« SebelumnyaLanjutkan »
CONDITION, (COPULATIVE,) A copulative condition, is one of several distinct matters, the whole of which are made precedent to the vesting of an estate or right. In this case the entire condition must be performed, or the estate or right can never arise or take place. 2 Freem. 186. Such a condition differs from a disjunctive condition, which gives to the party the right to perform the one or the other; for, in this case, if one becomes impossible by the act of God, the whole will, in general, be excused. This rule, however, is not without exception. 1 B. & P. 242; Cro. Eliz. 780; 5 Co. 21; 1 Lord Raym. 279. Vide Conjunctive; Disjunctive.
CONDITION, (EXPRESS,) is one created by express words, as, for instance, a condition in a lease that if the tenant shall not pay the rent at the day, the lessor may re-enter. Litt. 328. Vide Re-entry.
CONDITION, (ILLEGAL.) Illegal conditions are those which are forbidden by the law. They have for their object, 1st, to do something malum in se, or malum prohibitum; 2dly, to omit the performance of some duty required by law; 3dly, to encourage such act or omission. 1 P. 'Wms. 189. When the law prohibits, in express terms, the transaction in respect to which the condition is entered, and declares it void, such condition is then void. 3 Binn. R. 533; but when it is prohibited, without being declared void, although unlawful, it is not void. 12 S. & R. 237.
CONDITION, (IMPLIED.) An implied condition is one created by law, and not by express words; for example, at common law, the tenant for life holds upon the implied condition not to commit waste. Co. Litt. 233, b.
CONDITION, (IMPOSSIBLE,) is one which cannot be accomplished according to the laws of nature; as,
to go from the United States to Europe in one day; such a condition is void. 1 Swift's Dig. 93; 6 Toull. n. 481. When a condition becomes impossible by the act of God, it either vests the estate, or does not, as it is precedent or subsequent: when it is the former, no estate vests; when the latter, it becomes absolute. Co. Litt. 206, a, 218, a; 3 Pet. R. 374; 1 Hill. Ab. 249. When the performance of the condition becomes impossible by the act of the party who imposed it, the estate is rendered absolute. 3 Bro. Pari. Cas. 359. Vide 1 Paine's R. 652; Bac. Ab. Conditions, M; Roll. Ab. 420; Co. Litt. 206; 1 Rop. Leg. 505; Swinb. pt. 4, s. 6; Inst. 2, 4, 10; Dig. 28, 7, 1 ; Id. 44, 7, 31 ; Code 6, 25, 1; 6 Toull. n. 486, 686; and the article Impossilnlity.
CONDITION, (LEGAL.) A legal condition is one made in consonance with the law; this must be understood of the law as existing at the time of making the condition, for no change of the law, can change the force of the condition. For example, a conveyance was made to the grantee, on condition that he should not aliene until he reached the age of twenty-five years. Before he acquired this age he aliened, and made a second conveyance after he obtained it; the first deed was declared void, and the last valid. Wihen the condition was imposed, twenty-five was the age of majority in the state; it was afterwards changed to twentyone; under these circumstances the condition was held to be binding. 3 Miss. R. 40.
CONDITION, (NEGATIVE,) contracts. A negative condition is that which consists in the case where something that may or may not happen, shall, as, if I do not marry. Poth. Obi. Pt. 2, c. 3, art. 1, § 1.
CONDITION, (POSITIVE,) in contracts. A positive condition consists in the case where a thing that may or may not happen, shall happen, as, if I marry. Poth. Obi. P. 2, c. 3, art. 1, § 1.
CONDITION, (POTESTATIVE,) contracts. A potestative condition is that which is in the power of the person in whose favour it is contracted; as if I engage to give my neighbour a sum of money, in case he cuts down a tree which obstructs my prospect. Poth. Obi. Pt. 2,c. 3, art. 1, ^ 1.
CONDITION, (PRECEDENT.) A condition precedent is one which must be performed before the estate will vest, or the obligation is to be performed. 2 Dall. R. 317. Whether a condition shall be considered as precedent or subsequent, depends not on the form or arrangement of the words, but on the manifest intention of the parties, on the fair construction of the contract. 2 Fairf. R. 318; 5 Wend. R. 496; 3 Pet. R. 374; 2 John. R. 143; 2 Caines, R. 352; 12 Mod. 464; 6 Cowen, R. 627; 9 Wheat. R. 350; 2 Virg. Cas. 138; 14 Mass. R. 453; 1 J. J. Marsh. R. 591; 6 J. J. Marsh. R. 161; 2 Bibb, R. 547; 6 Litt. R. 151; 4 Rand. R. 352.
CONDITION, (RESOLUTORY,) is a condition which has for its object, when accomplished, to revoke the principal obligation. This condition does not suspend either the existence or the execution of the obligation, it merely obliges the creditor to return what he has received.
CONDITION,(SUBSEQUENT,) is one which enlarges or defeats an estate or right, already created. A conveyance in fee, reserving a life estate in a part of the land, and made upon condition that the grantee shall pay certain sums of money at divers times to several persons, passes the fee upon condition subsequent. 6 Greenl. R. 106. Sometimes it becomes of great importance to ascer
tain whether the condition is precedent or subsequent. When a precedent condition becomes impossible by the act of God, no estate or right vests; but if the condition is subsequent, the estate or right becomes absolute. Co. Litt. 206, 208; 1 Salk. 170.
CONDITION, (SUSPENSIVE,) is a condition which suspends the fulfilment of the obligation until it has been performed; as, if a man bind himself to pay one hundred dollars, upon condition that the ship Thomas Jefferson shall arrive from Europe. The obligation in this case, is suspended until the arrival of the ship, when the condition having been performed, the obligation becomes absolute, and it is no longer conditional. A suspensive condition is in fact a condition precedent.
CONDITIONAL OBLIGATION, is one which is superseded by a condition under which it was created and which is not yet accomplished. Poth. Obi. n. 176, 198.
CONDITIONS OF SALE, con tracts. The terms upon which the vendor of property by auction proposes to sell it; the instrument containing these terms, when reduced to writing or printing, is also called the conditions of sale. It is always prudent and advisable that the conditions of sale should be printed and exposed in the auction room; when so done, they are binding on both parties, and nothing that is said at the time of sale, to add to or vary such printed conditions, will be of any avail. 1 H. Bl. 289; 12 East, 6; 6 Ves. 330; 15 Ves. 521 ; 2 Munf. Rep. 119; 1 Desauss. Ch. Rep. 573; 2 Desauss. Ch. R. 320; 11 John. Rep. 555; 3 Camp. 285. Vide forms of conditions of sale in Babington on Auctions, 233 to 243; Sugd. Vend. Appx. No. 4. Vide Auction; Auctioneer; Puffer.
CONDONATION, a term used in the canon law. It is a forgiveness by the husband of his wife, or by a wife of her husband, of adultery committed, with an implied condition that the injury shall not be repeated, and that the other party shall be treated with conjugal kindness. 1 Hagg. R. 773; 3 Eccl. Rep. 310. See 5 Mass. 320; 5 Mass. 69; 1 Johns. Ch. R. 488. It may be express or implied, as if a husband knowing of his wife's infidelity, cohabit with her. 1 Hagg. Rep. 789; 3 Eccl. R. 338. Condonation is not, for many reasons, held so strictly against a wife as against a husband. 3 Eccl. R. 330; lb. 341, n.; 2 Edw. R. 207. As all condonations by operation of law, are expressly or impliedly conditional, it follows that the effect is taken off by the repetition of misconduct. 3 Eccl. R. 329; 3 Phillim. Rep. 6; 1 Eccl. R. 35; and cruelty revives condoned adultery. Worsley v. Worsley, cited in Durant v. Durant, 1 Hagg. Rep. 7,33; 3 Eccl. Rep. 311. In New York, an act of cruelty alone, on the part of the husband, does not revive condoned adultery, to entitle the wife to a divorce. 4 Paige's R. 400. See 3 Edw. R. 207. Where the parties have separate beds, there must, in order to found condonation, be something of matrimonial intercourse presumed; it does not rest merely on the wife's not withdrawing herself. 3 Eccl. R. 341, n.; 2 Paige, R. 108. Condonation is a bar to a sentence of divorce. 1 Eccl. Rep. 284; 2 Paige, R. 108. In Pennsylvania, by the act of the 13th of March, 1815, § 7, 6 Reed's Laws of Penna. 288, it is enacted that "in any suit or action for divorce for cause of adultery, if the defendant shall allege and prove that the plaintiff has admitted the defendant into conjugal society or embraces, after he or she knew of the criminal fact, or that the plaintiff (if the husband,) allowed of his wife's prostitutions, or received hire for
them, or exposed his wife to lewd company, whereby she became ensnared to the crime aforesaid, it shall be a good defence and perpetual bar against the same." The same rule may be found, perhaps, in the codes of most civilized countries. Vilanova y Manes, Materia Criminal Forensc, Obs. 11, c. 20, n. 4. Vide, generally, 2 Edw. 207 ; Dev. Eq. R. 352; 4 Paige, 432; 1 Edw. R. 14; Shelf, on M. & D. 445.
CONDUCT, law of nations, is used in the phrase safe conduct, to signify the security given, by authority of the government, under the great seal, to a stranger, for his quietly coming into and passing out of the territories over which it has jurisdiction. A safe conduct differs from a passport, the former is given to enemies, the latter to friends or citizens.
CONFEDERACY, intern. law, is an agreement between two or more states or nations, by which they unite for their mutual protection and good. This term is applied to such agreement between two independent nations, but it is used to signify the union of different states of the same nation, as the confederacy of the states. The original thirteen states in 1781, adopted for their federal government the "Articles of confederation and perpetual union between the States," which continued in force until the present constitution of the United States went into full operation on the 30th day of April, 1789, when President Washington was sworn into office. Vide 1 Story on the Const. B. 2, c. 3 and 4.
CONFEDERACY, crim. law, is an agreement between two or more persons to do an unlawful act, or an act, which though not unlawful in itself, becomes so by the confederacy. The technical term usually employed to signify this offence, is conspiracy, (q. v.)
CONFEDERATION, government, is the name given to that form of governmont which the American colonies, on shaking off the British yoke, devised for their mutual safety and government. The articles of confederation, (q. v.) were finally adopted on the 15th of November, 1777, and with the exception of Maryland, which, however, afterwards also agreed to them, were speedily adopted by the United States, and by which they were formed into a federal body, and went into force on the first day of March, 1781, 1 Story, Const. § 225; and so remained until the adoption of the present constitution, which acquired the force of the supreme law of the land on the first Wednesday of March, 1789; 5 Wheat. R. 420. Vide Articles of Confederation.
CONFERENCE, practice, legislation. In practice, it is the meeting of the parties or their attorneys in a cause, for the purpose of endeavouring to settle the same. In legislation, when the senate and house of representatives cannot agree on a bill or resolution which it is desirable should be passed, committees are appointed by the two bodies respectively, who are called committees of conference, and whose duty it is, if possible, to reconcile the differences between them. In the French law, this term is used to signify the'similarity and comparison between two laws, or two systems of law; as the Roman and the common law. Encyclopedic, h. t.
CONFESSION, crim. law, emdence, is the voluntary declaration made by a person who has committed a crime or misdemeanor, to another, of the agency or participation which he had in the same. When made without bias or improper influence, confessions are admissible in evidence, as the highest and most satisfactory proof, because it is fairly presumed that no man would make such a confession against himself, if
the facts confessed were not true; but they are excluded, if liable to the imputation of having been unfairly obtained. Confessions should be received with great caution, as they are liable to many objections. There is danger of error from the misapprehension of witnesses, the misuse of words, the failure of a party to express his own meaning, the prisoner being oppressed by his unfortunate situation, and influenced by hope, fear, and sometimes a worse motive to make an untrue confession. See the case of the two Booms in Greenl. Ev. § 214, note 1; North American Review, vol. 10, p. 418; and see 1 Chit. Cr. Law, 85. A confession must be made voluntarily, by the party himself, to another person. 1. It must be voluntary. A confession forced from the mind by the flattery of hope, or the torture of fear, comes in so questionable a shape, when it is to be considered as evidence of guilt, that no credit ought to be given to it. 1 Leach, 263; this is the principle, but what amounts to a promise or a threat, is not so easily defined; vide 2 East, P. C. 659; 2 Russ. on Cr. 644; 4 Carr. & Payne, 387; S. C. 19 Eng. Com. L. Rep. 434; 1 Southard, R. 231; 1 Wend. R. 625; 6 Wend. R. 268; 5 Halst. R. 163; Mina's Trial, 10; 5 Rogers's Rec. 177; 2 Overton, R. 86; 1 Hayw. (N. C.) R. 482. But it must be observed that a confession will beconsideredasvoluntarilymade, although it was made after a promise of favour or threat of punishment, by a person not in authority over the prisoner. If, however, a person having such authority over him be present at the time, and he express no dissent, evidence oT such confession cannot be given. 8 Car. & Payne, 733. 2. The confession must he made by the party to be affected by it. It is evidence only against him; in case of a conspiracy, the acts of one conspirator are the acts of all, while active in the progress of the conspiracy, but after it is over, the confession of one as to the part he and others took in the crime, is not evidence against any but himself. Phil. Ev. 76, 77; 2 Russ. on Cr. 653. 3. The confession must be to another person. It may be made to a private individual, or under examination before a magistrate. The whole of the confession must be taken, together with whatever conversation took place at the time of the confession. Roscoe's Ev. N. P. 30; 1 Dall. R. 240; lb. 392; 3 Halst. 275; 2 Penna. R. 27; 1 Rogers's Rec. 66; 3 Wheeler's C. C. 533; 2 Bailey's R. 569; 5 Rand. R. 701. Confession, in another sense, is where a prisoner being arraigned for an offence, confesses or admits the crime with which he is charged, whereupon the plea of guilty is entered. Com. Dig. Indictment, (K); lb. Justices, (W 3); Arch. Cr. PI. 121 ; Harr. Dig. h. t.; 20 Am. Jur. 68.
CONFESSION AND AVOIDANCE, pleadings. Pleas in confession and avoidance are those which admit the averments in the plaintiff's declaration to be true, and allege new facts which obviate and repel their legal effects. These pleas | are to be considered, first, with re-1 spect to their division. Of pleas in confession and avoidance, some are distinguished (in reference to their subject-matter) as pleas in justification or excuse, others as pleas in discharge, Com. Dig. Pleader, 3 M 12. The pleas of the former class, show some justification or excuse of the matter charged in the declaration; those of the latter, some discharge or release of that matter. The effect of the former, therefore, is to show that the plaintiff never had any right of action, because the act charged was lawful; the effect of the latter to show that though he had once a right of action, it is discharg
ed or released by some matter subsequent. Of those in justification or excuse the plea of son assault demesne is an example of those in discharge, a release. This division applies to pleas only; for replications and other subsequent pleadings in confession and avoidance, are not subject to such classification. Secondly, they are to be considered in respect to their form; as to their form the reader is referred to Stephen on Pleading, 72, 79, where forms are given. In common with all pleadings whatever, which do not tender issue, they always conclude with a verification and prayer of judgment. Thirdly, with respect to the quality of these pleadings, it is a rule that every pleading by way of confession and avoidance must give colour, (q. v.) And see generally, 1 Chit. PI. 599; 2 Chit. Pl. 644 ; 'Co. Litt. 282, b; Arch. Civ. PI. 215; Dane's Ab. Index, h. t.
CONFESSOR, evid. A priest of some Christian sects, who receives an account of the sins of his people, and undertakes to give them absolution of their sins. The general rule on the subject of giving evidence of confidential communications is, that the privilege is confined to counsel, solicitors and attorneys, and the interpreter between the counsel and client. Vide Confidential Communications. Contrary to this general rule it has been decided in New York that a priest of the Roman catholic denomination could not be compelled to divulge secrets which he had received in auricular confession. 2 City Hall Rec. 80, n.
CONFIDENTIAL COMMUNICATIONS, evidence. Whatever is communicated professionally by a client to his counsel, solicitor or attorney, is considered as a confidential communication. This the latter is not permitted to divulge, for this is the privilege of the client and not