Gambar halaman
PDF
ePub

and merchandize imported in them; shall, together with the naval officer, where there is one, or alone, where there is none, estimate the amount of duties payable thereupon, endorsing the said amounts upon the respective entries; shall receive all moneys paid for duties, and shall take bonds for securing the payment thereof; shall grant all permits for the unlading and delivery of goods; shall, with the approbation of the principal officer of the treasury department, employ proper persons as weighers, guagers, measurers and inspectors, at the several ports within his district; and also, with the like approbation, provide, at the public expense, storehouses for the safe keeping of goods, and such scales, weights, and measures, as may be necessary." Act of March 2, 1799, s. 21; 1 Story U. S. Laws, 590. Vide, for other duties of collectors, 1 Story U. S. Laws, 592, 612, 620, 632, 659, and vol. 3, 1650, 1697, 1759, 1761, 1791,1811,1848,1854; 10 Wheat. 246.

COLLISION, maritime law, takes place when two ships or other vessels run foul of each other, or when one runs foul of the other. In such cases there is almost always a loss or damage incurred. There are four possibilities under which an accident of this sort may occur. 1. It may happen without blame being imputable to either party, as when the loss is occasioned by a storm, or any other cis major; in that case the loss must be borne by the party on whom it happens to light, the other not being responsible to him in any degree.—2. Both parties may be to blame, as when there has been a want of due diligence or of skill on both sides; in such cases, the loss must be apportioned between them, as having been occasioned by the fault of both of them. 6 Whart. R. 311.—3. The suffering party may

have been the cause of the injury, then he must bear the loss.—4. It may have been the fault of the ship which ran down the other; in this case, the injured party would be entitled to an entire compensation from the other. 2 Dobson's Rep. 83, 85; 3 Hagg. Adm. R. 320; the same rule is applied to steamers; lb. 414. —5. Another case has been put, namely, when there has been some fault or neglect, but on which side the blame lies is inscrutable, or the evidence leaves it in a state of uncertainty. In this case, it does not appear to be settled whether the loss shall be apportioned or borne by the suffering party; opinions on this subject are divided. Vide generally, Story, Bailm. § 607 to 612; Marsh. Ins. B. 1, c. 12, s. 2; Wesk. Ins. art. Running Foul; Jacobsen's Sea Laws, B. 4, c. 1; 4 Taunt. 126; 2 Chit. Pr. 513, 535; Code de Comm. art. 407; Boulay-Paty, Cours de Dr. Commercial, tit. 12, s. 6; Pard. n. 652 to 654; Pothier, Avaries, n. 155; 1 Emerig. Assur. ch. 12, § 14.

COLLISTRIGIUM. The pillory.

COLLOCATION, French law. The act by which the creditors of an estate are arranged in the order in which they are to be paid according to law. The order in which the creditors are placed, is also called collocation. Med. Rep. h. t. Vide Mashalling Assets.

COLLOQUIUM, pleading, a discourse, a conversation or conference. In actions of slander it is generally true that an action does not lie for words, on account of their being merely disgraceful to a person in his office, profession or trade; unless it be averred, that at the time of publishing the words, there was a colloquium concerning the office, profession or trade of the plaintiff. In its technical sense, the term colloquium signifies an averment in a declaration that there was a conversation or discourse on the part of the defendant, which connects the slander with the office, profession or trade of the plaintiff, and this colloquium ought to extend to the whole of the prefatory matter necessarily to render the words actionable. 3 Bulst. 83; vide Bac. Ab. Slander, S, n. 3; Dane's Ab. Index, h. t.; Com. Dig. Action upon the case for Defamation, G 7, 8, <fec.; Stark, on Bland, 290, et seq.

COLLUSION, fraud, is an agreement between two or more persons, unlawfully to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law; as, for example, where the husband and wife collude to obtain a divorce for a cause not authorised by law. 4 Eccl. R. 310. It is nearly synonymous with covin, (q. v.) Collusion and fraud of every kind vitiate all acts which are infected with them, and render them void. Vide Shelf, on Mar. & Div. 415, 450; 3 Hagg. Eccl. R. 130, 133.

COLONY, a union of citizens or subjects who have left their country to people another, and remain subject to the mother country. 3 W. C. C. R. 287. The country occupied by the colonists is also called a colony. A colony differs from a possession, or a dependency, (q. v.) For a history of the American colonies, the reader is referred to Story on the Constitution, book I.; 1 Kent, Com. 77 to 80; 1 Dane's Ab. Index, h. t.

COLOUR, pleading, is of several kinds, namely, express colour, and implied colour.

COLOUR, EXPRESS, pleading, is defined to be a feigned matter, pleaded by the defendant, in an action of trespass, from which the plaintiff seems to have a good cause of action, whereas he has in truth only an appearance or colour of cause. Bac. Ab. Trespass, I 4. It is a general rule in pleading that no man shall be allowed to plead specially

Vol. I.—24.

such plea as amounts to the general issue, or a total denial of the charges contained in the declaration, and must in such cases plead the general issue in terms, by which the whole question is referred to the jury; yet, if the defendant in an action of trespass, be desirous to refer the validity of his title to the court, rather than to the jury, he may inhis plea state his title specially, by expressly giving colour of title to the plaintiff, or supposing him to have an appearance of title, bad indeed in point of law, but of which the jury are not competent judges. 3 Bl. Com. 309. Suppose, for example, that the plaintiff was in wrongful possession of the close, without any further appearance of title than the possession itself, at the time of the trespass alleged, and that the defendants entered upon him in assertion of their title; but being unable to set forth this title in the pleading, in consequence of the objection that would arise for want of colour, are driven to plead the general issue of not guilty. By this plea an issue is produced whether the defendants are guilty or not of the trespass; but upon the trial of the issue, it will be found that the question turns entirely upon construction of law. The defendants say they are not guilty of the trespasses, because they are not guilty of breaking the close of the plaintiff, as alleged in the declaration; and that they are not guilty of breaking the close of the plaintiff, because they themselves had the property in that close; and their title is this, that the father of one of the defendants being seised of the close in fee, gave it in tail to his eldest son, remainder in tail to one of the defendants; the eldest son was disseised, but made continual claim till the death of the disseisor; after whose death, the descent being cast upon the heir, the disseisee entered upon the heir, and

afterwards died, when the remainder took effect in the said defendant who demised to the other defendant. Now, this title involves a legal question, namely, whether continual claim will not preserve the right of entry in the disseisee, notwithstanding a descent cast on the heir of the disseisor. (See as to this point, Continual Claim.) The issue however is merely not guilty, and this is triable by jury; and the effect, therefore, would be, that a jury would have to decide this question of law, subject to the direction upon it, which they would receive from the court, But, let it be supposed that the defendants, in a view to the more satisfactory decision of the question, wish to bring it under the consideration of the court in bank, rather than have it referred to a jury. If they have any means of setting forth their title specially in their plea, the object will be attained; for then the plaintiff, if disposed to question the sufficiency of the title, may demur to the plea, and thus refer the question to the decision of the judges. But such plea if pleaded simply, according to the state of fact, would be informal for want of colour; and hence arises a difficulty. The pleaders of former days, contrived to overcome this difficulty in the following singular manner. In such case as that supposed, the plea wanting implied colour, they gave in lieu of it an express one, by inserting a fictitious allegation of some colourable title in the plaintiff, which they, at the same time avoided by the preferable title of the defendant. See Steph. PI. 225; Brown's Entr. 343, for a form of the plea. Formerly various suggestions of apparent right, might be adopted according to the fancy of the pleader; and though the same latitude is, perhaps, still available, yet, in practice, it is unusual to resort to any except certain known

fictions, which long usage has applied to the particular case; for example, in trespass to land, the colour universally given is that of a defective charter of the demise.

See, in general, 2 Saund. 410; 10 Co. 88 ; Cro. Eliz. 76; 1 East, 215; Doct. PI. 17; Doct. & Stud. lib. 2, c. 53; Bac. Abr. Pleas, I 8; Trespass, I 4 ; 1 Chit. PI. 500; Steph. on PI. 220.

COLOUR, IMPLIED, pleading. Colour is a term of the ancient rhetoricians; and was adopted, at an early period, in the language of pleading. See Year Books, 38 E. 3, 28; 40 E. 3, 23. It signifies an apparent or prima facie right. It is a rule that every pleading by way of confession and avoidance, must give colour; that is, it must admit an apparent right in the opposite party, and rely, therefore, on some new matter by which that apparent right is defeated. For example, where the the defendant pleads a release to an action for breach of covenant, the tendency of the plea is to admit an apparent right in the plaintiff, namely, that the defendant did, as alleged in the declaration, execute the deed, and break the covenant therein contained, and would therefore, prima facie be liable on that ground; but shows new matter not before disclosed, by which that apparent right is done away, namely, that the plaintiff executed to him a release. Again, if the plaintiff reply that such release was obtained by duress. In his replication he impliedly admits, that the defendant has, prima facie, a good defence, namely, that such release was executed as alleged in the plea; and that the defendant therefore would be discharged; but relies on new matter by which the plea is avoided, namely, that the release was obtained by duress. The plea in this case, therefore, gives colour to the declaration, and the replication, to the plea. But let it be supposed that the plaintiff has replied, that the release was executed by him, but to another person, and not to the defendant; this would be an informal replication wanting colour; because, if the release were not to the defendant, there would not exist even an apparent defence, requiring the allegation of new matter to avoid it, and the plea might be sufficiently answered by a traverse, denying that the deed stated in the plea, is the deed of the plaintiff. See Steph. PI. 220; 1 Chit. PI. 498; Lawes Civ. PI. 126; Arch. PI. 211; Doct. PI. 17; 4 Vin. Abr. 552; Bac. Abr. Pleas, &c, I 8; Com. Dig. Pleader, 3 M 40, 3 M 41. See an example of giving colour in pleadings in the Roman law, Inst. lib. 4, tit. 14, De replicationibus.

COLOUR OF OFFICE, criminal law, is a wrong committed by an officer under the pretended authority of his office. In some cases the act amounts to a misdemeanor, and the party may then be indicted; in other cases the remedy to redress the wrong is by an action.

COLT. An animal of the horse species, whether male or female, not more than four years old. Russ. & Ry. 416.

COMBINATION. A union of different things. A patent may be taken out for a new combination of existing machinery or machines. See 2 Mason, 112; and Composition of matter.

COMBUSTIO DOMORUM, burning of houses; arson. Vide 4 Bl. Com. 372.

COMES, pleading. In a plea the defendant says, " And the said C D, by E F, his attorney comes, and defends, &c. The word comes, venit, expresses the appearance of the defendant in court. It is taken from the style of the entry of the proceedings on the record and formed

no part of the viva voce pleading. It is, accordingly not considered, as in strictness, constituting a part of the plea. 1 Chit. PI. 411; Steph. PI. 432.

COMITATUS, a county. Most of the states are divided into counties; some, as Louisiana, are divided into parishes.

COMMAND. This word has several meanings. 1. It signifies an order; an apprentice is bound to obey the lawful command of his master; a constable may command rioters to keep the peace.—2. A request or suggestion ; he who commands another to do an unlawful act, is accessary to it. 3 Inst. 51, 57; 2 Inst. 182.—3. Command is also equivalent to deputation or voluntary substitution ; as, when a master employs one to do a thing, he is said to have commanded him to do it; and he is responsible accordingly. Story, Ag. § 454, note.

COMMENCEMENT OF A SUIT OR ACTION. The suit is considered as commenced from the issuing of the writ, 3 Bl. Com. 273, 285; 7 T. R. 4; 1 Wils. 147; 18 John. 14; Dunl. Pr. 120; 2 Phil. Ev. 95; 7 Verm. R. 420; 6 Monr. R. 560; Peck's R. 276; 1 Pick. R. 202; lb. 227; 2 N. H. Rep. 36; 4 Cowen, R. 158; 8 Cowen, 203; 3 John. Cas. 133; 2 John. R. 342; 3 John. R. 42; 15 John. R. 42; 17 John. R. 65; 11 John. R. 473;. and if the teste or date of the writ be fictitious, the true time of its issuing may be averred and proved, whenever the purposes of justice require it; as in cases of a plea of tender or of the statute of limitations. Bac. Ab. Tender D; 1 Stra. 638 ; Peake's Ev. 259; 2 Saund. 1, n. 1. In Connecticut the service of the writ is the comencement of the action. 1 Root, R. 487; 4 Conn. 149; 6 Conn. R. 30; 9 Conn. R. 530; 7 Conn. R. 558; 21 Pick. R. 241. Vide Lis Pendens.

COMMENDAM, eccles. law. When a benefice or church living is void or vacant, it is commended to the care of some sufficient clerk to be supplied, until it can be supplied with a pastor; he to whom the church is thus commended is said to hold in commendam, and he is entitled to the profits of the living. Hob. 144; Latch, 236. In Louisiana, there is a species of limited partnership called a partnership in commendam. It is formed by a contract, by which one person or partnership agrees to furnish another person or partnership a certain amount, either in property or money, to be employed by the person or partnership to whom it is furnished, in his or their own name or firm, on condition of receiving a share in the profits, in the proportion determined by the contract, and of being liable to losses and expenses, to the amount furnished, and no more. Civ. Code of Lo. art. 2810. A similar partnership exists in France. Code de Comm. 26, 33; Sirey, tom. 12, part 2, p. 25. He who makes this contract, is called in respect to those to whom he makes the advance of capital, a partner in commendam. Civ. Code of Lo. art. 2811.

COMMENDATARY. A person who holds a church living or presentment in commendam.

COMMENDATORS, eccl. law, are secular persons upon whom ecclesiastical benefices are bestowed, because they were commended and instructed to their oversight; they are merely trustees.

COMMERCE, trade, contracts, is the exchange of commodities for commodities; considered in a legal point of view, it consists in the various agreements which have for their object to facilitate the exchange of the products of the earth or industry of man, with an intent to realise a profit. Pard. Dr. Com. n. 1. In a narrower sense, commerce signifies

any reciprocal agreements between two persons, by which one delivers to the other a thing, which the latter accepts, and for which he pays a consideration; if the consideration be money, it is called a sale; if any other thing than money, it is called exchange or barter. Domat, Dr. Pub. liv. 1, tit. 7, s. 1, n. 2; Congress have power by the constitution to regulate commerce with foreign nations and among the several states, and with the Indian tribes. 1 Kent, Com. 431 ; Story on Const. § 1052 et seq. The sense in which the word commerce is used in the constitution seems not only to include traf. fic but intercourse, and navigation. Story, § 1057; 9 Wheat. 190, 191, 215,229; 1 Tuck. Bl. App. 249 to 252. Vide 17 John. R. 488; 4 John. Ch. R. 150; 5 John. Ch. R. 300; 1 Halst. R. 285; Id. 236; 3 Cowen, R. 713; 12 Wheat. R. 419; 1 Brock. R. 423; 11 Pet. R. 102; 6 Cowen, R. 169; 3 Dana, R. 274; 6 Pet. R. 515; 13 S. & R. 205.

COMMISSARY is an officer whose principal duties are to supply the army with provisions. The act of April 14, 1818, s. 6, requires that the president, by and with the consent of the senate, shall appoint a commissary general with the rank, pay, and emoluments of the colonel of ordnance, and as many assistants, to be taken from the subalterns of the line, as the service may require. The commissary general and his assistants shall perform such duties, in the purchasing and issuing of rations to the armies of the United States, as the president may direct. The duties of these officers are further detailed in the subsequent sections of this act, and in the act of March 2, 1821.

COMMISSION, in contracts, is when one undertakes without reward, to do something for another in respect to a thing bailed. This term is frequently used synonymously with

« SebelumnyaLanjutkan »