« SebelumnyaLanjutkan »
compositions, and in these cases it is enough that the compound is new. Both the composition and the mode of compounding may be considered to be included in the invention, when the compound is new.
COMPOUNDER, in Louisiana. He who makes a composition. An amicable compounder is one who has undertaken by the agreement of the parties to compound or settle differences between them. Code of Pract. of ho. art. 444.
COMPOUNDING A FELONY, crimes, is the act of a party immediately aggrieved, who agrees with a thief or other felon, that he will not prosecute him on condition that he return to him the goods stolen, or who takes a reward not to prosecute. This is an offence punishable by fine and imprisonment. The mere retaking by the owner of stolen goods, is no offence unless the offender is not to be prosecuted. Hale, P. C. 546; 1 Chit. Cr. Law, 4.
COMPROMISE, contracts, is an agreement between two or more persons, who, to avoid a lawsuit amicably settle their differences, on such terms as they can agree upon; vide Com. Dig. App. tit. Compromise. In the civil law, a compromise is an agreement between two or more persons, who, wishing to settle their disputes, refer the matter in controversy to arbitrators, who are so called because those who choose them, give them full powers to arbitrate and decide what shall appear just and reasonable, to put an end to the differences of which they are made the judges. 1 Domat, Lois Civ. liv. 1, t. 14; vide Submission; Ch. Pr. Index, h. t.
COMPTROLLERS, are officers who bear this name, in the treasury department of the United States. There are two comptrollers. It is the duty of the first to examine all accounts settled by the first and fifth
auditors, and certify the balances arising thereon to the register; to countersign all warrants drawn by the secretary of the treasury, other than those drawn on the requisitions of the secretaries of the war and navy departments, which shall be warranted by law; to report to the secretary the official forms to be issued in the different offices for collecting the public revenues, and the manner and form of stating the accounts of the several pesons employed therein; and to superintend the preservation of the public accounts, subject to his revision; and to provide for the payment of all moneys which may be collected. Act of March, 3,1817, sect. 8; Act of Sept. 2,1789, s. 2; Act of March 7, 1822. To superintend the recovery of all debts due to the United States; to direct suits and legal pro- ceeding, and to take such measures as may be authorised by the laws, to enforce prompt payment of all such debts. Act of March 3,1817, sect. 10; Acts of Sept. 2, 1789, s. 2; to lay before congress annually, during the first week of their ses. sion, a list of such officers as shall have failed in that year, to make the settlement required by law; and a statement of the- accounts in the treasury, war, and navy departments, which may have remained more than three years unsettled, or on which balances appear to have been due more than three years prior to the thirtieth day of September, then last past; together with a statement of the causes which have prevented a settlement of the accounts, or the recovery of the balances due to the United States. Act of March 3, 1809, sect. 2. Besides these, this officer is required to perform minor duties, which the plan of this work forbids to be enumerated here. His salary is three thousand five hundred dollars per annum. Act of Feb. 20, 1804, s. 1. * The duties of the second comptroller are to examine all accounts settled by the second, third and fourth auditors, and certify the balances arising thereon to the secretary of the department in which the expenditure has been incurred ; to countersign all the warrants drawn by the secretary of the treasury upon the requisition of the secretaries of the war and navy departments, which shall be warranted by law; to report to the said secretaries the official forms to be issued in the different offices for disbursing public money in those departments, and the manner and form of keeping and stating the accounts of the persons employed therein, and to superintend the preservation of public accounts subject to his revision. His salary is three thousand dollars per annum. Act of March », 1817, s. 9 and 15; Act of May 7, 1822.
COMPULSION. The forcible inducement to do an act. Coercion, (q. v.)
COMPURGATOR. Formerly when a person was accused of a crime, or sued in a civil action, he might purge himself upon oath of the accusation made against him, whenever the proof was not the most clear and positive; and if upon his oath dc declared himself innocent, he was absolved. This usage so eminently calculated to create fraud, and encourage perjury by impunity, was soon found to be dangerous to the public safety. To remove this evil the laws were changed by requiring that the oath should be administered with the greatest solemnity; but the form was soon disregarded, for the mind became easily familiarized to those ceremonies which at first imposed on the imagination, and those who cared not to violate the truth, did not hesitate to treat the form with contempt; in order to give a
greater weight to the oath of the accused the law was again altered so as to require that the accused should appear before the judge with a certain number of his neighbours, relations or friends; who should swear that they believed that the accused had sworn truly. This new species of witnesses were called compurgators. The number of compurgators varied according to the nature of the charge and other circumstances. Encycloyedie, h. t. Vide Du Cange, Gloss. voc. Juramentum; Spelman's Gloss. voc. Assarth; Merl. Rep. mot Conjurateurs. By the English law when a party was sued in debt on simple contract, detinue, and perhaps some other forms of action, the defendant might wage his law, by producing eleven compurgators who would swear they believed him on his oath, by which he discharged himself from the action in certain cases. Vide 3 Bl. Com. 341-348; Barr. on the Stat. 344.
COMPUTATION, counting, calculation. It is a reckoning or ascertaining the number of any thing. It is used in the common law for the true and indifferent account and construction of time. For the computation of a year, see Com. Dig. Ann; of a month, Com. Dig. Temps A;
1 John. Cas. 1(10; 15 John. R. 120;
2 Mass. 170, n.; 4 Mass. 460; 4 Dall. 144; 3 S. & R. 169; of a day, vide Day; and 3 Burr. 1434; 11 Mass. 204; 2 Browne, 18; Dig. 3, 4,5; Salk. 625; 3 Wils. 274. It is a general rule that when an act is to be done within a certain time, one day is to be taken inclusively, and one exclusively- Vide Loffi, 276; Dougl. 463; 2 Chit. Pr. 69; 3 Id. .108, 9; 3 T. R. 623; a Campb. R. 294; 4 Man. & Rvl. 300, n. (b); 5 Bingh. R. 339: S. C. 15 E. C. L. R. 462; 3 East, R. 407; Hob. 139; 4 Moore, R. 465; Harr. Dig. Time, computation of; 3 T. R. 623; 5 T.
R. 283; 2 Marsh. R. 41; 22 E. C. L. R. 270; 13 E. C. L. R. 238; 24 E. C. L. R. 53; 4 Wash. C. C. R. 232; 1 Mason, 176; 1 Pet. 60; 4 Pet. 349; 9 Cranch, 104; 9 Wheat. 581. Vide Day; Hour; Month; Year.
CONCEALMENT, contracts, is the unlawful suppression of any fact or circumstance, by one of the parties to a contract, from the other, and which in justice ought to be made known. 2 Bro. Ch. R. 420; 1 Fonbl. Eq. B. 1, c. 3, § 4, note (n) ; 1 Story, Eq. Jur. § 207.
Fraud clearly occurs when one person substantially misrepresents or conceals a material fact peculiarly within his own knowledge, in consequence of which a delusion exists; or uses a device naturally calculated to lull the suspicions of a careful man, and induce him to forgego inquiry into a matter upon which the other party has information although such information be not exclusively within his reach. 2 Bl. Com. 451; 3 lb. 166; Sugd. Vend. 1 to 10; 1 Com. Contr. 38; 3 B. & C. 623; 5 D. &R. 490; 2 Wheat. 183; 11 lb. 59; 1 Pet. Sup. C. R. 15, 16. The party is not bound however to disclose patent defects. Sugd. Vend. 2.
In insurances, where fairness is so essential to the contract, a concealment which is only the effect of accident, negligence, inadvertence, or mistake, if material, is equally fatal to the contract as if it were intentional and fraudulent. 1 Bl. R. 594 ; 3 Burr. 1909. The insured is required to disclose all the circumstances which are within his own knowledge only, and which increase the risk. He is not, however, bound to disclose general circumstances which apply to all policies of a particular description; notwithstanding they may greatly increase the risk. Under this rule it has been decided
. that a policy was void, which was 1 obtained by the concealment by the . assured of the fact that he had heard [ that a vessel like his was taken. 2 . P. Wms. 170. And in a case where
• the assured had information of "a violent storm," about eleven hours
i after his vessel had sailed, and had : stated only that "there had been
• blowing weather and severe storms on the coast after the vessel had sailed," but without any reference to the particular storm, it was decided that this was a concealment which vitiated the policy. 2 Caines, R. 57. Vide 1 Marsh. Ins. 468; Park, Ins. 276; 14 East, R. 494; 1 John. R. 522.
Fraudulent concealment avoids the contract. See generally, Verpl. on Contr. passim.; Marsh. Ins. B. 1, c. 9; 1 Bell's Com. B. 2, pt. 3, c. 1, s. 3, § 1; 1 M. & S. 517; 2 Marsh. R. 336.
CONCESSI, conveyancing; this is a Latin word signifying I have granted. It was frequently used when deeds and other conveyances were written in Latin; it had the effect of creating a covenant in law. It is a word of a general extent, and is said to amount to a grant, feoffment, lease, release and the like. 2 Saund. 96; Co. Litt. 301, 302; Dane's Ab. Index, h. t.; 5 Whart. R. 278
CONCESSION. A grant. This word is frequently used in this sense when applied to grants made by the French and Spanish governments in Louisiana.
CONCLUSION, practice. Mak. ing the last address to the court or jury. The party on whom the onus probandi is cast has the conclusion.
CONCLUSION, remedies, an es, topel; a bar; the act of a man by which he has confessed a matter or thing which he can no longer deny; as, for example, the sheriff is con- | eluded by his return to a writ, and
therefore, if upon a capias he return cepi corpus, he cannot afterwards show that he did not arrest the defendant, but is concluded by his return. Vide Plowd. 276, b; 3 Tho. Co. Litt. 600.
CONCLUSION TO THE COUNTRY, pleading. The tender of an issue to be tried by a jury, is a formula called the conclusion to the country. This conclusion is in the following words, when the issue is tendered by the defendant; "And of this the said C D puts himself upon the country." When it is tendered by plaintiff, the formula is as follows; "And this the said A B prays may be inquired of by the country." It is held, however, that there is no material difference between these two modes of expression, and that, if ponit se, be substituted for petit quod inquiralor, or vice versa, the mistake is unimportant. 10 Mod. 166. When there is an affirmative on one side, and a negative on the other, or vice versa, the conclusion should be to the country. T. Raym. 98; Carth. 87; 2 Saund. 189; 2 Burr. 1022; and so it is, though the affirmative and negative be not in express words, but only tantamount thereto. Co. Litt. 120, a; Yelv. 137; 1 Saund. 103; 1 Chit. PL 592; Com. Dig. Pleader, E 32.
CONCORD, estates, conveyances, practice, is an agreement or supposed agreement between the parties in levying a fine of lands, in which the deforciant (or he who keeps the other out of possession,) acknowledges that the lands in question, are the right of the complainant; and from the acknowledgment or recognition of right thus made, the party who levies the fine is called the cognizor, and the person to whom it is levied, the cognizee. 2 Bl. Com. 350; Cruise, Dig. tit. M, c. 2, s. 33; Com. Dig. Fine (E 9.)
CONCUBINAGE. This term has two different significations; sometimes it means a species of marriage which took place among the ancients, and which is yet in use in some countries. In this country it means the carnal connexion between a man and a woman unmarried. Vide 1 Bro. Civ. Law, 80; Merl. Rep. h. L ; Dig. 32, 49, 4; Id. 7, 1,1; Code, 5, 27 12.
CONCURRENCE, French law. It is the equality of rights, or privilege which several persons have over the same thing; as, for example, the right which two judgment creditors, whose judgments were rendered at the same time, have to be paid out of the proceeds of real estate bound by them. Diet. de Jur. h. t.
CONDEDIT, ecel. law, is the name of a plea, entered by a party to a libel filed in the ecclesiastical court, in which it is pleaded that the deceased made the will which is the subject of the suit, and that he was of sound mind. 2 Eng. Eccl. Rep. 438; 6 Eng. Eccl. Rep. 431.
CONDEMNATION, mar. law, is the sentence of a court of competent jurisdiction that a ship or vessel taken as a prize on the high seas, was liable to capture, and was properly and legally captured. By the general practice of the law of nations, a sentence of condemnation is, at present, generally deemed necessary in order to divest the title of a vessel taken as a prize; until this has been done the original owner may regain his property although the ship may have been in possession of the enemy twenty-four hours, or carried infra preesidia. 1 Rob. Rep. 134; 3 Rob. Rep. 97, n.; Carth. 423; Chit. Law of Nat. 99, 100; 10 Mod. 79; Abb. on Sh. 14; Wesk. on Ins. h. t.; Marsh, on Ins. 402. A sentence of condemnation is generally binding everywhere. Marsh. Ins. 402. The term condemnation is also applied to the sentence which declares a ship to be unfit for service: this sentence and the grounds of it may however be re-examined and litigated by parties interested in disputing it. 5 Esp. N. P. C. 65; Abb. on Shipp. 4.
CONDEMNATION, civil law, is a sentence or judgment which condemns some one to do, to give, or to pay something; or which declares that his claim or pretensions are unfounded. This word is also used by common lawyers, though it is more usual to say conviction, both in civil and criminal cases. It is a maxim that no man ought to be condemned unheard, or without the opportunity of being heard.
CONDITION, contracts, is a clause in an agreement, the validity of which depends upon a future or uncertain event. Diet. de Jurisp. Condition; Poth. Obi. p. 2, c. 3, art. 1, 5 1. See Bac. Abr. h. t. By the word condition is also understood some quality annexed to a real estate, by virtue of which it may be defeated, enlarged or created upon an uncertain event. Ib.; Co. Litt. 201, a. See Estates upon Condition.
A condition may be created by inserting the very word condition, or on condition, in the deed or agreement; there are, however, other words that will do so as effectually, as the word proviso, but then it must not depend upon another sentence. The words must be those of the grantor, and compulsory toenforce the grantee to do some act. Co. Litt. 203; Bac. Abr. Conditions, A. H.
Conditions must be lawful; those against law are void. Where the condition is entire and the whole is against law, it is void; but where the condition consists of several different parts, and some of them are lawful and others not, it is good for so much as is lawful, and void for the rest. 2 Bro. P. C. 381 ; 5 Vin. Abr. 99, pl. 9; 2 Ld. Raym. 1459; Hob. 14;
Mo. 856, 857, pl. 1175; 3 Rep. 83, a; 1 Vent. 237. But if a bond be given with condition to do a thing against an act of the legislature; and also to pay a just debt, the whole bond is void, because the letter of the act makes it void, and is a strict law. Hob. 14. Conditions when considered as to the manner of their creation, are express or implied; when viewed as to the time when they are to take effect, they are precedent or subsequent; when examined as to their performance, they are executed or executory. They are also possible and impossible, positive and negative, legal and illegal, copulative, potestative and repugnant.
It is to be observed that the law makes a distinction between a condition to do an act malum in se, in which case it is absolutely void; and one which provides for the performance of a thing contrary to a maxim of law, which does not render the obligation void. 16 S. & R. 307; Co. Litt. 266. Vide Void.
See, in general, Bac. Abr. Conditions, Obligations, F; Com. Dig. Condition; Vin. Abr. Condition; Poth. Obi. Pt. 2, c. 3, art. 1, 2, and 3; 6Toull. n.512.
CONDITION, persons, is the situation in civil society which creates certain relations between the individual, to whom it is applied, and one or more others, from which mutual rights and obligations arise. Thus the situation arising from marriage gives rise to the conditions of husband and wife; that of paternity to the conditions of father and child. Domat, tom. 2, liv. 1, tit. 9. s. 1, n. 8. In contracts every one is presumed to know the condition of the person with whom he deals. A man making a contract with an infant cannot recover against him for a breach of the contract, on the ground that he was not aware of his condition.