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CRIMINAL LAW-continued.

The mode of procedure in criminal cases is various, being either (1.) by indictment, which is the regular course (see title INDICTMENT); or (2.) by summary proceedings before a magistrate (see title SUMMARY CONVICTIONS); or (3.) by Criminal Information (see that title).

For the evidence adduceable in support of and against the charge, see title EviDENCE.

And with reference to appeals and proceedings in the nature thereof in criminal cases, the following is a statement of the present law upon the subject

(1.) No new trial can be granted in cases of felony; but with respect to misdemeanours, it is entirely discretionary with the Court whether it will grant or refuse

new trial. Rex v. Mawbey, 6 T. R. 638.

(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, wbich 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 misdenieanour (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-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 bimself, 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. 1 Chit. Pl. 595. See also preceding titles.


CROWN COURT. Is the Court in which the Crown or criminal business of the assizes is transacted.

See titles Civil SIDE; PLEA SIDE.

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

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, 8. 22, it was enacted, that lands should not be charged in the bands 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.

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 otfice, 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.

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 virâ 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. 318. See title ADMINISTRATION, LETTERS

OF. CUMULATIVE LEGACY. Legacies are said to be cumulativeas contradistinguished from such as are merely repeated. Where the testator has twice bequeathed a legacy to the same person, it becomes a question whether the legatee be entitled to both, i.e., whether the second legacy shall be regarded as a repetition merely of the prior bequest, or as an additional bounty and cumulative to the other benefit. On this point the intention of the testator is the rule of construction. 2 Wms. Exors. 1020.


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.


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

CURE BY VERDICT, TO. After a cause has been sent down to trial, the trial bad, 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 numCURSITORS-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.

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 à particular custom, in order to be good must present the following characteristics :

(1.) It must be reasonable,
(2.) It must be certain,
(3.) It must be compulsory,
(4.) It must be immemorial, and
(5.) It must be possible in law.

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 & 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. DAMAGE-FEASANT-continued. He to whose custody a vacant see or abbey bim damage, i.e., hurt, by treading down was committed by the king as supreme his grass, eating his growing crops, and lord, and who, as steward of the goods and the like, in which case the owner of the profits thereof, was to give an account to land may distrain them until satisfaction the king's escheator, who rendered an is made him for the injury. account thereof into the exchequer. His See also titles DISTRESS; POUND; REtrust continued till the vacancy was supplied by a successor, who obtained the

DAMAGES. king's writ de restitutione temporalium,

Are a pecuniary compenwhich was sometimes after and sometimes

sation recoverable by action for breach of

contract or for tort. The measure of dabefore consecration, though more frequently after. Cowel.

mages, or test by which the amount of

damages is to be ascertained, is in general CUSTUMA ANTIQUA SIVE MAGNA the same both in contract and in tort, with (ancient or great duties). Duties payable this single distinction, that the intention by every merchant, as well native as fo

with which a contract is broken is perreign, on wool, sheepskins, or woolfells, fectly immaterial, while the intention with and leather exported; the foreign mer

which a tort is committed may fairly be rechant had to pay an additional toll, viz., garded by the jury in assessing the amount half as much again as was paid by the of damages; and generally the Court is not natives.

particularly careful to weigh “ in golden See also title TAXATION.

scales” the damages recoverable in tort.

However, in both cases, the general rule CUSTUMA PARVA ET NOVA (small is, that damages are, and ought to be, and new duties). Imposts of threepence purely compensatory. Occasionally, therein the pound, due from merchant strangers fore, only nominal damages will be recoonly, for all commodities as well imported vered. But usually the damages are a as exported, and usually called the alien's substantial sum, and that sum is either an duty. These customs were first grauted ascertained or an unascertained, but ascerin 13 Edw. 1. 4 Inst. 22.

tainable, sum, being in the former case See also title TAXATION.

called liquidated and in the latter case

unliquidated damages. CY-PRÈS (as near as, 80 near). In It is usual in bonds and other specialty cases where an attempt is made to create contracts to fix the damages for breach of a perpetuity, i.e., to limit the estate to the contract at a liquidated sum. If, several successive lives in futuro, there is however, the sum so fixed is a penal sum, a material difference between a deed and the Courts, both of Law and of Equity, will a will; for in the case of a deed all the relieve against the full amount thereof, and limitations are totally void; but in the allow the injured party to recover only case of a will, the Courts do not, if they such part thereof as will compensate him. can possibly avoid it, construe the devise The Courts carry this relief so far that even to be utterly void, but explain the will in if the parties to the contract expressly such a manner as to carry the testator's stipulate that the sum fixed as damages intention into effect, as far as the rule shall be regarded as liquidated damages respecting perpetuities will allow, which is and not as a penalty, the Courts will, if called a construction cy-près (6 Cruise, Dig. they can find any ground for doing so, 165). For example, where a life estate is hold that the amount so fixed is a penalty, given by will to an unborn person, with notwithstanding, and will deal with it remainder in tail to the child of such un- accordingly. Kemble v. Farren, 6 Bing. born person, the Courts will give the estate 141. See also title PENALTY. tail to the first unborn person in lieu of Where the damages do not even profess his estate for life, and so as to leave to the to be liquidated, but are left altogether unsecond unborn the chance of the estate certain in the contract (as they necessarily tail in that way descending upon him, are in cases of tort), then the amount is to which it will do if not burred. Cy-près be ascertained by the jury, or (in some does not apply to personal property, there cases) upon a reference by the referee. being no estate tail in such property. But by whomsoever the amount is to be

ascertained there are certain particular

rules of law which must be observed, the D.

principal of which are the following :

(1.) In contracts for the sale of goods,DAMAGE-FEASANT. This means doing (a.) If the vendor fails to deliver, damage (damnum facio), and is commonly

then the amount of damages applied to the beasts of a stranger wander

is the difference between the ing in another man's grounds, and doing

contract price and the market

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DAMAGES- continued. price of the goods at the time that they must be both pleaded and proved, of the breach; and

whereas neither of these things is neces(6.) If the vendee refuses to accept, sary with respect to the former class of

then the amount of damages is damages; for these as being general are the like difference,

implied by the law; and (2.) Upon breach of a contract to replace (2.) Some damages are direct, and some

stock, the amount of damages is are indirect, remote, or consequential. the price of the stock on the day Now, the law permits no damages as a on which it ought to have been general rule to be recovered excepting replaced or (at the plaintiff's such as are the natural consequences, and option), its price on the day of the also the legal consequences, of the breach trial;

of contract or of the tort (Vicars v. Willcox, (3.) In an action for the price of goods 2 Sm. L. C. 487); but under special circum

which have been delivered and re- stances, if those special circumstances have ceived, but which are of inferior been pointedly, i.e., sufficiently, brought to

quality to that contracted for, the knowledge of the offending party, then (a.) If the full price has been paid, other damages of a remoter or consequen

the amount of damages (to be tial nature which have arisen from the recovered by the purchaser) breach of contract or from the tort, will be is the difference between the recoverable (Hadley v. Baxendale, 9 Ex. price given and the actual 341); and it is in respect of this class of value of the goods as ascer- damages when they arise from the com

tained by re-selling them; and mission of a tort that the Court is inclined (6.) If the price has not yet been to be more liberal in the amount which it

paid, the amount of damages awards. See generally Mayne on Damages,
(to be recovered by the vendor) by Lumley Smith, 1872.
is the price agreed on minus
the difference between that DAMNUM ABSQUE INJURIÂ.

This price and the actual value as- phrase denotes the happening of some loss certained as before.

or damage to one person, without any (4.) In the case of a contract of hiring wrong done to him on the part of the perand service, where the breach con

son who has caused the loss or damage. A sists in a wrongful dismissal, the

familiar instance of this is the case of a amount of damages is the usual rival schoolmaster who sets up a school rate of wages in the particular near to an existing school, and by so doing employment, multiplied by the draws away by competition merely some or time that will be required for

all of the scholars of the latter school. And finding new employment of the in the case of one landowner who, by same character; and

digging a well in his own ground for liis (5.) In the case of a contract for the sale own farm, thereby draws off the under

of land, where the breach of con- ground water which supplied a well pretract arises from the vendor's failing viously dug in another person's land, we to make a good title, then,

have another instance of a damnum unac(a.) If the vendor was unaware at companied with an injuria (Acton v. the time of contracting of the

Blundell, 12 M. & W. 324; Chasemore v. defect in his title, the amount

Richards, 7 H. L. Ca. 349). The converse of damages is the expense in- phrase, injuria sine damno, is, on the other curred by the vendee in inves- hand, always actionable, upon the ground tigating the title, and nothing that every injuria being an interference (Flureau v. Thornhill,

with another person's riglit, necessarily 2 W. Bl. 1078); but

and in the very nature of it importeth a (6.) If the vendor was aware at that damnum. Ashby v. White, 2 Ld. Raym. time of the defect of title, then

953. the amount of damages is the DANBY, IMPEACHMENT OF. The expense incurred by the vendee Earl of Danby, minister of Charles II., in investigating the title and was cognisant of that sovereign's secret also damages for the loss of his treaty with France, and for his complicity bargain. Hopkins v. Graze- therein was impeached. Upon his imbrook, 6 B. & C., 31.

peachment three questions of a technical The following distinctions are also taken legal importance were raised :in respect of damages, viz :

(1.) Whether the Lords, upon a mere (1.) Some damages are general and some general charge of treason, were able to are special; and the rule of law with commit the accused to prison without respect to the latter class of damages is, bail :-Held, that they might.


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