John Bouvier.

A law dictionary, adapted to the Constitution and laws of the United States of America, and of the several States of the American Union : with references to the civil and other systems of foreign law, to which is added Kelham's Dictionary of the Norman and Old French language online

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Online LibraryJohn BouvierA law dictionary, adapted to the Constitution and laws of the United States of America, and of the several States of the American Union : with references to the civil and other systems of foreign law, to which is added Kelham's Dictionary of the Norman and Old French language → online text (page 47 of 133)
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they tend to distract the attention of the
jury, and to mislead them. Stark. Ev. h. t. ;

2 Bl. Rep. 1169'; 1 Stark. Ev. 40 ; 3 Bouv.
Inst. n. 3087.

3. It is frequently difficult to ascertain



a priori, whether a particular fact offeruil
in evidence, will, or will not clearly appeal
to be material in the progress of the cause,
and in such cases it is usual in practice for
the court to give credit to the assertion of the
counsel who tenders such evidence, that the
facts will turn out to be material ; but this is
always within the sound discretion of the
court. It is the duty of the counsel, how-
ever, to offer evidence, if possible, in such
order that each part of it will appear to
be pertinent and proper at the time it is
offered ; and it is expedient to do so, as this
method tends to the success of a good
cause.

4. When a witness is cross-examined
as to collateral facts, the party cross-ex-
amining will be bound by the answer, and
he cannot, in general, contradict him by
another witness. Rose. Ev. 139.

Collateral issue, practice, pleading.
Where a criminal convict pleads any matter,
allowed by law, in bar of execution ; as preg'
nancy, a pardon, andthe like.

Collateral kinsmen, descent, distribu-
tion. Those who descend from one and the
same common ancestor, but not from one
another ; thus brothers and sisters are col-
lateral to each other; the uncle and the
nephew are collateral kinsmen, and cousins
are the same. The term collateral is used
in opposition to the phrase lineal kinsmen.
(q. V.)

Collateral security, contracts. A
separate obligation attached to another con-
tract, to guaranty its performance. By this
term is also meant the transfer of property
or of other contracts to insure the perform-
ance of a principal engagement. The pro-
perty or securities thus conveyed are also
called collateral securities. 1 Pow. Mortg.
393 ; 2 Id. 666, n. 871 ; 3 Id. 944, 1001.

Collateral warranty, contracts, de-
scent. Where the heir's title to the land
neither was, nor could have been, derived
from the warranting ancestor ; and yet
barred the heir from ever claiming the
land, and also imposed upon him the same
obligation of giving the warrantee other
lands, in case of eviction, as if the warranty
were lineal, provided the heir had assets.
4 Cruise, Real Prop. 436.

2. The doctrine of collateral warranty,
is, according to Justice Story, one of the
most unjust, oppressive and indefensible, in
the whole range of the common law. 1
Sumn. R. 262.

3. By the statute of 4 & 5 Anne, c. 16,



COL



COL



241



^ 21, all collateral warranties of any land
to be made after a certain day, by any an-
cestor who has no estate of inheritance in
possession in the same, were made void
against the heir. This statute has been
reenacted in New York ; 4 Kent, Com.
460, 3d ed. ; and in New Jersey. 3 Halst.
R. 106. It has been adopted and is in
force in Rhode Island ; 1 Sumn. R. 235 ;
and in Delaware. Harring. R. 50. In Ken-
tucky and Virginia, it seems that collateral
warranty binds the heir to the extent of
assets descended. 1 Dana, R. 59. In Penn-
sylvania, collateral warranty of the ances-
tor, with sufficient real assets descending to
the heirs, bars them from recovering the
lands warranted. 4 Dall. R. 168 ; 2 Yeates,
R. 509 ; 9 S. & R. 275. See 1 Sumn. 262 ;
3 Halst. 106 ; Harring. 50 ; 3 Rand. 549;
9 S. & R. 275 ; 4 Dall. 168 ; 2 Yeates,
509 ; 1 Dana, 50.

COLLATIO BONORUM, descent, dis-
trihutinn. Where a portion or money ad-
vanced to a son or daughter, is brought
into hotchpot, in order to have an equal
distributive share of the ancestor's personal
estate. The same rule obtains in the civil
law. Civil Code of Louis. 1305 ; Diet, de Jnr.
mot Collation ; Merlin Rep. mot Collation.

COLI/ATION, descents. A term used in
the laws of Louisiana. Collation of goods
is the supposed or real return to the mass
of the succession, which an h«ir makes of
the property he received in advance of
his share or otherwise, in order that such
property may be divided, together with the
other effects of the succession. Civil Code
of Lo. art. 1305.

2. As the object of collation is to equal-
ize the heirs, it follows that those things are
excluded from collation, which the heir ac-
quired by an onerous title from the ancestor ;
that is, where he gave a valuable considera-
tion for them. And upon the same princi-
ple, if a co-heir claims no share of the
estate, he is not bound to collate. Qui non
vult hereditatem, non cogitur ad collationem.
See Id. art. 1305 to 1367 ; and Hotchpot.

Collation, eccl. law. The act by which
the bishop, who has the bestowing of a bene-
fice, gives it to an incumbent. T. L.

Collation, practice. The comparison of
a copy with its original, in order to ascertain
its correctness and conformity ; the report
of the officer who made the comparison, is
also called a collation.

Collation of seals. Where, on the
same label, one seal was set on the back or

Vol. L— Q



reverse of the other, this was said to be n
collation of seals. Jacob. L. D. h, t.

COLLECTOR, officer. One appointed
to receive taxes or other impositions ; as
collector of taxes ; collector of militia fines,
&c. A collector is also a person appointed
by a private person to collect the credits
due him. Mete. & Perk. Dig. h. t.

CoLLECTOKS OF THE CUSTOMS. Officers
of the United States, appointed for the term
of four years, but removable at the pleasure
of the president. Act of May 15, 1820,
sect. 1, 3 Story's U. S. Laws, 1790.

2. The duties of a collector of customs
are described in general terms, as follows ;
" He shall receive all reports, manifests and
documents, to be made or exhibited on the
entry of any ship or vessel, according to the
regulations of this act ; shall record in books
to be kept for the purpose, all manifests ;
shall receive the entries of all ships or
vessels, and of the goods, wares and mer-
chandise imported in them ; shall, together
with the naval officer, where there is one,
or alone, wiere there is none, estimate the
amount of duties payable thereupon, en-
dorsing the said amounts upon the respective
entries ; shall receive all moneys paid for
duties, and shall take bonds for securing
the payment thereof;' shall grant all per-
mits for the unlading and delivery of goods i
shall, with the approbation of the principal
officer of the treasury department, employ
proper persons as weighers, gangers, mea-
surers and inspectors, at the several ports
within his district ; and also, with the like
approbation, provide, at the public expense,
storehouses for the safe keeping of goods,
and such scales, weights and measures, as
may be necessary." Act of March 2, 1799,
s. 21, 1 Story, U. S. Laws, 590. Vide,
for other duties of collectors, 1 Story, U.
8. Laws, 592, 612, 620, 632, 659, and vol.
3, 1650, 1697, 1759, 1761, 1791, 1811.
1848,1854; 10 Wheat. 246.

COLLEGE. A civil corporation, society
or company, authorized by law, having in
general a literary object. In some countries
by college is understood the union of cer-
tain voters in one body ; such bodies are
called electoral colleges ; as, the college of
electors or their deputies to the diet of
Ratisbon ; the college of cardinals. The
term is used in the United States ; as, the
college of electors of president and vice-
president of the United States. Act of
Congress of January 23, 1845.

COLLISION, maritime law. It takes



242



COL



COL



place when two ships or other vessels run
foul of each other, or when one runs foul
of the other. In such cases there is almost
always a damage incurred.

2. There are four possibilities under
which an accident of this sort may occur.
1. It may happen without blame being im-
putable to either party, as when the loss is
occasioned by a storm, or any other vis ma-
jor; in that case the loss must be borne by
the party on whom it happens to light, the
other not being responsible to him in any
degree.

3. — 2. Both parties may be to blame, as
when there has been a want of due diligence
or of skill on both sides ; in such cases, the
loss must be apportioned between them, as
having been occasioned by the fault of both
of them. 6 Whart. K. 311.

4. — 3. The suflfering party may have been
the cause of the injury, then he must bear
the loss.

5. — 4. It may have been the fault of the
ship which ran down the other ; in this case
the injured party would be entitled to an en-
tire compensation from the other. 2 Dod-
son's Kep. 83, 85 ; 3 Hagg. Adm. K. 320 ; 1
How. S. C. R. 89. The same rule is ap-
plied to steamers. Id. 414.

6. — 5. Another ease has been put, name-
ly, when there has been some fault or ne-
glect, but on which side the blame lies is
uncertain. In this case, it does not appear
to be settled whether the loss shall be ap-
portioned or borne by the suffering party ;
opinions on this snbjeet are divided.

7. A collision between two ships on the
high seas, whether it be the result of acci-
dent or negligence, is, in all cases, to be
deemed a peril of the seas within the mean-
ing of a policy of insurance. 2 Story, R.
176 ; 3 Sumn. R. 389.

Vide, generally. Story, Bailm. § 607 to
612 ; Marsh. Ins. B. 1, c. 12, s. 2 ; Wesk.
Ins. art. Running Foul ; Jacobsen's Sea
Laws, B. 4, c. 1 ; 4 Taunt. 126 ; 2 Chit. Pr.
513, 535 ; Code de Com. art. 407 ; Boulay-
Paty, Cours de Dr. Commercial, tit. 12,
s. 6 ; Pard. n. 652 to 654 ; Pothier, Avaries,
n. 155 ; 1 Emerig. Assur. ch. 12, § 14.

COLLISTRIGIUM. The pillory.

COLLOCATION, French law. The aet
by which the creditors of an estate are ar-
ranged in the order in which they are to be
paid according to law. The order in which
the creditors are placed, is also called col-
location. Merl. Rep. h. t. Vide Mar-
thalling Assets.



COLLOQUIUM, pleading. A discourse ;
a conversation or conference.

2. In actions of slander, it is generally
true that an action does not lie for words,
on account of their being merely disgrace-
ful to a person in his office, profession or
trade ; unless it be averred, that at the time
of publishing the words, there was a collo-
quium concerning the office, profession or
trade of the plaintiff.

3. In its technical sense, the term collo-
quium signifies an averment in a declaration
that there was a conversation or discourse
on the part of the defendant, which connects
the slander with the office, profession or
trade of the plaintiff; and this colloquium
must extend to the whole of the prefatory
matter to render the words actionable. 3
Bulst. 83. Vide Bac.-Ab. Slander, S, n. 3 ;
Dane's Ab. Index, h. t.; Com. Dig. Action
upon the case for Defamation, G 7, 8, &c.;
Stark, on Sland. 290, et seq.

COLLUSION, fraud. An agreement
between two or more persons, to defraud a
person of his rights by the forms of law, or
to obtain an object forbidden by law ; as,
for example, where the husband and wife
collude to obtain a divorce for a cause not
authorized by law. It is nearly synony-
mous with covin, (q. v.)

2. Collusion and fraud of every kind
vitiate all acts which are infected with them,
and render them void. Vide Shelf, on Mar.
& Div. 415, 450 ; 3 Hagg. Eccl. R. 130.
133 ; 2 Greenl. Ev. § 51 ; Bousq. Diet, de
Dr. mot Abordage.

COLONEL. An officer in the army,
next below a brigadier general, bears this
title.

COLONY. A union of citizens or sub-
jects who have left their country to people
another, and remain subject to the mother
country. 3 W. C. C. R. 287; The coun-
try occupied by the colonists is also called
a colony. A colony differs from a posses-
sion, or a dependency, (q. v.) For a his-
tory of the American colonies, the reader is
referred to Story on the Constitution, book
I.; 1 Kent, Com. 77 to 80 ; 1 Dane's Ab.
Index, h. t.

COLOR, pleading. It is of two kinds,
namely, express color, and implied color,

2. Express color. This is defined to be
a feigned matter, pleaded by the defendant,
in an action of trespass, from which the
plaintiff seems to have a good cause of ac-
tion, whereas he has in truth only an ap-
pearance or color of cause. The practice



GOL



COL



243



of giving express color in pleas, obtained in
the mixed actions of assize, the writ of entry
in the nature of assize, as well as in the per-
sonal action of trespass. Steph. on Plead.
230 ; Bac. Ab. Trespass, I 4.

3. It is a general rule in pleading that
no man shall be allowed to plead specially
such plea as amounts to the general issue,
or a total denial of the charges contained in
the declaration, and must in such cases plead
' the general issue in terms, by which the
whole question is referred to the jury ; yet,
if the defendant in an action of trespass, be
desirous to refer the validity of his title to
the court, rather than to the jury, he may
in his plea state his title specially, by ex-
pressly giving color of title to the plaintiff,
or supposing him to have an appearance
of title, bad indeed in point of law, but of
which the jury are not competent judges.
3 Bl. Com. 309. Suppose, for example,
that the plaintiff was in wrongful possession
of the close, without any further appearance
of title than the possession itself, at the time
of the trespass alleged, and that the defend-
ants entered upon him in assertion of their
title ; but being unable to set forth this
title in the pleading, in consequence of the
objection that would arise for want of color,
are driven to plead the general issue of not
guilty. By this plea an issue is produced
whether the defendants are guilty or not of
the trespass ; but upon the trial of the issue,
it will be found that the question turns en-
tirely upon a construction of law. The
defendants say they are not guilty of the
trespasses, because they are not guilty of
breaking the close of the plaintiff, as alleged
in the declaration ; and that they are not
guilty of breaking the close of the plaintiff,-
because they themselves had the property
in that close ; and their title is this, that the
father of one of the defendants being seised
of the close in fee, gave it in tail to his
eldest son, remainder in tail to one of the
defendants ; the eldest son was disseised,
but made continual claim till the death of
the disseisor ; after whose death, the descent
being cast upon the heir, the disseisee
entered upon the heir, and afterwards died,
when the remainder took effect in the said
defendant who demised to the other defend-
ant. Now, this title involves a legal question ;
namely, whether continual claim will not
preserve the right of entry in the disseisee,
notwithstanding a descent cast on the heir of
the disseisor. (See as to this point, Con-
iinual Claim.) The issue however is merely



not guilty, and this is triable by jury ; and
the effect, therefore, would be, that a jury
would have to decide this question of law,
subject to the direction upon it, which they
would receive from the court. But, let it
be supposed that the defendants, in a view
to the more satisfactory decision of the
question, wish to bring it under thu con-
sideration of the court in bank, rather than
have it referred to a jury. If they have
anymeans of setting forth their title spicially
in the plea, the object will be attained ; for
then the plaintiff, if disposed to question the
sufficiency of the title, may demur to the
plea, and thus refer the question to the de-
cision of the judges. But such plea if
pleaded simply, according to the state of the
fact, would be informal for want of color ;
and hence arises a difficulty.

4. The pleaders of former days, con-
trived to overcome this difficulty in the
following singular manner. In such case
as that supposed, the plea wanting implied
color, they gave in lieu of it an express one,
by inserting a nctitious allegation of some
colorable title in the plaintiff, which they, at
the same time avoided by the preferable
title of the defendant. See Steph. PI. 225 ;
Brown's Entr. 343, for a form of the plea.
Plowd. Kep. 22, b.

5. Formerly various suggestions of ap-
parent right, might be adopted according to
the fancy of the pleader ; and though the
same latitude is, perhaps, still available, yet,
in practice, it is unusual to resort to any
except certain known fictions, which long
usage has applied to the particular case ;
for example, in trespass to land, the color
universally given is that of a defective
charter of the demise.

See, in general, 2 Saund. 410 ; 10 Co.
88 ; Cro. Eliz. 76; 1 East, 215 ; Doct. PI
17 ; Doct. & Stud. lib. 2, c. 53 ; Bac. Abr.
Pleas, I 8 ; Trespass, 1 4 ; 1 Chit. PI. 500 ;
Steph. on PI. 220.

6. Implied color. That in pleading
which admits, by implication, an apparent
right in the opposite party, and avoids it by
pleading some new matter by which that
apparent right is defeated. Steph. PI. 225.

7. It is a rule that every pleading by
way of confession and avoidance, must give
color ; that is, it must admit an apparent
right in the opposite party, and rely, there-
fore, on some new matter by which that
apparent right is defeated. Foi;' example,
where the defendant pleiads a release to an
action for breach of covenant, the tendency



244



COM



COM



of the plea is to admit an apparent right in
the plaintiff, namely, that the defendant did,
as alleged in the declaration, execute the
deed, and break the covenant therein con-
tained, and would therefore, prima facie, be
liable on that ground ; but shows new matter
not before disclosed, by which that apparent
right is done away, namely, that the plain-
tiff executed to him a release. Again, if
the plaintiff reply that such release was ob-
tained by duress, in his replication, he
impliedly admits that the defendant has,
prima facie, a good defence, namely, that
such release was executed as alleged in the
plea ; and that the defendant therefore
would be discharged ; but relies on new
matter by which the plea is avoided, name-
ly, that the release was obtained by duress.
The plea, in this case, therefore, gives color
to the declaration, and the replication, to
the plea. But let it be supposed that the
plaintiff has replied, that the release was
executed by him, but to another person, and
not to the defendant ; this would be an in-
formal replication wanting color; because,
if the release were not to the defendant,
there would not exist even an apparent de-
fence, requiring the allegation of new matter
to avoid it, and the plea might be sufficiently
answered by a traverse, denying that the
deed stated in the plea, is the deed of the
plaintiff. See Steph. PI. 220 ; 1 Chit. PL
498 ; Lawes, Civ. PI. 126 ; Arch. PI. 211 ;
Doct. PI. 17 ; 4 Vin. Abr. 552 ; Bac. Abr.
Pleas, &c. I 8 ; Com. Dig. Pleader, 3 M
40, 3 M 41. See an example of giving color
in pleading in the Koman law, Cist. lib. 4,
tit. 14, De replioationibus.

Color of office, criminal law. A wrong
committed by an officer under the pretended
authority of his office ; in some cases the act
amounts to a misdemeanor, and the party
may then be indicted. In other cases, the
remedy to redress the wrong is by an
action.

COLT. An animal of the horse species,
whether male or female, not more than four
years old, Russ. & Ey. 416.

COMBAT, Eng. law. The form of a
forcible encounter between two or more
persons or bodies of men ; an engagement or
battle. A duel.

C03IBINATI0N. A union of different
things. A patent may be taken out for a
new combination of existing machinery, or
machines. See 2 Mason, 112 ; and Com-
position of matter.

2. By combination is understood, in a



bad sense, a union of men for the purpose
of violating the law.

COMBUSTIO DOMORUM. Burning
of houses ; arson. Vide 4 Bl. Com. 372.

COMES, pleading. In a plea, the de-
fendant says, " And the said C D, by E F,
his attorney, comes, and defends, &c. The
word comes, venit, expresses the appearance
of the defendant in court. It is taken from
the style of the entry of the proceedings on the
record, and formed no part of the viva voce
pleading. It is, accordingly, not considered
as, in strictness, constituting a part of the
plea. 1 Chit. PI. 411 ; Steph. PI. 432.

Comes, offices. A Count. An officer
during the middle ages, who possessed civil
and military authority. Sav. Dr. Rom. Moy.
age, n. 80.

2. Vice-comes, the Latin name for sheriff,
was originally the lieutenant of the comes.

COMITATUS. A county. Most of the
states are divided into counties ; some, as
Louisiana, are divided into parishes.

COMITES. Persons who are attached
to a public minister, are so called. As to
their privileges, see 1 Dall. 117 ; Baldw.
240 ; and .Embassador.

COMITY. Courtesy; a disposition to
accomodate.

2. Courts of justice in one state will,
out of comity, enforce the laws of another
state, when by such enforcement they will
not violate their laws or inflict an injury
on some one of their own citizens ; as, for
example, the discharge of a debtor undei
the insolvent laws of one state, will he
respected in another state, where there
is a reciprocity in this respect.

3. It is a general rule that the munici-
pal laws of a country do not extend beyond
its limits, and cannot be enforced in another,
except on the principle of comity. But
when those laws clash and interfere with the
rights of citizens, or the laws of the coun-
tries where the parties to the contract seek
to enforce it, as one or the other must give
way, those prevailing where the relief is
sought must have the preference. 2 Mart.
Lo. Rep. N. S. 93 ; S. C. 2 Harr. Cond. Lo.
Rep. 606, 609 ; 2 B. & C. 448, 471 ; 6
Binn. 353 ; 5 Cranch, 299 ; 2 Mass. 84 ;
6 Mass. 358 ; 7 Mart. Lo. R. 318. See
Conflict of Laws; Lex loci contractus.

COMMAND. This word has several
meanings. 1. It signifies an order; an
apprentice is bound to obey the lawful com-
mand of his master ; a constable may com-
mand rioters to keep the peace. 2. Ho



COM



COM



245



who cdmmands another to do an unlawful
act, is accessary to it. 3 Inst. 51, 57 ; 2
Inst. 182; 1 Hayw. 4. 3. Command is
also equivalent to deputation or voluntary
substitution ; as, when a master employs
one to do a thing, he is said to have com-
manded him to do it ; and he is responsible
accordingly. Story, Ag. § 454, note.

COMMENCEMENT OP A SUIT OE
ACTION. The suit is considered as com-
menced from the issuing of the writ ; 3 Bl.
Com. 273, 285 ; 7 T. R. 4 ; 1 Wila. 147 ;
18 John. 14 ; Dunl. Pr. 120 ; 2 Phil. Ev.
95 ; 7 Verm. R. 426 ; 6 Monr. R. 560 ;
Peck's R. 276 ; 1 Pick. R. 202; Id. 227 ;
2 N. H. Rep. 36 ; 4 Cowen, R. 158 ; 8
Cowen, 203 ; 3 John. Cas. 133 ; 2 John.
R. 342 ; 3 John. R. 42 ; 15 John. R. 42 ;
17 John. R. 65 ; 11 John. R. 473 ; and if
the teste or date of the writ be fictitious,
the true time of its issuing may be averred
and proved, whenever the purposes of justice
require it ; as in cases of a plea of tender
or of the statute of limitations. Bac. Ab.
Tender D ; 1 Stra. 638 ; Peake's Ev. 259 ;
2 Saund. 1, n. 1. In Connecticut, the
service of the writ is the commencement of
the action. 1 Root, R. 487 ; 4 Conn. 149 ;
6 Conn. R. 30 ; 9 Conn. R. 530 ; 7 Conn.
R. 558 ; 21 Pick. R. 241 ; 2 C. & M.
408, 492; 1 Sim. R. 393. Vide Lis
Pendens.

COMMENDAM, eccles. law. When a
benefice or church living is void or vacant,
it is commended to the care of some suf-
ficient clerk to be supplied, until it can be
supplied with a pastor. He to whom the
church is thus commended is said to hold
in commendam, and he is entitled to the
profits of the living. Hob. 144 ; Latch,
236.

2. In Louisiana, there is a species of
limited partnership called a partnership in
commendam. It is formed by a contract,
by which one person or partnership agrees
to furnish another person or partnership a
certain amount, either in property or money,
to be employed by the person or partner-
ship to whom it is furnished, in his or their
own name or firm, on condition of receiving
a share in the profits, in the proportion de-
termined by tht contract, and of being
liable to losses and expenses, to the amount
furnished, and no more. Civ. Code of Lo.
2810. A similar partnership exists in
Prance. Code de Comm. 26, 33 ; Sirey,
tom. 12, part 2, p. 25. He who makes this ,
contract is called, in respect to those to



whom he makes the advance of capital, a
partner in commendam. Civ. Code of Lo.
art. 2811.

COMMENDATARY. A person who
holds a church living or presentment in
commendam.

COMMENDATION. The act of recom-
mending, praising. A merchant who merely
commends goods he offers for sale, does not



Online LibraryJohn BouvierA law dictionary, adapted to the Constitution and laws of the United States of America, and of the several States of the American Union : with references to the civil and other systems of foreign law, to which is added Kelham's Dictionary of the Norman and Old French language → online text (page 47 of 133)