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mandate, (q. v.) Ruth. Inst. 105; Halifax, Analysis of the Civil Law, 70. If the service the party undertakes to perform for another is the custody of his goods, this particular sort of commission is called a charge. In a commission, the obligation on his part who undertakes it, is to transact the business without wages, or any other reward, and to use the same care and diligence in it, as if it was his own.
COMMISSION, office. Persons authorised to act in a certain matter; as, such a matter was submitted to the commission; there were several meetings before the commission. 4 B. & Cr. 850; 10 E. C. L. R. 459.
COMMISSION, crim. law, is the perpetration of an offence; as there are crimes of commission and crimes of omission.
COMMISSION, government.— Letters-patent granted by the government, under the public seal, to a person appointed to an office, giving him authority to perform the duties of his office. The commission is not the appointment, but only evidence of it; and as soon as it is signed and sealed, vests the office in the appointee. 1 Cranch, 137; 2 N. & M. 357; see Pet. C. C. R. 194; 2 Sumn. 299; 8 Conn. 109; 1 Penn. 297; 2 Const. Rep. 696; 2 Tyler, 235.
COMMISSION, practice. An instrument issued by a court of justice, or other competenttribunal, to authorise a person to take depositions, or do any other act by authority of such court, or tribunal, is also called a commission. For a form of a commission to take depositions, see Gresley, Eq. Ev. 72.
COMMISSION OF REBELLION, chan. prac, is the name of a writ issuing out of chancery generally directed to four special commissioners, named by the plaintiff, commanding them to attach the de
fendant wheresoever he may be found within the state, as a rebel and contemner of the law, so as to have him in chancery on a certain day therein named. This writ may be issued after an attachment with proclamation, and a return of non est inventus. Blake's Ch. Pr. 102; Newl. Ch. Pr. 14.
COMMISSIONER OF PATENTS. The name of an officer of the United States, whose duties are detailed in the act to promote the useful arts, &c, which will be found [ under the article Patent. l COMMISSIONER, officer. One I who has a lawful commission to execute a public office; but in a more restricted sense it is one who is authorised to execute a particular duty, as, commissioner of the revenue, canal commissioner: the term when used in this latter sense is not applied, for example, to a judge. There are commissioners, too, who have no regular commissions, and derive their authority from the elections held by the people. County commissioners, in Pennsylvania, are officers of the latter kind.
COMMISSIONERS OF BAIL, in practice, are officers appointed by some courts to take recognizances of bail in civil cases.
COMMISSIONS, in contracts, practice, are an allowance or compensation to an agent, factor, executor, trustee or other person who man
[ ages the affairs of others, for his services in performing the same. The right of agents, factors or other contractors to a commission, may either be the subject of a special contract,
j or rest upon the quantum meruit. 9 C. & P. 559; 38 E. C. L. R. 227; 3 Smith's R. 440; 7 C. & P. 584; 32 E. C. L. R. 641; Sugd. Vend. Index, tit. Auctioneer. This com, pensation is usually the allowance of a certain per centage upon the actual amount or value of the business done. When there is a usage of trade at the particular place, or in the particular business in which the agent is engaged, the amount of commissions allowed to auctioneers, brokers and factors, is regulated by such usage. 3 Chit. Com. Law, 221; Smith on Merc. Law, 54; Story, Ag. § 326; 3 Camp. R. 412; 4 Camp. R. 96; 2 Stark. R. 225, 294. The commission of an agent is either ordinary or del credere, (q. v.) The latter is an increase of the ordinary commission, in consideration of the responsibility which the agent undertakes, by making himself answerable for the solvency of those with whom he contracts. Liverm. Agency, 3, et seq.; Paley, Agency, 88, et seq. In Pennsylvania the amount of commissions allowed to executors and trustees is generally fixed at five per centum on the sum received and paid out, but this is varied according to circumstances. 9 S. & R. 209, 223; 4 Whart. 98; 1 Serg. & Rawlc, 241. In England no commissions are allowed to executors or trustees. I Vern. R. 316, n. and the cases there cited; 4 Ves. 72, n.
COMMITMENT, criminal law, practice. The warrant or order by which a court or magistrate directs a ministerial officer to take a person to prison. The commitment is either for further hearing, (q. v.) or it is final. The formal requisites of the commitment are, 1st, that it be in writing under hand and seal, and show the authority of the magistrate, and the time and place of making it. 3 Har. & McHen. 113; cure 280; 3 Cranch, R. 448; see Harp. R. 313, where it is said a seal is not indispensable. 2d. It must be made in the name of the United States, 6r of the commonwealth, or people, as required by the constitution of the United States or of the several states. 3d, It should be directed to the keeper of the prison, and not generally to carry
the party to prison, 2 Str. 934; 1 Ld. Raym. 45*4. 4th, The prisoner should be described by his name and surname, or the name he gives as his. 5th, The commitment ought to state that the party has been charged on oath. 3 Cranch, R. 448. But see
2 Virg. Cas. 504; 2 Bail. R. 290. 6th, The particular species of crime charged against the prisoner should be mentioned with convenient certainty. 3 Cranch, R. 448; 11 St. Tr. a04, 318; Hawk. B. 2, c. 16, s. 16; 1 Chit. Cr. Law, 110. 7th, The commitment should point out the place of imprisonment, and not merely direct that the party be taken to prison. 2 Str. 934; 1 Ld. Ray. 424. 8th, In a final commitment, the authority to the keeper of the prison should be to keep the prisoner "until he shall be discharged by due course of law," when the offence is not bailable; when it is bailable the gaoler should be directed to keep the prisoner in his "said custody for want of sureties, or until he shall be discharged by due course of law." When the commitment is not final, it is usual to commit the prisoner " for further hearing." The commitment is also called a mittimus, (q. v.) The act of sending a person to prison charged with the commission of a crime by virtue of such a warrant is also called a commitment. Vide generally, 4 Vin. Ab. 576; Bac. Ab. h. t.; 4 Cranch, R. 129; 4 Dall. R. 412; 1 Ashm. R. 248; 1 Cowen, R. 144;
3 Conn. R. 502; Wright, R. 691; 2 Virg. Cas. 276; Hardin, R. 249; 4 Mass. R. 497; 14 John. R. 371 ; 2 Virg. Cas. 504; 1 Tyler, R. 444; U. S. Dig. h. t.
COMMITTEE, practice. When a person has been found non compos, the law requires that a guardian should be appointed to take care of his person and estate; this guardian is called the committee. It is usual to select the committee from the next of kin, Shelf, on Lun. 137; and in case of the lunacy of the husband or wife, the one who is sound is entitled, unless under very special circumstances, to be the committee of the other, lb. 140. This is the committee of the person. For committee of the estate the heir at law is most favoured; relations are preferred to strangers, but the latter may be appointed. Ib. 144. It is the duty of the committee of the person to take care of the lunatic; and the committee of the estate is bound to administer the estate faithfully, and to account for his administration. He cannot in general make contracts in relation to the estate of the lunatic, or bind it without a special order of the court or authority that appointed him. Ib. 179.
COMMITTEE, legislation. One or more members of a legislative body to whom is specially referred some matter before that body, in order that they may investigate and examine into it and report to those who delegated this authority to them.
COMMIXTION, civil law. This term is used to signify the act by which goods are mixed together. The matters which are mixed are dry or liquid. In the commixtion of the former, the matter retains its substance and individuality; in the latter the substances no longer remain distinct. The commixtion of liquids is called confusion, (q. v.) and that of the solids is a mixture. Lee. Elem. du Dr. Rom. § 370, 371 ; Story, Bailm. § 40.
COMMODATE, contracts, a term used in the Scotch law, which is synonymous to the Latin commodatum, or loan for use. Ersk. Inst. B. St, t. 1, § 20; 1 Bell's Com. 225; Ersk. Pr. Laws of Scotl. B. 3, t. 1, § 9. Judge Story regrets this term bas not been adopted and naturalized as mandate has been from mandatum. Story, Com. § 221. Aylifie,
in his Pandects, has gone further and terms the bailor the commodant and the bailee the commodutory, thus avoidingthosecircumlocutions, which, in the common phraseology of our law, have become almost indispensable. Ayl. Pand. B. 4, t. 16, p. 517. Browne, in his Civil Law, vol. 1, 352, calls the property loaned "commodated property." See Borrower; Loan for use; Lender.
COMMON, or right of common, in the English law, is an incorporeal hereditament which consists in a profit which a man has in the lands of another. 12 S. & R. 32; 10 Wend. R. 647; 11 John. R. 498. Common is of four sorts; of pasture, piscary, turbary and estovers. Finch's Law, 157; Co. Litt. 122; 2 Inst. 86; 2 Bl. Com. 32.
1. Common of pasture is a right of feeding one's beasts on another's land, and is either appendant, appurtenant or in gross. Common appendant is of common right, and it may be claimed in pleading as appendant without laying a prescription. Hargr. note to 2 Inst. 122, a, note. Rights of common appurtenant to the claimant's land are altogether independent of the tenure, and do not arise from any absolute necessity; but may be annexed to lands in other lordships, or extended to other beasts, besides such as are generally commonable. Common in gross, or at large is such as is neither appendant nor appurtenant to land, but is annexed to a man's person. All these species of pasturable common, may be and usually are limited as to number and time; but there are also commons without stint, and which last all the year. 2 Bl. Com. 34.
2. Common of piscary is a liberty of fishing in another man's water. Ib. See Fishery.
3. Common of turbary is a liberty of digging turf in another man's ground. Ib.
4. Common of estovers is a liberty of taking necessary wood for the use or furniture of a house or farm from another man's estate. Ib.; 10 Wend. R. 639. See Estovers.
The right of common is little known in the United States, yet there are some regulations to be found in relation to this subject. The constitution of Illinois provides for the continuance of certain commons in that state. Const, art. 8, s. 8. All unappropriated lands on the Chesapeake Bay, on the shore of the sea, or of any river or creek, and the bed of any river or creek, in the eastern parts of the commonwealth, ungranted and used as common. it is declared by statute in Virginia, shall remain so, and not be subject to grant. 1 Virg. Rev. C. 142. In most of the cities and towns in the United States, there are considerable tracts of land appropriated to public use. These commons were generally laid out with the cities or towns where they are found, either by the original proprietors or by the early inhabitants. Vide 2 Pick. Rep. 475; 12 S. & R. 32; 2 Dane's Ab. 610; 14 Mass. R. 440; 6 Verm. 355.
See, in general, Vin. Abr. Common; Bac. Abr. Common; Com. Dig. Common; Stark. Ev. part 4, p. 383; Cruise on Real Property, h. t.; Mete. & Perk. Dig. Common, and Common lands and General fields.
COMMON BENCH, bancus communis. The court of common pleas was anciently called common bench, because the pleas and controversies there determined were between common persons.
COMMON CARRIER, contracts, is one who undertakes for hire or reward to transport the goods of such as choose to employ him, from place to place. 1 Pick. 50, 53; 1 Salk. 249, 250; Story, Bailment, § 495. Common carriers are generally of two descriptions, namely, carriers by
land and carriers by water. Of the former description are the proprietors of stage coaches, and stage wagons, which ply between different places, and carry goods for hire; and truckmen, teamsters, cartmen, and porters, who undertake to carry goods for hire, as a common employment, from one part of a town or city to another, are also considered as common carriers. Carriers by water are the masters and owners of ships and steam-boats engaged in the transportation of goods for persons generally, for hire; and lightermen, hoy men, barge-owners, ferrymen, canal boatmen, and others employed in like manner, are so considered.
By the common law, a common carrier is generally liable for all losses which may occur to property entrusted to his charge in the course of business, unless he can prove the loss happened in consequence of the act of God, or of the enemies of the United States, or by the act of the owner of the property. 8 S. & R. 533; 6 John. R. 160; 11 John R. 107; 4 N. H. Rep. 304; Harp. R. 469 ; Peck. R. 270; 7 Yerg. R. 340; 3 Munf. R. *39; 1 Conn. R. 487; 1 Dev. & Bat. 273; 2 Bail. Rep. 157. It has been attempted to relax the rigor of the common law in relation to carriers by water, 6 Cowen, 266; but that case seems to be at variance with other decisions, 2 Kent, Com. 471, 472; 10 Johns. 1; 11 Johns. 107. In respect to carriers by land, the rule of the common law seems every where admitted in its full rigour in the states governed by the jurisprudence of the common law. Louisiana follows the doctrine of the civil law in her code. Proprietors of stage coaches or wagons whose employment is solely to carry passengers, as hackney coachmen, are not deemed common carriers; but if the proprietors of such vehicles for passengers, also carry goods for hire, they are, in respect of such goods, to be deemed common carriers. Bac. Ab. Carriers, A ; 2 Show. Rep. 128; 1 Salk. 282; Com. Rep. 25; 1 Pick. 50. The like reasoning applies to packet ships and steam-boats, which ply between different ports, and are accustomed to carry merchandise as well as passengers 2 Watts, R. 443; 5 Day's Rep. 415; 1 Conn. R. 54; 4 Greenl. R. 411 ; 5 Yerg. R. 427; 4 Har. & J. 291; 2 Verm. R. 92; 2 Binn. Rep. 74; 1 Bay, Rep. 99; 10 John. R. I; 11 Pick. R. 41; 3 Stew. & Port. 135; 4 Stew. & Port. 382;
3 Misso. R. 264; 2 Nott & M. 88. But see 6 Cowen, R. 266. The rule which makes a common carrier responsible for losses of goods, does not extend to the carriage of intelligent beings; a carrier of slaves, is, therefore, answerable only for want of care and skill. 2 Pet. S. C. R. 150;
4 M'Cord, R. 223; 4 Port. R. 238. A common carrier of goods is in
all cases entitled to demand the price of carriage before he receives the goods, and, if not paid, he may refuse to take charge of them; if, however, he take charge of them without the hire being paid he may afterwards recover it. The compensation which becomes due for the carriage of goods by sea, is commonly called freight, (q. v.); and see also Abb. on Sh. part 3, c. 7. The carrier is also entitled to a lien on the goods for his hire, which, however, he may waive, but if once waived, the right cannot be resumed. 2 Kent, Com. 497. The consignor or shipper is commonly bound to the carrier for the hire or freight of goods, 1 T. R. 659. But whenever the consignee engages to pay it, he also may become responsible. It is usual in bills of lading to state, that the goods are to be delivered to the consignee or to his assigns he or they paying freight, in which case the consignee and his assigns by accepting the
goods by implication become bound to pay the freight; and the fact that the consignor is also liable to pay it, will not in such case make any difference. Abbott on Sh. part 3, c. 7, §4.
What is said above relates to common carriers of goods. The duties, liabilities, and rights of carriers of passengers are now to be considered. These are divided into carriers of passengers on land, and carriers of passengers on water. First, of carriers of passengers on land. The duties of such carriers are, 1st, those which arise on the commencement of the journey; that is, 1. To carry passengers whenever they offer themselves and are ready to pay for their transportation; they have no more right to refuse a passenger if they have sufficient room and accommodation, than an innkeeper has a guest. 3 Brod. & Bing. 54; 9 Price's R. 408; 6 Moore, R. 141; 2 Chit. R., 1; 4 Esp. R. 460; 1 Bell's Com. 462; Story, Bailm. § 591.—2. To provide coaches reasonably strong and sufficient for the journey, with suitable horses, trappings and equipments.—3. To provide careful drivers of reasonable skill and good habits for the journey; and to employ horses which are steady and not vicious, or likely to endanger the safety of the passengers.—4. Not to overload the coach either with passengers or luggage.— 5. To receive and take care of the usual luggage allowed to every passenger on the journey.—2dly, Their duties on the progress of the journey.—1. To stop at the usual places, and allow the usual intervals for the refreshment of the passengers, 5 Petersd. Ab. Carriers, p. 48, note. —2. To use all the ordinary precautions for the safety of passengers on the road.—3dly, Their duties on the termination of the journey.—1. To carry the passengers to the end