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of the journey.—2. To put them down at the usual place of stopping, unless there has been a special contract to the contrary, and then to put them down at the place agreed upon.
1 Esp. R. 27. The liabilities of such carriers. They are bound to use extraordinary care and diligence to carry safely those whom they take in their coaches. 2 Esp. R. 533;
2 Camp. R. 79; Peake's R. 80. But, not being insurers, they are not responsible for accidents when all reasonable skill and diligence have been used. The rights of such carriers are: 1, to demand and receive their fare at the time the passenger takes his seat.—2. They have a lien on the baggage of the passenger for his fare or passage money, but not on the person of the passenger, nor the clothes he has on. Abb. on Sh. part 3, c. 3, § 11; 2 Campb. R. 631. Second; Carriers of passengers by water. By the act of Congress of 2d of March, 1819, 3 Story's Laws U. S. 1722, it is enacted, 1, that no masters of a vessel bound to or from the United States shall take more than two passengers for every five tons of the ship's custom-house measurement; 2, that the quantity of water and provisions, which shall be taken on board and secured under deck, by every ship bound from the United States to any port on the continent of Europe, shall be sixty gallons of water, one hundred pounds of salted provisions, one gallon of vinegar, and one hundred pounds of wholesome ship bread, for each passenger, besides the stores of the crew. The tonnage here mentioned, is the measurement of the custom house; and in estimating the number of passengers in a vessel, no deduction is to be made for children or persons not paying, but the crew is not to be included. Gilp. R. 334. In New York, statutory regulations have been made in relation to their canal navi
gation. Vide 6 Cowen's R. 698. As to the conduct of carrier vessels on the ocean, vide Story, Bailm. § 607 et seq.; Marsh. Ins. B. 1, c. 12, s. 2. And see generally 1 Vin. Ab. 219; Bac. Ab. h. t.; 1 Com. Dig. 423; Petersd. Ab. h. t.; Dane's Ab. Index, h. t ; 2 Kent, Com. 464; 16 East, 247, note.
In Louisiana carriers and watermen are subject, with respect to the safe keeping and preservation of the things entrusted to them, to the same obligations and duties, which are imposed on tavern keepers, Civ. Code, art. 2722, that is, they are responsible for the effects which are brought though they were not delivered into their personal care, provided, however, they were delivered to a servant or person in their employment, art. 2937; they are responsible if any of the effects be stolen or damaged, either by their servants or agents, or by strangers, art. 2938; but they are not responsible for what is stolen by force of arms or with exterior breaking open of doors, or by any other extraordinary violence, art. 2939. For the authorities on the subject of common carriers in the civil law, the reader is referred to Dig. 4, 9, 1 to 7; Poth. Pand. lib. 4, t. 9; Domat, liv. 1. t. let, s. 1 and 2; Pard. art. 537 to 555; Code Civil, art. 1782, 1786, 1952; Moreau & Carlton, Partidas 5, t. 8, 1. 26; Ersk. Inst. B. 3, t. 1, § 28; 1 Bell's Com. 465; Abb. on Sh. part 3, c. 3, § 3, note (1); 1 Voet, ad Pand. lib. 4, t. 9; Merl. Rep. mots Voiture, Voiturier; Diet. de Police, Voiture.
COMMON INTENT, construction. The natural sense given to words. It is a rule that when words are used which will bear a natural sense and an artificial one, or one to be made out by argument and inference, the natural sense shall prevail; ft is simply a rule of construction and not of addition; common intent cannot add to a sentence words which have been omitted. 2 H. Black. 530. In pleading, certainty is required, but certainty to a common intent is sufficient, that is, what upon a reasonable construction may be called certain, without recurring to possible facts. Co. Litt. 203, a; Dougl. 163. See Certainty.
COMMON LAW. See Law, common.
COMMON, TENANTS IN, vide Tenant in common; Estate in common.
COMMON PLEAS. The name of a court having jurisdiction generally of civil actions. Vide Common Bench.
COMMON RECOVERY. Vide Recooery.
COMMON SCOLD, crim. law, communis rixatrix, is a woman who in consequence of her scolding, is a public nuisance to the neighbourhood. Such a woman may be indicted, and on conviction punished. At common law, the punishment was by being placed in a certain engine of correction called the trebucket or cucking stool. This barbarous punishment has been abolished in Pennsylvania, where the offence may be punished by fine and imprisonment. 12 Serg. & Rawle, 220; vide 1 Russ. on Cr. 302; Hawk. B. 2, c. 25, s. 59; 1 T. R. 756; 4 Rogers's Rec. 174; 6 Rogers's Rec. 90; Roscoe on Cr. Ev. 665.
COMMON SENSE, med. jur. When a person possesses those perceptions, associations and judgments in relation to persons and things which agree with those of the generality of mankind, he is said to possess common sense ; and, on the contrary, when a particular individual differs from all others in these respects, he is said not to have common sense, or not to be in his senses. 1 Chit. Med. Jur. 334.
COMMONWEALTH, government, is that form of government in which the administration of public affairs is open, or common to all persons, without any special regard to rank or property, as distinguished from monarchy or aristocracy. A republic. The United States of America are so many commonwealths.
COMMORANCY, persons, an abiding dwelling, or continuing as an inhabitant in any place. It consists properly in sleeping usually in any place.
COMMUNICATION, contracts. Information; consultation; conference. In order to make a contract, it is essential there should be an agreement; a bare communication or conference will not, therefore, amount to a contract, nor can evidence of such communication be received in order to add to, take from, contradict or alter a written agreement. 1 Ball. 426; 4 Dall. 340; 3 Serg. & Rawle, 609. Vide Pourparler; Wharton's Dig. Evid. R.
COMMUNINGS, Scotch law.— This term is used to express the negociations which have taken place before making a contract, in relation to such proposed contract; the same as pourparler (q. v.) It is a general rule that such communings or conversations, and the propositions then made, are no part of the contract; for no parol evidence will be allowed to be given to contradict, alter or vary a written instrument. 1 Serg. & R. 464; Id. 27; Add. R. 361; 2 Dall. R. 172 ; 1 Binn. 616; 1 Yeates, R. 140; 12 John. R. 77; 20 John. R. 49; 3 Conn. R. 9; 11 Mass. R. 30; 13 Mass. R. 443; 1 Bibb's R. 271; 4 Bibb's R. 473; 3 Marsh. (Ky.) R. 333; Bunb. 175; 1 M. & S. 21 ; 1 Esp. C. 53; 3 Campb. R. 57.
COMMUNITY. This word has several meanings, when used in common parlance it signifies the body of the people, as such acts cannot be tolerated in a moral community. In the civil law, by community is understood corporations, or bodies politic. Dig. 3, 4. In the French law, which has been adopted in this respect in Louisiana, Civ. Code, art. 2371, community is a species of partnership, which a man and a woman contract when they are lawfully married to each other. It consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact; of the produce of the reciprocal industry and labour of both husband and wife, and of the estates which they may acquire during the marriage, either by donations made jointly to them, or by purchase, or in any other similar way, even although the purchase be made in the name of one of the two, and not of both; because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. 10 L. R. 146; Id. 172, 181; 1 N. S. 325; 4 N. S. 212. The debts contracted during the marriage enter into the community, and must be acquitted out the common fund ; but not the debts contracted before the marriage.
The community is either, first, conventional, or that which is formed by an express agreement in the contract of marriage itself; by this contract the legal community may be modified, as to the proportions which each shall take, or as to the things which shall compose it, Civ. Code of L. art. 2393; second, legal, which takes place when the parties make no agreement on this subject in the contract of marriage; when it is regulated by the law of the domicil they had at the time of marriage.
The effects which compose the community of gains, are divided into two equal portions between their heirs, at the dissolution of the marriage.
Civ. Code of L. art. 2375. SeePoth. h. t.; Toull. h. t.; Civ. Code of Lo. tit. 6, c. 2, s. 4.
COMMUTATION, punishments, is the change of a punishment to which a person has been condemned for a less rigorous one. This can be granted only by the executive authority in which the pardoning power resides.
COMMUTATIVE CONTRACT, civil law, is one in which the contracting parties give and receive an equivalent for what they give; the contract of sale is one of kind, the seller gives the thing sold, and receives the price, which is the equivalent; the buyer gives the price and receives the thing sold which is the equivalent. These contracts are usually distributed into four classes, namely; Do ut des, Facio ut facias, Facio ut des, Do ut facias. Poth. Obi. n. 13. See Civ. Code of Lo. art. 1761.
TO COMMUTE, to substitute one punishment in the place of another. For example, if a man be sentenced to be hung, the executive may, in some instances, commute his punishment to that of imprisonment.
COMPACT, contracts; in its more general sense, it signifies an agreement; in its strictest sense, it imports a contract between parties, which creates obligations and rights capable of being enforced, and con; templated as such between the parties, in their distinct and independent characters. Story, Const. B. 3, c. 3; Rutherf. Inst. B. 2, c. 6, § 1. The constitution of the United States declares that "no state shall, without the consent of congress, enter into agreement or compact with another state, or with a foreign power." See 11 Pet. 1; 8 Wheat. 1; Bald. R. 60; 11 Pet. 185.
COMPANIONS, French law.— This is a general term, comprehending all persons who compose the crew of a ship or vessel. Poth. Mar. Contr. n. 163.
COMPANY. An association of a number of individuals for the purpose of carrying on some legitimate business. This term is not synonymous with partnership, though every such unincorporated company is a partnership. Usage has reserved this term to associations whose members are in greater number, their capital more considerable, and their enterprises greater, either on account of their risk or importance. When these companies are authorised by the government, they are known by the name of corporations, (q. v.) Sometimes the word is used to represent those members of a partnership whose names do not appear in the name of the firm; as A B & Company. Vide li Toull. n. 97; Mortimer on Commerce, 128. Vide Club; Corporation; Firm; Farties to actions; Partnership.
COMPARISON OF HAND- WRITING, evidence. It is a general rule that comparison of hands is not admissible. But to this there are some exceptions; in some instances when the antiquity of the writing makes it impossible for any living witness to swear that he ever saw the party write, comparison of handwriting, with documents known to be in his handwriting, has been admitted. 7 East, R. 232; B. N. P. 236; Anthon's N. P. »8, n.; 8 Price, 653; 11 Mass. R. 309; 2 Greenl. R. 33; 2 Johns. Cas. 211; 1 Esp. Cas. 351; 1 Root, 307; Swift's Ev. 29; 1 Whart. Dig. 245; 5 Binn. R. 349; Addison's R. 33; 2 M'Cord, 518; 1 Tyler, R. 4; 6 Whart. R. 284. Vide Diploma.
COMPATIBILITY. In speaking of public offices, it is meant by this term to convey the idea that two of them may be held by the same person at the same time. It is the reverse of incompatibility, (q. v.) Vol. I.—25.
COMPENSATION, chancery practice, is the performance of that which a court of chancery order to be done on relieving a party who has broken a condition, which is to place the opposite party in no worse situation than if the condition had not been broken. Courts of equity will not relieve from the consequences of a broken condition unless compensation can be made to the opposite party. Fonb. c. 6, s. 5, n. (k.); Newl. Contr. 251 et seq.
COMPENSATION, contracts, a reward for services rendered.
COMPENSATION, contracts, in the civil law. When two persons are equally indebted to each other, there takes place a compensation between them, which extinguishes both debts. Compensation takes place of course by the mere operation of law, even unknown to the debtors; the two debts are reciprocally extinguished, as soon as they exist simultaneously, to the amount of their respective sums. Compensation takes place only between two debts, having equally for their object, a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demandable. Compensation takes place, whatever be the cause of either of the debts, except in case, I st, of a demand of restitution of a thing of which the owner has been unjustly deprived; 2dly, of a demand of restitution of a deposit and a loan for use; 3dly, of a debt which has for its cause, of aliments declared not liable to seizure. Civil Code of Louis. 220-i to 2208. Compensation is of three kinds: I, legal or by operation of law; 2, compensation by way of exception; and, 3, bv re-convention. 8. L. R. 158; Dig." lib. 16, t. 2; Code, lib. 4, t. 31; Inst. lib. 4, t. 6, s. 30; Poth. Obi partie 3eme, ch. 4eme, n. 623. Compensation very nearly resembles the set-off (q. v.) of the common law.
COMPENSATION, crim. law; eecl. law. Compensatio criminum, or recrimination, (q. v.) In cases of suits for divorce on the ground of adultery, a compensation of the crime hinders its being granted; that is, if the defendant proves that the party has also committed adultery, the defendant is absolved as to the matters charged in the libel of the plaintiff. Ought. tit. 214, pl. 1; Clarke's Prax. tit. 115; Shelf, on Mar. & Div. 439; 1 Hagg. Cons. R. 148. See Condonation; Divorce.
COMPERUIT AD DIEM, pleading. He appeared at the day. This is the name of a plea in bar to an action of debt on a bail bond. For forms of this plea, vide 5 Wentw. 470; Lil. Entr. 114; 2 Chit. PI. 527. When the issue is joined on this plea, the trial is by the record. Vide 1 Taunt. 23; Tidd, 239. And see generally, Com. Dig. Pleader, 2 W 31; 7 B. & C. 478.
COMPETENCY, evidence, is the legal ability of a witness to be heard on the trial of a cause. This term is also applied to written or other evidence which may be legally given on such trial, as, depositions, letters, account books, and the like. Prima facie every person offered is a competent witness, and must be received unless his incompetency (q. v.) appears. 9 State Tr. 652. There is a difference between competency and credibility. A witness may be competent, and, on examination, his story may be so contradictory and impro- j bable that he may not be believed; on the contrary he may be incompetent, for example, on account of interest, and be perfectly credible if he were examined. The court are the sole judges of the competency of a witness, and may, for the purpose of deciding whether the witness is or is not competent, ascertain all the facts necessary to form a judgment. Vide 8 Watts, R. 227, and articles
Credibility; Incompetency; Interest; Witness.
COMPLAINT, crim. law, is the allegation made to a proper officer, that some person, whether known or unknown, has been guilty of a designated offence, with an offer to prove the fact, and a request that the offender may be punished. To have a legal effect, the complaint must be supported by such evidence as shows that an act which constitutes an. offence has been committed, and renders it certain or probable that it was committed by some person named or described in the complaint.
COMPOS MENTIS, of sound mind. These words are seldom used, they are the opposite to the words non compos mentis, (q. v.)
COMPOSITE STATE. A name sometimes given to sovereign states permanently united together by a federal compact, with a supreme federal government. According to this definition the United States of America are a composite state.
COMPOSITION, contracts. An agreement, made upon a sufficient consideration, between a debtor and creditor, by which the creditor accepts part of the debt due to him in satisfaction of the whole. Montagu on Compos. 1; 3 Co. 118; Co. Litt. 212, b; 4 Mod. 88; 1 Str. 426; 2 T. R. 24, 26; 2 Chit. R. 541, 564; 5 D. & R. 56; 3 B. & C. 242; 1 R. & M. 138; 1 B. & A. 103, 440; 3 Moore's R. 11 ; 6 T. R. 263; 1 D. & R. 493; 2 Campb. R. 283; 2 M. & S. 120; 1 N. R. 124; Harr. Dig. Deed VIII. In England compositions were formerly allowed for crimes and misdemeanors, even for murder.
COMPOSITION OF MATTER. In describing the subjects of patents, the act of congress of July 4, 1836, sect. 6, uses the words " composition of matter;" these words are usually applied to mixtures and chemical