the ball which killed him, it should be found too large to enter into the pistol, the witness ought not to be credited. 1 Stark. Ev. 505; or if one should swear that another had been guilty of the impossible crime of witchcraft. Toullier mentions a case, which were it not for the ingenuity of the counsel, would require an apology for its introduction here, on account of its length. The case was this, La Veuve Veron brought an action against M. de Morangies on some notes, which the defendant alleged were fraudulently obtained, for the purpose of recovering 300,000 francs, and the question was, whether the defendant had received the money. Dujonquai, the grandson of the plaintiff pretended he had himself, alone and on foot, carried this sum in gold to the defendant, at his hotel at the upper end of the rue Saint Jacques, in thirteen trips, between half-past seven and about one o'clock, that is, in about five hours and a half, or at most, six hours. The fact was improbable; Linquet, the counsel of the defendant, proved it was impossible; and this is his argument.

Dujonquai said that he had divided the sum in thirteen bags, each containing six hundred louis d'ors, and in twenty-three other bags, each containing two hundred. There remained twenty-five louis to complete the whole sum, which Dujonquai said he received from the defendant as a gratuity. At each of these trips, he says he put a bag, containing two hundred louis, that is, about three pounds four ounces, in each of his coat pockets, which, being made in the fashion of those times, hung about the thighs, and in walking must have incommoded him and obstructed his speed, he took besides, a bag containing six hundred louis in his arms, by this means his movements were impeded by a weight of near ten pounds.

The measured distance between the house where Dujonquai took the bags to the foot of the stairs of the defendant, was five hundred and sixteen toises, which multiplied by twenty-six, the thirteen trips going and returning, make thirteen thousand four hundred and sixteen toises, that is, more than five leagues, and a half (near seventeen miles) of two thousand four hundred toises, which latter distance is considered sufficient for an hour's walk, of a good walker. Thus, if Dujonquai had been unimpeded by any obstacle, he would barely have had time to perform the task in five or six hours, even without taking any rest or refreshment. However strikingly improbable this may have been, it was not physically impossible. But

1. Dujonquai in going to the defendant's had to descend sixty-three steps from his grandmother's, the plaintiff's, chamber, and to ascend twenty-seven to that of the defendant, in the whole, ninety steps. In returning, the ascent and descent were changed, but the steps were the same; so that by multiplying by twenty-six, the number of trips going and returning, it would be seen there were two thousand three hundred and forty steps. Experience had proved that in ascending to the top of the tower of Notre Dame, (a church in Paris,) where there are

three hundred and eighty-nine steps, it occupied from eight to nine minutes of time. It must then have taken an hour out of the five or six which had been employed in making the thirteen trips.

2. Dujonquai had to go up the rue Saint Jacques, which is very steep, its ascent would necessarily decrease the speed of a man burdened and encumbered with the bags which he carried in his pockets and in his arms.

8. This street, which is very public, is usually, particularly in the morning, encumbered by a multitude of persons going in every direction, so that a person going along must make an infinite number of deviations from a direct line; each, by itself, is almost imperceptible, but at the end of five or six hours, they make a considerable sum, which may be estimated at a tenth part of the whole course in a straight line, this would make about half a league, to be added to the five and a half leagues, which is the distance in a direct line.

4. On the morning that Dujonquai made these trips, the daily and usual incumbrances of this street were increased by sixty or eighty workmen, who were employed in removing by hand and with machine, an enormous stone, intended for the church of Sainte Genevieve, now the pantheon, and by the immense crowd which this attracted; this was a remarkable circumstance, which, supposing that Dujonquai had not yielded to the temptation of stopping a a few moments to see what was doing, it must necessarily have impeded his way, and made him lose seven or eight minutes each trip, which multiplied by twenty-six, would make about two hours and a half.

5. The witness was obliged to open and shut the doors at the defendant's house; it required time to take up the bags and place them in his pockets, to take them out and put them on the defendant's table, who, by an improbable supposition, counted the money in the intervals between the trips, and not in the presence of the witness. Dujonquai, too, must have taken receipts or acknowledgments at each trip, he must read them, and on arriving at home, deposited them in some place of safety; all these distractions would necessarily occasion the loss of a few minutes. By adding these with scrupulous nicety, and by further adding the time employed in taking and depositing the bags, the opening and shutting of the doors, the reception of the receipts, the time occupied in reading and putting them away, the time consumed in several conversations, which he admitted he - had with persons in the street; all these joined to the obstacles above mentioned, made it evident that it was physically impossible that Dujonquai should have carried the 300,000 francs to the house of the defendant, as he affirmed he had done. Toull. tom. 9, n. 241, p. 384. Vide, generally, 1 Stark. Ev. 502; 1 Phil. Ev. 116. See some curious cases of circumstantial evidence in Alis. Pr. Cr. Law, 313, 314; and 2 Theorie des Lois criminelles, 147, n. Presumption.

CIRCUMSTANTIBUS, persons, practice, are bystanders, from whom jurors are to be selected when the panel has been exhausted. Vide Tales de circumstantifrus.

CIRCUMVENTION, torts,— Scotch law, any act of fraud whereby a person is reduced to a deed by decreet. Tech. Diet. It has the same sense in the civil law. Dig. 50, 17, 49 et 155; Id. 12, 6, 6, 2; Id. 41, 2, 34. Vide Parphrasis.

CITATION, practice, is a writ issued out of a court of competent jurisdiction commanding a person

therein named to appear and do something therein mentioned, or to show cause why he should not, on a day named. Proct. Pr. h. t. In the ecclesiastical law, the citation is the beginning and foundation of the whole cause; it is said to have six requisites, namely, the insertion of the name of the judge—of the promovert—of the impugnant—of the cause of suit—of the place—and of the time of appearance; to which may be added the affixing the seal of the court, and the name of the register or his deputy. 1 Bro. Civ. Law, 453, 4 ; Ayl. Parer. xliii. 175; Hall's Adm. Pr. 5; Merl. Rep. h. t. By citation is also understood the act by which a person is summoned, or cited.

CITATION OF AUTHORITIES, are the text of acts of legislatures and of treatises, and decided cases, which are indicated in order to support what is advanced. Works are sometimes surcharged with useless and misplaced citations; when they are judiciously made they assist the reader in his researches. Citations ought not to be made to prove what is not doubted ; but when a controverted point is mooted, it is highly proper to cite the laws and cases, or other authorities in support of the controverted proposition. The mode of citing statutes varies in the United States; the laws of the United States are generally cited by their date, as the act of Sept. 24, 1789, s. 35; or Act of 1819, ch. 170, 3 Story's U. S. Laws, 1722; in Pennsylvania acts of assembly are cited as follows, act of 14th of April, 1834; in Massachusetts, stat. of 1808, c. 92. Treatises and books of reports, are generally cited by the volume and page, as, 2 Powell on Mortg. 600; 3 Binn. R. 60. Judge Story and some others, following the examples of the civilians, have written their works and numbered the paragraphs, these are cited as follows, Story's Baitm. § 494; Gould on Pl. c. 5, § 30. For other citations the reader is referred to the article Abbreviations.

It is usual among the civilians on the continent of Europe, in imitation of those of the darker ages, in their references to the Institutes, the Code and the Pandects or Digest, to mention the number, not of the book, but of the law, and the first word of the title to which it belongs; and as there are more than a thousand of these, it is no easy task for one not thoroughly acquainted with those collections, to find the place to which reference is made. The American writers generally follow the natural mode of reference, by putting down the name of the collection, and then the number of the book, title, law, and section. For example, Inst. 4, 15, 2, signifies Institutes, book four, title fifteen, and section two. Dig. 41, 9, 1, 3, means Digest, book 41, title 9, law 1, section 3. Dig. pro dote; or ffpro dote; that is, section 3, law 1, of the book and title of the Digest or Pandects, entitled pro dote. It is proper to remark that Dig. and ff are equivalent; the former signifies Digest, and the latter, which is a careless mode of writing the Greek letter 'r', the first letter of the word Trxthxrai, Pandects, and the Digest and Pandects are different names for one and the same thing. The Code is cited in the same way. The Novels are cited by their number, with that of the chapter and paragraph; for example, Nov. 185, 2, 4; for Novella Justiniani 185, capite 2, paragrapho 4. Novels are also quoted by the Collation, the title, chapter and paragraph, as follows; in Authentic©, Collatione 1, titulo 1, cap. 281. The Authentics are quoted by their first words, after which is set down the title of the Code under which thev are placed; for example,

Vol. I.—23.

Authentica cum testator, Codice ad legem fascidiam.

CITIZEN, persons. One who, under the constitution and laws of the United States, has a right to vote for representatives in Congress, and other public officers, and who is qualified to fill offices in the gift of the people. Citizens are either native born or naturalized. Native citizens may fill any office; naturalized citizens may be elected or appointed to any office under the constitution of the United States, except the office of president. The constitution provides, that " the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." Art. 4, s. 2. All natives are not citizens of the United States, the descendants of the aborigines, and those of African origin are not entitled to the rights of citizens. Anterior to the adoption of the constitution of the United States, each state had the right to make citizens of such persons as it pleased. That constitution does not authorise any but white persons to become citizens of the United States; and it must therefore be presumed that no one is a citizen who is not white. 1 Litt. R. 334; 10 Conn. R. 340; 1 Meigs, R. 331. A citizen of the United States, residing in any state of the Union, is a citizen of that state. 6 Pet. 761; Paine, 594; 1 Brock. 391; 1 Paige, 183; Mete. & Perk. Dig. h. t.; vide 3 Story's Const. § 1687; 2 Kent, Com. 258; 4 Johns. Ch. R. 430; Vatt. B. 1, c. 19, § 212; Poth. Des Personnes, tit. 2, s. 1. Vide Body Politic.

CITY, government, is a town incorporated by that name. Originally this word did not signify a town, but a portion of mankind who lived under the same government: what the Romans called civitas and the Greeks polis; whence the word politeia, civitas seu reipublica status et ad

« SebelumnyaLanjutkan »