(2.) It is contrary to the policy of the English Law that there should be an appeal in cases of felony (Ex parte Eduljee Byramjee, 5 Moo. P. C. C. 276); nevertheless the stat. 11 & 12 Vict. c. 78, enables the judge to reserve any point arising on the trial for the consideration of the Court for Crown Cases Reserved, which is established by that Act; but (3.) After judgment the record may be removed by writ of error, in any case where an error, either of law or of fact, appears on the record; this writ of error lies from quarter sessions to the Queen's Bench, and from the Queen's Bench to the Exchequer Chamber. But, semble, in a case of misdemeanour (as distinguished from felony) the previous fiat of the Attorney-General is requisite, and it is in his discretion to grant or refuse his fiat. Reg. v. Newton, 4 El. & Bl. 869. CROSS ACTION. Where A. having brought an action against B., B. brings an action against A. upon the same subjectmatter, or arising out of the same transaction, this second action is called a cross action. And this double action is sometimes necessary to insure justice to both parties; as in the case of a contract in which neither of the contractors is subjected to any condition precedent to his right to enforce performance by the other of his part; but the promises on each side are independent of what is to be done upon the other. In such a case the non-performance of the plaintiff's promises would be no defence to an action for the non-performance of the defendant's, whose sole remedy, therefore, against the plaintiff would be by a cross action (6 T. R. 570; 9 B. & C. 259). However, in many cases, a cross action is rendered unnecessary, and the party may raise by answer or defence what he formerly CROSS ACTION-continued. required to raise by cross action. See also next title. CROSS BILL. A suit in Equity is commenced by the plaintiff filing his bill, wherein are stated all circumstances which gave rise to the complaint; the defendant's mode of defence is then usually by answer, wherein he controverts the facts stated in the bill, or some of them, &c. But when he is unable to make a complete defence to the plaintiff's bill without disclosing some facts which rest in the knowledge of the plaintiff himself, he then files what is called a cross bill, which differs in no respect from the plaintiff's original bill, excepting that the occasion which gave rise to it proceeded from matter already in litigation. A cross bill is in many cases necessary in aid of the defence, which cannot properly be raised by answer merely, as in cases of alleged fraud. However, under the Judicature Act, 1873 (36 & 37 Vict. c. 66), Sch. r. 20, a cross action will hardly in any case be now necessary in aid of a defence. CROSS DEMANDS. These arise where one man against whom a demand is made by another, in his turn makes a demand against that other, and of such cross demand a set-off is in law the most familiar instance, a set-off being a statutory right of balancing mutual debts between the plaintiff and defendant in an action. Chit. Pl. 595. See also preceding titles. 1 CROSS REMAINDER: See title REMAINDER. CROWN COURT. Is the Court in which the Crown or criminal business of the assizes is transacted. See titles CIVIL SIDE; PLEA SIDE. CROWN DEBTS. These are debts due to the Crown, usually from persons who were accountants to the Crown, but also on record, bond, or specialty, generally to the Crown. The liability of lands to make good these debts attached to the lands even in the hands of bonâ fide purchasers for value without notice, and notwithstanding the purchaser had no means of notice. But latterly, by the stats. 2 & 3 Vict. c. 11, 8. 8, and 22 & 23 Vict. c. 35, s. 22, it was enacted, that lands should not be charged in the hands of purchasers with Crown debts unless or until such debts were duly registered and re-registered, whether or not the purchaser had notice thereof. And now, by the stat. 28 & 29 Vict. c. 104, s. 4, a writ of execution in respect of the debt must also have been issued and registered, in order to affect a purchaser, in addition to the registration and re-registration of CROWN DEBTS-continued. the debt itself under the former Acts, whether or not the purchaser have notice of the debt. 66 CROWN OFFICE. An office of the Court of Queen's Bench, the master of which is usually called Clerk of the Crown, and in pleading and other law proceedings is styled coroner and attorney of our Lady the Queen." In this office, the Attorney-General and Clerk of the Crown exhibit informations for crimes and misdemeanours, the former ex officio, the latter commonly by order of the Court. And by 4 & 5 W. & M. c. 18, the master of the Crown Office may file criminal informations, with leave of the Court, upon the complaint or relation of a private subject. 1 Arch. Pract. 9. CROWN PAPER. A paper containing the list of criminal cases which await the hearing or decision of the Court. The term is commonly applied to the Court of Queen's Bench, which has an exclusive criminal jurisdiction; and it then includes all cases arising from informations quo warranto, criminal informations, criminal cases brought up from inferior Courts by writ of certiorari, and cases from the sessions. Bagley's Pr. 559. CUCKING-STOOL. An engine of correction for common scolds, which in the Saxon language is said to signify the scolding-stool, though now it is frequently corrupted into ducking-stool, because the judgment is, that when the woman is placed therein, she shall be plunged in the water for her punishment. It is also variously called a trebucket, tumbrel, and castigatory. 3 Inst. 219. CUI ANTE DIVORTIUM. A writ which lay for a woman, when a widow or when divorced, to recover her estate, which her husband, during her coverture (cui in vita sua, vel cui ante divortium, ipsa contradicere non potuit), has aliened. Britton, c. 114, fol. 264. CUI IN VITA: See title CUI ANTE DI VORTIUM. CULPRIT. Besides its popular sense of a prisoner accused of some crimes, it used formerly to be made use of in the following manner. When a prisoner had pleaded not guilty, non culpabilis, or nient culpable, which used to be abbreviated upon the minutes thus, "non (or nient) cul," the clerk of the assize, or clerk of the arraigns, on behalf of the Crown, replied that the prisoner is guilty, and that he was ready to prove him so. This was done by two monosyllables in the same spirit of abbre CULPRIT-continued. viation, "cul prit," which signifies, first, that the prisoner was guilty (cul, culpable, or culpabilis), and then that the king was ready to prove him so, prit, præsto sum, or paratus verificare. This was therefore a replication on behalf of the king vivâ voce at the bar, which was formerly the case in all pleadings, as well in civil as in criminal causes. CUM TESTAMENTO ANNEXO. Where a deceased person has made a will, but without naming any executor, or has named incapable persons; or where the executors appointed refuse to act, or die intestate, in any of these cases the Court of Probate must grant administration cum testamento annexo (with the will annexed) to some other person, in the choice of whom the Court usually prefers the residuary legatee to the next of kin. 1 Wms. Exors. 348. See title ADMINISTRATION, LETTERS CURE BY VERDICT, TO. After a cause has been sent down to trial, the trial had, and the verdict given, the Courts overlook defects in the statement of a title, which would be available on a demurrer, or if taken at an earlier period. This is what is meant by the term to cure by verdict; and the reason of it is, that the Courts presume that all circumstances necessary in form to complete a title imperfectly stated were proved before the verdict was given; which reason explains the limitation laid down as to the effect of the verdict, viz., that it cures the statement of a title defectively set out, but not of a defective title; for where the plaintiff totally omits to state his title or cause of action, it need not be proved at the trial, and therefore there is no room for the usual presumption. 1 Smith, L. C. 614, Rushton v. Aspinal. See further title AIDER BY VERDICT. CURSITORS. Were officers connected with the Court of Chancery, of very ancient institution, and twenty-four in num CURSITORS-continued. ber. They used to make out all original writs; and the business in the several counties in England in this respect was distributed among them by the Lord Chancellor, by whom they were also appointed. They were called cursitors, from the writs de cursu; in stat. 18 Edw. 3, c. 5, they are called clerks of course. See also title WRITS. CURTESY OF ENGLAND, TENANT BY THE. When a man marries a woman seised of an estate of inheritance, i.e., of land and tenements in fee simple, or fee tail, and has by her issue born alive, which was capable of inheriting her estate; in this case he shall, on the death of his wife, hold the lands for his life as tenant by the curtesy of England (Litt. 35, 52; 2 Bl. 126). And this right is left unaffected by the M. W. P. Act, 1870 (33 & 34 Vict. c. 93). CURTILAGE (curtilagium, from the Fr. cour, court, and Sax. leah, locus). A piece of ground lying near and belonging to a dwelling-house, as a court, yard, or the like. Cowel. are CUSTOM (consuetudo). Is a law not written, but established by long usage, and the consent of our ancestors. Customs are either general or particular; general customs are the universal rule of the whole kingdom, and form the Common Law in its stricter and more usual signification, e.g., primogeniture: particular customs those which for the most part affect only the inhabitants of particular districts, such as gavelkind in Kent, and the like. The Courts are bound to take notice of general customs, but particular customs must be both pleaded and proved before they are judicially noticed. Moreover, a general custom is always good, but a particular custom, in order to be good must present the following characteristics : (1.) It must be reasonable, CUSTOMS OF LONDON. These are particular customs relating to the government of the City of London, and also to trade, apprentices, widows, orphans, &c., within the City. They differ from all other customs in point of trial, for if the existence of the custom be brought in question it shall not be tried by a jury but by certificate from the lord mayor and aldermen by the mouth of their recorder, unless it be such a custom as the corporation is itself interested in, as a right of taking CUSTOMS OF LONDON-continued. toll, &c., for in this latter case the law does not permit them to certify on their own behalf. CUSTOM OF MERCHANTS (lex mercatoria). A particular system of customs used only among one set of the king's subjects, which, however different from the general rules of the Common Law, is yet engrafted into it, and made part of it, being allowed for the benefit of trade to be of the utmost validity in all commercial transactions, it being a maxim of Law cuilibet in sua arte credendum est. This lex mercatoria, or custom of merchants, comprehends the laws relating to bills of exchange, mercantile contracts, sale, purchase, and barter of goods, freight, insurance, &c. The statute law has adopted many of these customs of merchants; and, conversely, it has been suggested that a large part of mercantile customs have had their origin in forgotten statutes. CUSTOMS AND SERVICES annexed to the tenure of lands are those which the tenants thereof owe unto their lords, and which, if withheld, the lord might anciently have resorted to a writ of customs and services to compel them (Cowel). But at the present day he would merely proceed to eject the tenant as upon a forfeiture. CUSTOMARY TENANTS. Tenants who hold their estates according to the custom of the manor. A copyhold tenant is so called because he holds his estate by copy of Court roll by will of the lord according to the custom of the manor; and although a distinction has been made between a copyholder and a customary tenant, yet they both agree in substance, and the difference, if any, between them consists only in this, that a copyhold proper is expressly stated in the grant to be at the will of the lord of the manor, whereas a customary freehold is not so stated, but the same thing is implied. See title COPYHOLDS. CUSTOS ROTULORUM. A special officer to whose custody the records or rolls of the sessions are committed; he is always a justice of the quorum, and is usually selected for his wisdom, countenance, or credit; his nomination is by the king's sign manual, and to him the nomination of the clerk of the peace belongs, which office he is expressly forbidden to sell for money. 37 Hen. 8, c. 1; Lombard. CUSTOS OF THE SPIRITUALITIES. He who exercises spiritual or ecclesiastical jurisdiction in a diocese during the vacancy of the see. Cowel, CUSTOS OF THE TEMPORALITIES. ! He to whose custody a vacant see or abbey was committed by the king as supreme lord, and who, as steward of the goods and profits thereof, was to give an account to the king's escheator, who rendered an account thereof into the exchequer. His trust continued till the vacancy was supplied by a successor, who obtained the king's writ de restitutione temporalium, which was sometimes after and sometimes before consecration, though more frequently after. Cowel. CUSTUMA ANTIQUA SIVE MAGNA (ancient or great duties). Duties payable by every merchant, as well native as foreign, on wool, sheepskins, or woolfells, and leather exported; the foreign merchant had to pay an additional toll, viz., half as much again as was paid by the natives. See also title TAXATION. CUSTUMA PARVA ET NOVA (small and new duties). Imposts of threepence in the pound, due from merchant strangers only, for all commodities as well imported as exported, and usually called the alien's duty. These customs were first granted in 13 Edw. 1. 4 Inst. 22. See also title TAXATION. In CY-PRÈS (as near as, 80 near). cases where an attempt is made to create a perpetuity, i.e., to limit the estate to several successive lives in futuro, there is a material difference between a deed and a will; for in the case of a deed all the limitations are totally void; but in the case of a will, the Courts do not, if they can possibly avoid it, construe the devise to be utterly void, but explain the will in such a manner as to carry the testator's intention into effect, as far as the rule respecting perpetuities will allow, which is called a construction cy-près (6 Cruise, Dig. 165). For example, where a life estate is given by will to an unborn person, with remainder in tail to the child of such unborn person, the Courts will give the estate tail to the first unborn person in lieu of his estate for life, and so as to leave to the second unborn the chance of the estate tail in that way descending upon him, which it will do if not burred. Cy-près does not apply to personal property, there being no estate tail in such property. D. DAMAGE-FEASANT. This means doing damage (damnum facio), and is commonly applied to the beasts of a stranger wandering in another man's grounds, and doing DAMAGE-FEASANT-continued. him damage, i.e., hurt, by treading down his grass, eating his growing crops, and the like, in which case the owner of the land may distrain them until satisfaction is made him for the injury. See also titles DISTRESS; POUND; RE PLEVIN. DAMAGES. Are a pecuniary compensation recoverable by action for breach of contract or for tort. The measure of damages, or test by which the amount of damages is to be ascertained, is in general the same both in contract and in tort, with this single distinction, that the intention with which a contract is broken is perfectly immaterial, while the intention with which a tort is committed may fairly be regarded by the jury in assessing the amount of damages; and generally the Court is not particularly careful to weigh "in golden scales" the damages recoverable in tort. However, in both cases, the general rule is, that damages are, and ought to be, purely compensatory. Occasionally, therefore, only nominal damages will be recovered. But usually the damages are a substantial sum, and that sum is either an ascertained or an unascertained, but ascertainable, sum, being in the former case called liquidated and in the latter case unliquidated damages. If, It is usual in bonds and other specialty contracts to fix the damages for breach of the contract at a liquidated sum. however, the sum so fixed is a penal sum, the Courts, both of Law and of Equity, will relieve against the full amount thereof, and allow the injured party to recover only such part thereof as will compensate him. The Courts carry this relief so far that even if the parties to the contract expressly stipulate that the sum fixed as damages shall be regarded as liquidated damages and not as a penalty, the Courts will, if they can find any ground for doing so, hold that the amount so fixed is a penalty, notwithstanding, and will deal with it accordingly. Kemble v. Farren, 6 Bing. 141. See also title PENALTY. Where the damages do not even profess to be liquidated, but are left altogether uncertain in the contract (as they necessarily are in cases of tort), then the amount is to be ascertained by the jury, or (in some cases) upon a reference by the referee. But by whomsoever the amount is to be ascertained there are certain particular rules of law which must be observed, the principal of which are the following:(1.) In contracts for the sale of goods,(a.) If the vendor fails to deliver, then the amount of damages is the difference between the contract price and the market (2.) Upon breach of a contract to replace stock, the amount of damages is the price of the stock on the day on which it ought to have been replaced or (at the plaintiff's option), its price on the day of the trial; (3.) In an action for the price of goods which have been delivered and received, but which are of inferior quality to that contracted for, (a.) If the full price has been paid, the amount of damages (to be recovered by the purchaser) is the difference between the price given and the actual value of the goods as ascertained by re-selling them; and (b.) If the price has not yet been paid, the amount of damages (to be recovered by the vendor) is the price agreed on minus the difference between that price and the actual value ascertained as before. (4.) In the case of a contract of hiring and service, where the breach consists in a wrongful dismissal, the amount of damages is the usual rate of wages in the particular employment, multiplied by the time that will be required for finding new employment of the same character; and (5.) In the case of a contract for the sale of land, where the breach of contract arises from the vendor's failing to make a good title, then,(a.) If the vendor was unaware at the time of contracting of the defect in his title, the amount of damages is the expense incurred by the vendee in investigating the title, and nothing more (Flureau v. Thornhill, 2 W. Bl. 1078); but (b.) If the vendor was aware at that time of the defect of title, then the amount of damages is the expense incurred by the vendee in investigating the title and also damages for the loss of his bargain. Hopkins v. Grazebrook, 6 B. & C., 31. The following distinctions are also taken in respect of damages, viz: (1.) Some damages are general and some are special; and the rule of law with respect to the latter class of damages is, DAMAGES-continued. that they must be both pleaded and proved, whereas neither of these things is necessary with respect to the former class of damages; for these as being general are implied by the law; and (2.) Some damages are direct, and some are indirect, remote, or consequential. Now, the law permits no damages as a general rule to be recovered excepting such as are the natural consequences, and also the legal consequences, of the breach of contract or of the tort (Vicars v. Willcox, 2 Sm. L. C. 487); but under special circumstances, if those special circumstances have been pointedly, i.e., sufficiently, brought to the knowledge of the offending party, then other damages of a remoter or consequential nature which have arisen from the breach of contract or from the tort, will be recoverable (Hadley v. Baxendale, 9 Ex. 341); and it is in respect of this class of damages when they arise from the commission of a tort that the Court is inclined to be more liberal in the amount which it awards. See generally Mayne on Damages, by Lumley Smith, 1872. This DAMNUM ABSQUE INJURIÂ, phrase denotes the happening of some loss or damage to one person, without any wrong done to him on the part of the person who has caused the loss or damage. A familiar instance of this is the case of a rival schoolmaster who sets up a school near to an existing school, and by so doing draws away by competition merely some or all of the scholars of the latter school. And in the case of one landowner who, by digging a well in his own ground for his own farm, thereby draws off the underground water which supplied a well previously dug in another person's land, we have another instance of a damnum unaccompanied with an injuria (Acton v. Blundell, 12 M. & W. 324; Chasemore v. Richards, 7 H. L. Ca. 349). The converse phrase, injuria sine damno, is, on the other hand, always actionable, upon the ground that every injuria being an interference with another person's right, necessarily and in the very nature of it importeth a damnum. Ashby v. White, 2 Ld. Raym. 953. DANBY, IMPEACHMENT OF. The Earl of Danby, minister of Charles II., was cognisant of that sovereign's secret treaty with France, and for his complicity therein was impeached. Upon his impeachment three questions of a technical legal importance were raised: : (1.) Whether the Lords, upon a mere general charge of treason, were able to commit the accused to prison without bail:-Held, that they might. |