A New Law Dictionary and Institute of the Whole Law

CLERGY, BENEFIT OF-continued. emption of places consecrated to religious duties from criminal arrests, which was the foundation of sanctuaries; (2.) Exemption of the persons of clergymen from criminal process before the secular judge in a few particular cases, which was the true original meaning of the phrase "benefit of clergy." In England, however, although the usurpations of the pope were very many and grievous, till Henry VIII. entirely exterminated his supremacy, yet a total exemption of the clergy from secular jurisdiction could never be thoroughly effected, though often endeavoured by the clergy; and therefore, though the ancient benefit of clergy was in some capital cases, yet it was not universally, allowed. And in some particular cases the use was for the bishop or ordinary to demand the clerks to be remitted out of the king's Courts as soon as they were indicted; concerning the allowance of which demand there was for many years great uncertainty, till at length it was finally settled in the reign of Henry VI., that the prisoner should first be arraigned, and might then claim his benefit of clergy by way of declinatory plea; or after conviction by way of arresting judgment. But afterwards other persons were placed upon the same footing with the clergy with respect to this privilege. It was formerly required that those who claimed benefit of clergy should be able to read; but by 5 Ann. c. 6, it was enacted that the benefit of clergy should be granted to all those who were entitled to ask it, without requiring them to read by way of conditional merit, hence persons convicted of manslaughters, bigamies, and simple or grand larcenies, &c., were asked what they had to say why judgment of death should not be pronounced upon them; and they were then told to kneel down and pray the benefit of the statute. The abuses attending the privilege grew very many, and a better code of criminal law and procedure in later days tacitly supplanted the plea, which was ultimately abolished altogether by the stat. 7 & 8 Geo. 4, c. 28, s. 6.

CLERGYMEN. These, who are otherwise called clerks in holy orders, enjoy certain privileges, and are subject to certain disabilities in law. Thus, on the one hand, they are exempt from serving on juries (6 Geo. 4, c. 50), and they are protected from all obstructions in the discharge of their duty (24 & 25 Vict. c. 100, 8. 36); while, on the other hand, they cannot be members of the House of Commons, and labour under a general disability as to trade; but they may be owners of shares in a company (Lewis v. Bright, 4 El. & Bl. 917.) Their professional and private conduct is more severely judged of than is that of private individuals in

CLERGYMEN-continued.

general, the entire body of the Canon Law being binding upon them.

A clerk

CLERK OF THE ASSIZE. whose duty it was to record all things judicially done by the justices of assize in their circuits. Cromp. Juris. 227; Cunningham; abolished by 7 Will. 4 & 1 Vict. c. 30.

CLERK OF THE COMMONS. An officer whose duty it is to attend to matters connected with the business of the House of Commons. He is assisted by two "clerks assistant," who sit at the table with him; he signs orders of the House, indorses bills, reads anything required to be read, and makes short minutes of the business transacted known as the "Votes and Proceedings." He holds his office for life under the Crown, and is appointed by letters patent.

This is an

CLERK OF THE CROWN. officer of the Court of Chancery, appointed under the Royal Sign Manual. He performs the duties of the Clerk of the Hanaper (see next title); his office is continued by the Great Seal (Offices) Act, 1874, (37 & 38 Vict. c. 81), which also regulates the fees to be taken in the office. His duties are not confined to the Court of Chancery, but follow the Lord Chancellor even to Parliament. Thus, upon the meeting of a new Parliament, the Clerk of the Crown in Chancery delivers to the Clerk of the House of Commons (see that title) a list of the names of members returned to serve in the Parliament, after which the Commons go up to the House of Lords, and the Lord Chancellor addresses them generally upon the object and purposes of their being summoned to Parliament. The Clerk of the Crown also certifies in like manner the election of representative peers for Scotland and Ireland. Moreover, all warrants to issue new writs are directed to him; and he reads all the titles of bills at the time the royal assent is signified to them by commission. See May's Parl. Prac., 7th ed., pp. 185, 187-8, 630, and 529.

CLERK OF THE HANAPER, or HAMPER. An officer of the Court of Chancery, whose duty it was to receive all the money due to the king for the seals of charters, patents, commissions, and writs; and also fees due to the officers for enrolling and examining the same. Cowel.

CLERK OF THE HOUSE OF COMMONS. An officer appointed by the Crown, whose duty it is to make a record of the proceedings of the House, which he or his deputies enter upon the journals, to receive and preserve the petitions presented to the House, and generally to assist the Speaker in the details of his very onerous duties. He is usually a barrister-at-law. Similar

CLERK OF THE HOUSE OF COMMONS

-continued.

officers are employed in the House of Lords. By the 33 Geo. 3, c. 13, the clerk of Parliament is directed to indorse on every Act, immediately after the title thereof, the day, month, and year when the same shall have passed, and shall have received the royal assent; and such indorsement shall be taken to be part of the Act, and shall be the date of its commencement, where no other commencement shall have been provided by the Act.

CLERK OF THE PARLIAMENT ROLLS. An officer in the High Court of Parliament, who records all things done therein, and engrosses them fairly on parchment rolls, for their better preservation to posterity. There is one of these officers to each House of Parliament. Cowel.

See also title CLERK OF THE HOUSE OF
COMMONS.

CLERK OF THE PARLIAMENTS.
officer of the House of Lords, whose duties
are similar to those of the chief clerk in
the House of Commons.

See title CLERK OF THE HOUSE OF
COMMONS.

An officer be-
CLERK OF THE PEACE.
longing to the sessions of the peace, whose
duty it is to read indictments, to enrol the
Acts, draw the process, and perform various
other duties connected with the adminis-
tration of justice at the sessions.

There

An offiCLERK OF THE PETTY BAG. cer of the Court of Chancery, whose duty it used to be to record the return of all inquisitions out of every shire; to make out patents of customers, gaugers, controllers, and aulnagers; all congés d'élire for bishops; the summons of the nobility, clergy, and burgesses to Parliament, &c.33 Hen. 8, c. 22; Cowel. But most, if not all, of these functions have been superseded. CLERK OF THE PRIVY SEAL. are four of these officers, who attend the lord privy seal, or in the absence of a lord privy seal, the principal secretary of state, Their duty is to write and make out all things that are sent by warrant from the signet to the privy seal, and which are to be passed to the great seal; and also to make out privy seals (as they are termed) upon any special occasion of his majesty's affairs, as for the loan of money and such like purposes. 27 Hen. 8, c. 11. Cowel.

An officer

CLERK OF THE SIGNET.
whose duty it is to attend on his majesty's
principal secretary, who always has the
custody of the privy signet, as well for the
purpose of sealing his majesty's private
letters, as also grants which pass his
majesty's hand by bill signed: there are
four of these officers. 27 Hen. 8, c. 11.
Cowel.

CLOSE ROLLS and CLOSE WRITS. Certain letters of the king scaled with his great seal and directed to particular persons and for particular purposes, and not being proper for public inspection, are closed up and sealed on the outside, and are thence called writs close (literæ clausa), and are recorded in the close rolls in the same manner as others are in the patent rolls (literæ patentes), or open letters.

CLUBS. These are companies, but not being for profit are not within the meaning of the Winding-up Acts (In re St. James's Club, 2 De G. M. & G. 383). They are essentially social, and the exclusion of a member, if not wanton, is without remedy. Hopkinson v. Exeter (Marquess), L. Ř. 5 Eq. 63.

COALS. By stat. 5 & 6 Will. 4, c. 63, all coals must be sold by weight and not by measure, under a penalty of 408. By stat. 23 & 24 Vict. c. 191, provision is made for the inspection and regulation of coal mines in Great Britain; and under the Act 25 & 26 Vict. c. 79, amending same, it is not lawful for the owner of any new mine nor (after 1st January, 1865) of any existing mine, to work same by a single shaft, but two shafts admitting of distinct means of ingress and egress are required, but need not belong to one and the same mine, provided they are in communication.

CODICIL.

A supplement to a will, or an addition made by the testator and annexed to the will, being written for the explanation or alteration or for the purpose of making some addition to, or some subtraction from, the dispositions of the testator as contained in his will. In the Roman Law, a codicil was an informal will; but in English Law, the formalities of execution and of attestation are as strict in the case of codicils as in that of wills. See title WILLS.

This 1st. It

upon

COGNISANCE or CONUSANCE. word has several significations. signifies an acknowledgment. It is used in this sense when applied to fines, or those fictitious suits, by means of which estates in lands were transferred from one 46 sur cogparty to another. Thus a fine nisance de droit" signified a fine acknowledgment of the right." 2nd. The word is applied to that plea or answer put in by the defendant in an action of replevin, when he acknowledges the taking of the distress in respect of which the action is brought, but insists that such taking was legal, as he acted with the command of another who had a right to distrain. Here, it will be observed, the defendant makes an acknowledgment of the fact charged against him, but offers a

COGNISANCE, or CONUSANCE-contd. legal excuse for his conduct. (See Trevilian v. Pyne, 1 Salk, 107; Chambers v. Donaldson, 11 East, 65.) 3rd. It is used in the sense of judicial notice or superintendence. Thus cognisance of pleas signifies the right or privilege granted by the Crown to any person or body corporate, not only to hold pleas within a particular jurisdiction, but also to take cognisance of them, i.e., to take judicial notice or superintendence of them, in other words, to have jurisdiction

to hear them.

COGNOVIT ACTIONEM. An instrument signed by a defendant in an action, conjessing the plaintiff's demand to be just. The defendant who signs this cognovit thereby empowers the plaintiff to sign judgment against him, in default of his paying the plaintiff the sum due to him within the time mentioned in the cognovit. Under the stat. 1 & 2 Vict. c. 110, s. 9, every such cognovit must be attested by an attorney, who must also under stat. 32 & 33 Vict. c. 62, s. 24, have explained to the debtor the nature of the instrument. And under the last-mentioned statute, 8. 26, every cognovit must be filed with the clerk of docquets and judgments in the Court of Queen's Bench within twenty-one days next after the execution thereof, otherwise the same is void as being fraudulent against creditors.

See also title WARRANTY.

COLLATION TO A BENEFICE. Advowsons are either presentative, collative, or donative. (1.) An advowson presentative is where the patron has a right of presentation to the bishop or ordinary, and moreover to demand of him to institute his clerk, if he finds him canonically qualified, and this is the most usual kind of advowson. (2.) An

COLLATION TO A BENEFICE-contd. advowson collative is where the bishop and patron are one and the same person, in which case the bishop cannot present to himself, but in the one act of collation, or conferring of the benefice, he does all that is usually done in presentative advowsons by both presentation and institution. 3. Regarding the advowson donative, see title ADVOWSON.

COLLIGENDUM

BONA DEFUNCTI

(Letters ad). When a person dies intestate and leaves no representatives or creditors to administer, or leaving such representatives and creditors, they refuse to take out administration, &c., the judge of the Court of Probate may commit administration to such discreet person as he approves of, or grant him these letters ad colligendum bona defuncti (to collect the goods of the deceased). Such a grant is purely official, and does not constitute him executor or administrator, his only business being to take care of the goods, and to do other acts for the benefit of those who are entitled to the property of the deceased.

See title ADMINISTRATION, LETTERS

recovery.

COLONIES. As a general rule, a colony acquired by discovery and occupation is to be governed by the laws of England; and if acquired by conquest, then by its own laws, so far as they are not contrary to morality, and until the conqueror sees fit to change them. But when the laws of England depend upon circumstances that are peculiar to Engiand, and which do not apply to the colonies also, then these particular laws do not hold good in the colonies, e.g., the Law of Mortmain in the Island of Grenada. Attorney-General v. Stewart, 2 Mer. 143; and see Mayor of Lyons v. East India Co., 1 Moo. P. C. C. 175, as to India.

COLOUR. A technical term used in pleading to signify that apparent right of the opposite party, the admission of which is required in all pleadings, by way of confession and avoidance. Of such pleadings it is, as the name imports, of their

COLOUR-continued.

very essence to confess the truth of the allegation which they propose to answer or avoid, which formerly was done by an introductory sentence-True it is that, &c.," preceding the defence relied upon in answer. But though this formal admission is now generally abandoned, it is still essential that the confession clearly appear on the face of the pleading. In many places it is absolute and unqualified; as, in an action on a covenant, a plea of release admits absolutely the execution of the covenant and the breach complained of; but in some the confession is of a

The

qualified kind, or sub modo only. Thus,
to an action of trespass for taking the
plaintiff's corn, a plea that the defendant
was rector, and that the corn was set out
for tithe, and that he took it as such rector,
would be a good plea by way of confession
and avoidance. For though there is no
direct confession that the defendant took
the plaintiff's corn as alleged in the decla-
ration, but, on the contrary, an assertion
of a title to the corn in himself, yet the
plea implies that the plaintiff was the ori-
ginal owner, and entitled against all the
There is,
world, except the defendant.
therefore, a confession, so far as to admit
some sort of apparent right or colour of
claim in the plaintiff, and is therefore
within the rule laid down by pleaders on
this subject; that pleadings in confession
and avoidance should give colour.
colour thus explained, inherent in the
structure of all pleadings in confession and
avoidance, is termed implied colour, to dis-
tinguish it from express colour, which,
instead of an implied admission, is a direct
and positive assertion of an apparent title
in the opposite party, introduced into
pleadings of this nature to satisfy the rule
as to confession or admission. This latter
kind of colour is employed, or used to be
employed, in cases where the pleader was
desirous of pleading by way of confession
and avoidance to a traverse, and the facts
of his case admitted no sort of title in the
opposite party, or, in other words, gave no
implied colour. He then, for the express
purpose of giving colour, inserted in his
plea a fictitious allegation of some colour-
able but insufficient title in the plaintiff,
which he at the same time avoided by the
preferable title of the defendant. And in
his replication the plaintiff was not allowed
to traverse the fictitious matter thus sug-
gested. The practice of giving express
colour came to be almost entirely confined
to trespass and trover, and in those ac-
tions extended to no other pleading than
the plea. The form adopted in trespass
to land was to allege a defective charter
of demise, and in trespass for taking goods,

COLOUR-continued.

that the defendant delivered the goods to a stranger, who delivered them to the plaintiff, from whom the defendant took them. By these allegations a colourable or apparent right was given to the plaintiff in both cases, and the pleas were rendered good, which otherwise would have been defective for want of colour (Stephen on Pl. 229, et seq.; 1 Ch. Pl. 504; Reeves,

E. L. 438.) But under the C. L. P. Act, 1852, s. 64, express colour is no longer necessary, and the better opinion is that under s. 49 of that Act it is abolished.

COMBINATION OF WORKMEN. The stat. 22 Vict. c. 34, enacts, in explanation of the stat. 6 Geo. 4, c. 129, that no workman, by reason merely of his combining with other workmen for the purpose of fixing the rate of wages, or for the purpose of peaceably and without threat or intimidation dissuading others from working with a view to fixing the rate of wages, shall be deemed or taken to be guilty of the offence of molestation or obstruction; but the Act is not to authorize a workman to break his contract. See also Trades Unious Act, 1871 (34 & 35 Vict. c. 31), and Criminal Law Amendment Act, 1871 (34 & 35 Vict. c. 32).

COMMANDITE: See title SOCIÉTÉ.

COMMENDAM (ecclesia commendata). The holding a living or benefice in commendam is (where a vacancy occurs) holding such living commended by the Crown until a proper pastor is provided for it. This may be temporary for one, two, or three years; or perpetual, being a kind of dispensation to avoid the vacancy of the living, and is called a commenda retinere. These commendams are now seldom granted except to bishops.

See also next title. COMMENDATORS. Secular persons on whom benefices or church livings are bestowed. They are so called because the benefices were commended and intrusted to their oversight; they are not proprietors, but only a kind of trustees. Where the bishop is commendatory, the grant is usually made to him while he continues bishop of the particular diocese, and not longer, the intention of the grant being to augment the revenues of the bishopric where it is poor.

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