Cancellation of Contract. As a corollary it follows that he has no authority to cancel the contract after his principal's acceptance.1 2 IV. LIABILITY OF CARRIER FOR Loss of SAMPLES. The well-settled liability of a carrier for the loss or destruction of a passenger's ordinary baggage does not extend to the samples of a drummer, unless such knowledge of the character of the goods taken as baggage is brought home to the carrier as to imply a special contract.3 Nor Does Additional Payment on account of overweight affect the rule.1 COMMISSION. (See also CHARGE, vol. 5, p. 886. And see the titles PUBLIC OFFICERS; MILITARY LAW.) — 1. A “commission" is a warrant of office, a written authority or license granted by a person or persons duly constituted by law for the purpose to a public officer, empowering and authorizing him to execute the duties of the office to which he may be appointed.5 2. The term "commission" legally imports a sum allowed as compensation to a servant, factor, or agent, who manages the affairs of others, in recompense for his services." where it was held that private instructions to a drummer that he should only accept orders subject to the approval of his principal will not affect third parties dealing with him, to whom these instructions have not been made known, nor relieve his principal from liability thereon. A Question for the Jury. See also Finch v. Mansfield, 97 Mass. 89, where it was held that where the drummer of a Connecticut firm took an order for goods in Massachusetts, the question as to whether the contract of sale became complete in Massachusetts at the time of the order, or in Connecticut at the time of its acceptance, was properly to be left to the jury, being a question of fact as to the extent of the agent's authority. The Title to the Goods Ordered vests in the purchaser, and the goods are at his risk, immediately upon shipment by the seller. Diversy v. Kellogg, 44 Ill. 114, 92 Am. Dec. 154. 1. Cancellation of Contract. - In Diversy v. Kellogg, 44 Ill. 114, 92 Am. Dec. 154, it was held that the nature of a traveling salesman's employment does not warrant the conclusion, in the absence of proof, that he is authorized to cancel his contract and receive back goods shipped to a customer which prove unsatisfactory. See also Saladin v. Mitchell, 45 Ill. 79; Adrian v. Lane, 13 S. Car. 183. In Commission. · In Greer's Case, 3 Ct. of Cl. 182, an officer appointed subject to the action of an examining board was held not to be in commission. - Distinguished from Grant of Office. - In State v. Dews, R. M. Charlt. (Ga.) 401, the court, per Nicoll, J., says: "But from the organization of the first republican government of this state, officers have been appointed by commission (M. & C. 9), a term which, whether regarded according to its ordinary meaning, or its legal sense, imports a delegation of authority, and is defined to be a delegation by warrant of an Act of Parliament, or of common law, whereby a jurisdiction, power, or authority is conferred to others.' 4 Inst. 163; Dew v. Judges, 3 Hen. & M. (Va.) 31, 43: Jacobs, Commission. And our earliest books draw a distinction between a grant of an office and a commission, and inform us that the former, as its name implies, is not revocable, but that the latter, which is only the delegation of an authority, is." 6. Ralston v. Kohl, 30 Ohio St. 98; Woolsey v. Jones, 84 Ala. 88; Rogers v. Duff, 97 Cal. 69. See also WAGES; SALARIES. And see generally such titles as AGENCY, vol. I, p. 930; BROKERS; REAL ESTATE BROKERS; FACTORS OR COMMISSION MERCHANTS, etc. Commissions are the allowance for services, trouble, labor, or responsibility in discharging the duties of a trust. Eckert v. Lewis, 4 Phila. (Pa.) 225. The term commission, in its business as well as its legal acceptation, means a percentage on price or value. Brennan v. Perry, 7 Phila. (Pa.) 243. Commission Distinguished from Discount. (See also DISCOUNT.) In Swift, etc., Co. v. U. S., 18 Ct. of Cl. 57, the court said: "The two words, commission and discount,' are not synonymous. They are similar, but not identical. Commission, in its technical as well as in its 3. A commission," e. g., to take testimony, is a writ or process, issued by special order of the court, and a seal is essential to its validity.1 COMMISSIONERS. (See the titles BOROUGHS, vol. 4, p. 722; COUNTY COMMISSIONERS; PUBLIC OFFICERS; UNITED STATES COMMISSIONERS. As to commissioners of roads, see the titles HIGHWAYS; SCHOOLS; TOWNS AND TOWNSHIPS. As to public lands, see the title PUBLIC LANDS. As to Indian commissioners, see the title INDIANS. As to commissioners in chancery, see the title REFERees and ReferENCES.) — The term "commissioners" is the legal and appropriate designation of such persons as have a commission, letters patent, or other lawful warrant, to examine any matters or to execute any public office.2 COMMISSION MERCHANTS. See the title FACTORS OR COMMISSION MERCHANTS. COMMITMENT. (For full treatment see 4 ENCYCLOPÆDIA OF PLEADING AND PRACTICE, 566.)—“Commitment correctly describes the process by which a person is confined, under the order of a court, at any time before or after final sentence.” 4 ordinary sense, generally signifies a percentage upon the amount of money involved in the transaction; as distinguished from ' discount,' which is a percentage taken from the face value of the security or property negotiated." Commission Distinguished from Fees. (See also FEES.) In Philadelphia v. Martin, 125 Pa. St. 583, it is said: "Indeed, the meaning of commissions or percentage,' as established by immemorial legal usage, is so wholly different from the meaning of the word ' fees,' when used to designate compensation for legal services performed by an officer, that it is impossible to mistake the one as meaning that which is signified by the other." Commission Business. (See also the title FACTORS OR COMMISSION MERCHANTS.) - A commission business is confined to the making of sales for others, and one partner has no authority to bind his copartner by purchase of goods to be sold in the business. Alabama Fertilizer Co. v. Reynolds, 79 Ala. 502. See also the title PARTNERSHIP. 1. Tracy v. Suydam, 30 Barb. (N. Y.) 115. See also the title DEPOSITIONS, 6 ENCYC. OF PLEADING AND PRACTICE, P. 479. 2. Morris Canal, etc., Co. v. State, 14 N. J. L. 428, citing Jacob's Law Dict. Supervisor. Commissioner is sometimes used as synonymous with supervisor." State v. Ormsby County, 7 Nev. 397. Master and Commissioner. In Mann v. Jennings, 25 Fla. 730, the court refused to set aside a sale because the person appointed to make the sale was entitled commissioner instead of master. 3. Act of Omission. Committed" has been held to include an act of omission. Holland v. Northwich, 40 J. P. 517. Commit Suicide. (See also the titles ACCIDENT INSURANCE, vol. 1, p. 284; LIFE INSURANCE; SUICIDE.) In Cooper v. Massachusetts Mut. L. Ins. Co., 102 Mass. 230, it is said: "" There is no substantial difference of signification between the phrases, shall die by his own hand,' shall commit suicide,' and' shall die by suicide.'' In Clift v. Schwabe, 3 C. B. 437, 54 E. C. L. 437, Pollock, C. B., said: "The meaning of commit in Johnson, with reference to this use of the word, is to perpetrate, to do a fault, to be guilty of a crime." But see the opinion of Patterson, J., in the same case, showing that the term is not always used in a criminal sense. 4. People v. Rutan, 3 Mich. 49. The words, commitment, committed, or committal "to prison," have been held not to mean "receive into prison," but to mean "when the order is made upon which a person is to be kept in prison." Mullins v. Surrey, 51 L. J. Q. B. 145. In the construction of statutes the word commit, in the absence of qualifying words, has a technical signification. Warrants which do not direct the officers to commit the parties to prison, but only " to receive them into their custody and safely keep them for further examination, are not commitments. Gilbert v. U. S., 23 Ct. of Cl. 219. In Lee v. Ionia County, 68 Mich. 331, it is said: "The terms committed and discharged are words of recognized legal meaning, and refer only to the beginning and end of the term of imprisonment." In that case it was held that a statute allowing fees for commitments applied only to technical commitments, and not to a case where the prisoner was taken out of jail and returned thereto in the course of proceedings against him. Necessity of Adjudication. - In Cummington v. Wareham, 9 Cush. (Mass.) 585, it was held that the sending of a lunatic pauper to the state hospital by the overseers of the poor, without an adjudication by any court or magistrate, was nevertheless a commitment of the pauper, within a statute which provided that whenever an insane person should be committed to the state hospital in any town in which he had not a legal settlement, such town might recover from the town where he had a legal settlement. But in Com. v. Barker, 133 Mass. 400, it is said: "The word committed is to be taken as having a technical meaning, and necessarily implies a warrant or order by a court or mag COMMITTEE. (See also the titles INSANITY; HABITUAL DRUNKARDS; SPENDTHRIFTS AND SPENDTHRIFT TRUSTS. And see ENCYCLOPEDIA OF PLEADING AND PRACTICE, titles INFANTS; NEXT FRIEND.) — The term “committee means an individual, or a body, to whom others have committed or delegated a particular duty, or who have taken on themselves to perform it, in the expectation of their act being confirmed by the body they profess to represent or act for.1 It also denotes a person to whom a court has intrusted the charge of the person or estate, or both, of an insane person, habitual drunkard, or spendthrift. COMMODATUM. (See also LOAN; and the title BAILMENTS, vol. 3, p. 741.) - A loan for use, called in civil law commodatum, is a bailment to be used by the bailee temporarily, or for a certain time, without reward. Thus, if a horse be gratuitously loaned for a journey, it is a case of commodatum.2 COMMODITY. The word "commodity" has two significations. In its most comprehensive sense it means convenience, accommodation, profit, benefit, advantage, interest, commodiousness. The word is ordinarily employed in the commercial sense of any movable and tangible thing that is produced. or used as the subject of barter and sale.3 "" istrate directing a ministerial officer to take a person to prison; and that the offense of breaking jail can only be committed by those properly thus described, for it is only as to them that the jail is a lawful place of confinement.' After Sentence. In State v. Pearson, 100 N. Car. 418, it is said: "The word committed has a technical sense in criminal procedure. It implies sent to jail or other proper prison, to be there detained and held to answer for a criminal offense preferred, or to be preferred, against the party in the course of procedure, until he shall be discharged according to law. 4 Bl. Com. 296-309; Chit. Cr. Law, 107, 108; Bouv. Law Dict., words To commit, Commitment,' Bur. Law Dict., word Commitment. A person is committed to jail by a proper tribunal to answer for a criminal offense; upon conviction, he is sentenced by the judgment of the court to be imprisoned in jail as a punishment; and when put in jail he is then in execution of the judgment.' In that case it was held that a provision of a statute in reference to prison bounds for persons committed for misdemeanors other than treason and felony, did not apply to one in execution, as a punishment for a criminal offense. Commit Distinguished from Arrest. In French. Bancroft, 1 Met. (Mass.) 504, the court says: "By arrest' is to be understood, to take the party into custody. It is so used in works of authority. An arrest is the beginning of imprisonment, when a man is first taken and restrained of his liberty by power or color of a lawful warrant.' Jacob's Law Dict., 'Arrest.' To commit was regarded as the separate and distinct act of carrying the party to prison, after having taken him into custody by force of the execution." 1. Reynell v. Lewis, 15 M. & W. 529. In In re Scottish Petroleum Co., 51 L. J. Ch. 845, Kay, J., said: "I observed in the argument that, according to one's ordinary idea of the meaning of the word, a committee consists of more than one; but I was not right in saying that, because that is not, ex vi termini, the necessary meaning of the word. Committee simply means a person or persons to whom anything is committed." 2. Gaddy v. State, 8 Tex. App. 128. 3. Limited Sense. - Queen Ins. Co. v. State, 86 Tex. 265. And in that case it was held that the legislature used the term in the latter sense, in a statute providing against combinations in restraint of trade. It was further held that insurance was not a commodity within such a statute. Same- Personal Property. - Statutes in a number of the Southern states, before the abo lition of slavery, prohibited the purchase of commodities from slaves, and it has been held that the word in this connection included all species of personal property. Barnett v. Powell, Litt. Sel. Cas. (Ky.) 409, 410. In that case it was said: "The only objection which we perceive to have any plausibility in it, and which has been made to this declaration, is, that the article bought of the slave is not one included within the Act of Assembly, under the term commodity. The expressions of the Act are: No person whatever shall buy, sell, or receive, of, to, or from any slave, any coin or commodity whatever, without the leave or consent of the master or owner of such slave, in writing expressive of the article so permitted to be bought or sold.' We have no hesitation in saying that the term commodity is opposed to coin,' and that the two words mean the same thing which is now frequently expressed by the vulgar and popular language of money' and property.' The term commodity is properly used to signify almost any description of article called movable or personal estate, and in this sense it is here intended." In Shuttleworth v. State, 35 Ala. 417, it is said: "The words' article' and commodity are used in this section, mainly, in the same sense. They at least embrace most movable things which can become the subject of commerce between white persons and slaves. A black bottle comes clearly within this definition." Same Wine Roots. In Best v. Bauder, 29 How. Pr. (N. Y. Supreme Ct.) 489, wine roots, or wine plants, were held to be commodities within an internal revenue law. The court said: These plants, if not 'goods,' which I think they are, certainly are included in the COMMODUM. - See note I. COMMON. (See GENERAL; PUBLIC; ORDINARY; USUAL; and the title EASEMENTS. And see references given in note 2.) 1. A profit which a man has in the land of another; as to feed his beasts, catch fish, dig turf, cut wood, or the like. It is chiefly of four sorts: common of pasture, of piscary, of turbary, and of estovers. It may also be either appendant, appurtenant, or in gross.3 Larger Sense - Massachusetts Constitution— Taxation. (See also the title TAXATION.) - The constitution of Massachusetts authorized the legislature to impose taxes upon all the inhabitants and residents within the commonwealth, and also to impose reasonable duties and excises upon any produce, goods, wares, merchandise, and commodities brought into or produced within the commonwealth. Under this provision it was held that bank stock might be taxed. Portland Bank v. Apthorp, 12 Mass. 252. In that case Parker, C. J., said: 'It must have been under this general term, commodity, which signifies convenience, privilege, profit, and gains, as well as goods and wares, which are only its vulgar signification, that the legislature assumed the right, which has been uniformly, and without complaint, exercised for thirty years, of exacting a sum of money from attorneys and barristers at law, vendue masters, tavern-keepers, and retailers. For every man has a natural right to exercise either of these employments free of tribute, as much as a husbandman or mechanic has to use his particular calling. The money required of them is not a proportional tax; nor is it an excise or duty upon produce, goods, wares, or merchandise. It is a commodity, convenience, or privilege, which the legislature has, by contemporaneous construction of the constitution, assumed a right to sell at a reasonable price; and, by parity of reason, it may impose the same conditions upon every other employment or handicraft." In Hamilton Mfg. Co. v. Massachusetts, 6 Wall. (U. S.) 632, it was held that a tax upon the stock of corporations was lawful. The court said: "Property taxation and excise taxation, as authorized in the constitution of the state, are perfectly distinct, and the two systems are easily distinguished from each other, if we adopt the definition of the term commodities as uniformly given by the courts of the state, and as universally understood by the taxpayers and assessors. If regarded as meaning goods and wares only, there would be much difficulty in the case; but if it signifies * convenience, privilege, profit, and gains,' as uniformly held by the state court, then all difficuity vanishes, and the case is clear.' In Gleason v. McKay, 134 Mass. 424, it is said: "Ever since the adoption of the constitution, the legislature in its practice, and this court in its adjudications, have given a very broad and extensive meaning to this term. It So has been repeatedly held that corporate franchises enjoyed by grant from the government are commodities, and subject to an excise. So with corporate franchises granted by a foreign government, which by comity are permitted to be exercised within this commonwealth. where the legislature has thought, upon considerations of public policy, that certain occupations or callings, of a public or quasi-public character, should be carried on under governmental regulation, it has been usual to impose a reasonable fee for a license.' And construing this provision of the constitution, see also Com. v. People's Five Cents Sav. Bank, 5 Allen (Mass.) 428; Portland Bank v. Apthorp, 12 Mass. 252; Com. v. Cary Imp. Co., 98 Mass. 19; Connecticut Mut. L. Ins. Co. v. Com., 133 Mass. 161; Com. v. Lancaster Sav. Bank, 123 Mass. 495. 1. "Commodum ex Injuria Sua Nemo Habere Debet." This maxim means that no man shall take a benefit of his own wrong. See also the titles EQUITY; FRAUD; SPECIFIC PERFORMANCE, etc. "Cujus Est Commodum, Ejus Debet Esse Incommodum."-This maxim means that he who has the benefit of a thing ought also to be subject to the disadvantage of it. See also titles AGENCY, vol. 1, p. 930; ATTORNEY AND CLIENT, vol. 3, p. 278; MASTER AND SERVANT; HUSBAND AND WIFE, etc. 2. A "common" is a piece of ground left open for common or public use, for the convenience and accommodation of the inhabitants of the town.1 regulations and decisions on the subject. I Bouv. Inst. 1644. There are a few instances in this country of true commons, where the right to the profits of certain public or proprietary land was vested in the inhabitants of a certain town or city. The law on the subject of these rights will be found under the title PROFITS À PRENDRE. A common is a right or privilege which several persons have to the produce of the lands or waters of another. Van Rensselaer v. Radcliff, to Wend. (N. Y.) 648. Right of Common is an incorporeal hereditament, "being a profit which one man hath in the land of another, as to feed his beasts, take fish, dig turf, cut wood, or the like." Smith v. Floyd, 18 Barb. (N. Y.) 527. Common of Estovers. (See also ESTOVERS; LANDLORD AND TENANT.)—Common of estovers is the right a tenant has of taking necessary wood and timber from the woods of the lord for fuel, fencing, etc. Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 649. Common Appendant. (See also APPENDANT, vol. 2, p. 430.) — Common appendant is a right belonging to the owners or occupants of arable lands. Smith v. Floyd, 18 Barb. (N. Y.) 527. Common Appurtenant. (See also APPURTENANT, vol. 2, p. 520.) Common appurtenant is annexed to lands in other manors. 7. Floyd, 18 Barb. (N. Y.) 527. Smith Com Common in Gross. (See also GROSS.) mon in gross, or at large, is neither appurtenant nor appendant, but is annexed to the person, and is granted by deed or claimed by prescriptive right. Smith 7. Floyd, 18 Barb. (N. Y.) 527. Common of Shack. Common of shack is a right of persons occupying arable land lying together, and uninclosed, to turn out their cattle to feed promiscuè in the open field. Cheesman v. Hardham, I B. & Ald. 710; Corbet's Case, 7 Coke 5. 1. Cincinnati v. White, 6 Pet. (U. S.) 431; Newport v. Taylor, 16 B. Mon. (Ky.)699; Goode v. St. Louis, 113 Mo. 257; Cummings v. St. Louis, 90 Mo. 259. See also Crawford v. Mobile, etc., R. Co., 67 Ga. 405; Bath v. Boyd, I Ired. L. (N. Car.) 194; Scott v. Des Moines, 64 Iowa 438; State v. McReynolds, 61 Mo. 203. In White v. Smith, 37 Mich. 291, common was said to be land in a town or city, belonging or dedicated to the public. Proper Uses. (See also the titles DEDICATION; PARKS AND PUBLIC SQUARES.) - Where land had been given to a town for a common. and the testator left money for the embellishment of the common, and at the time of the testator's death a part of the land in question was occupied by a schoolhouse, it was held that the testator did not intend to condition his bequest upon the removal of all structures from the common. The court said: "The acceptance of the Whitcomb bequest by the town did not change the meaning of his will, nor limit or impair the town's rights under the Hosley grant. When Whitcomb made his will, and up to the time of his death, a portion of the common, selected by the commissioners in 1890 as a location of the proposed schoolhouse lot, was occupied by the old schoolhouse. He was familiar with the common, and the way in which it was and had been used and occupied, and undoubtedly he was also familiar with the terms of the Hosley grant. The Whitcomb legacy was 'for the reclamation and embellishment of the common, so called.' Did the testator mean by the word common a lawn or park not occupied by buildings, or did he mean the common to be used as it had been legally used? The presumption is that he used the word common and the words reclamation' and embellishment' in senses consistent with the legal public uses which the town can make of the common under the Hosley grant, and that he did not intend or attempt to impair or restrict the legal uses of the land under the grant." Newell . Hancock, (N. H. 1892) 35 Atl. Rep. 254. In Newport v. Taylor, 16 B. Mon. (Ky.) 699, it was held that the dedication of land by a proprietor of lands laid out as a town on a navigable river, to be a common, conferred the right on the public authorities of the town to build wharves and charge wharfage. The court said: "The second plat, and the statute founded on and referring to it, calls [the slip] a common, or an esplanade, to remain a common forever. Was the esplanade to be a common of pasture, a common of piscary, or a common of turbary? Was the esplanade, one half of which, or more, was the sterile shore and bank of the river, dedicated forever to this restricted use of a town situated on the bank of a noble river, and seeking and expecting the advantages of that situation? And was not the word common understood, and to be understood, not in its technical sense, as being a right or profit which one man may have in the land of another, but in its popular sense, as a piece of ground left open for common and public use, for the convenience and accommodation of the inhabitants of the town? We are of opinion that the dedication of the slip of ground in question, as a common, by the plat of 1795, and by the Act establishing the town, was a dedication of it as public ground, for the convenience and accommodation of the town and the public, and for such appropriate uses, exclusive of the ferry right in Taylor, and not inconsistent with it, as are to be implied in the dedication of a narrow slip of open ground between the lots and a navigable river, which include the right of * * |