COMMON, RIGHT OF-continued. belonging to another. There are four kinds of rights of common, viz.: (1.) Common of Pasture, which may be, either (a.) Appendant (see that title); or (d.) In Gross (see that title); (3.) Common of Estovers, as to which, see title ESTOVERS; (4.) Common of Turbary, as to which, see title TURBARY. As a general rule, rights of common are acquired in the same manner as easements (see that title), viz., either (1.) By grant; or (2.) By prescription, which implies a grant. And the Prescription Act, 2 & 3 Will. 4, c. 71, applies to all varieties of rights of common, for the acquisition of which it appoints thirty years and sixty years, the former conferring a title defeasible otherwise than with reference to time, and the latter a title defeasible by production of written evidence only. Similarly, the remedies for disturbance of a right of common are the same as for the denial or obstruction of an easement, viz. : (1.) Case, which is substituted for the old right of admeasurement; (2.) Abatement; and (3.) Bill in Equity. Rights of common may be extinguished in one or other of the following ways: (1.) By unity of possession; (2.) By release; COMMON BAR. A plea was so termed, which was frequently pleaded by a defendant in an action of trespass quare clausum fregit. In this action, if the plaintiff declared against the defendant for breaking his close in a certain parish, without otherwise particularizing or describing the close, and the defendant himself happened to have any freehold land in the same parish, he frequently affected to mistake the close in question for his own, and pleaded what was called the common bar, viz., that the close in which the trespass was committed was his own freehold, which compelled the plaintiff to new assign, i.e., to assign his cause of complaint over again, alleging that he brought his action in respect of a trespass committed upon a different close COMMON BAR-continued. from that claimed by the defendant as his own freehold. Now, however, a defendant cannot well affect ignorance with regard to the real close, as by a rule of Court (Hil. Term, 4 Will. 4), the plaintiff is now bound to particularize the close or place in the declaration by assigning to it its familiar name, or by describing it by its abuttals or other sufficient description. The abovementioned plea is also called a bar at large and a blank bar. Steph. Plead. 250, 4th ed. COMMON BENCH. The Court of Common Pleas was formerly so called, because the causes of common persons, i.e., causes between subjects only, and in which the Crown had no interest, were tried and determined in that Court. The plain COMMON INTENDMENT. common meaning of any writing, as apparent on the face of it, without straining or distorting the meaning of the writer. Bar to common intendment is an ordinary or general bar to the declaration of a plaintiff. Co. Litt. 78; Cowel. COMMON INTENT. 66 Certainty in pleading has been stated by Lord Coke (Co. Litt. 303) to be of three sorts, viz., certainty to a common intent, to a certain intent in general, and to a certain intent in every particular. By a common intent, I understand, that when words are used which will bear a natural sense, and also an artificial one, or one to be made by argument or inference, the natural sense shall prevail, it is simply a rule of construction and not of addition, Common intent, cannot add to a sentence words which are omitted." Per Buller, J., Doraston v. Payne 2 H. Bl. 527; 2 Smith's L. C. 132. COMMON PLEAS (communia placita). One of the superior Courts of Common Law. The proceedings in this Court are the same as those in the other Courts of Common Law. The Court was fixed at Westminster by or in virtue of that provision in Magna Carta requiring communia placita to be held in some one definite place (aliquo certo loco teneantur). See also title COURTS OF JUSTICE. COMMON SERJEANT. Is a judicial officer attached to the corporation of the City of London, who assists the recorder in disposing of the criminal business at the Old Bailey Sessions. COMMON TRAVERSE: See title TRA VERSE. COMMUNE CONCILIUM REGNI ANGLIE. The general council of the realm assembled in Parliament. Cowel. See also title COURTS OF JUSTICE. As COMPOSITION WITH CREDITORS. well by the Common Law as under the Bankruptcy Act, 1869, it is lawful for a debtor in embarrassed circumstances to come to an arrangement with his creditors to pay them so much in the pound, and to be released or forgiven by them the rest. The agreement is usually carried out by means of a composition deed, but such a deed is not requisite by the Common Law, there being a sufficient consideration to support the arrangement as a simple contract merely, in the mutual agreement of all the creditors in consideration of the agreements of the others to assent to the composition (Sibree v. Pripp, 15 M. & W. 23). It is necessary by the Common Law that all the creditors should have assented to the composition; but under the Bankruptcy Act, 1869, a majority in number and three-fourths in value may bind the minority, see sect. 126. See also titles LIQUIDATION; BANK RUPTCY. COMPOUNDING FELONY, or THEFTBOTE. Where a person has been robbed, and he knows the felon, and receives back from him his goods that were stolen, or some other amends, upon agreement not to prosecute, this is a misdemeanour. See also title ADVERTISEMENT. COMPROMISE OF SUIT. When a suit is not carried through to verdict, or decree, or judgment, but the parties agree upon certain terms, which include a stay of proceedings, they are said to compromise the suit A mere doubtfulness of right is a COMPROMISE OF SUIT-continued. sufficient consideration to support a compromise (Callisher v. Bischoffsheim, L. R. 5 Q. B. 449). Counsel for the parties may also compromise a suit without the authority and even against the wishes of their clients. The parties themselves may compromise it, but without prejudice to their solicitor's lien. Wright v. Burrows, 3 C. B. 344. COMPURGATORS. Persons who swear they believe the oath of another person made in defence of his own innocence. Such was the case with the clergy, who, when accused of any capital crime, were not only required to make oath of their own innocence, but also to produce a certain number of persons, called compurgators, to swear that they believed the oath of the accused. It is a rude form of evidence, the modern phase of which is character-evidence. See that title. COMPUTE, RULE TO. In cases where the plaintiff had an interlocutory judgment, and the amount of damages was a simple matter of calculation, and no evidence was required to ascertain the amount, beyond what was apparent on the face of the pleadings, the Court, instead of putting the plaintiff to execute a writ of inquiry, would refer it to the master to compute principal and interest. This course was usually pursued when interlocutory judgment had been signed in an action on a bill of exchange, or promissory note, or banker's cheque. The Courts in the first instance granted a rule to shew cause why it should not be referred to the master to compute principal and interest, &c., which rule had to be served upon the defendant, and if cause was not shewn the rule was made absolute (Bayley's Pr. 221; Lush's Pr. 706). But, under the present practice, as regulated by the C. L. P. Act, 1852, in the case of judgment by default no rule to compute is necessary (s. 92); and in actions where the plaintiff seeks to recover a debt or liquidated demand in money, judgment by default is final (s. 93); while in actions in which the amount of damage is substantially a matter of calculation, it is not necessary to issue a writ of inquiry, but the Court or a judge may direct that the amount for which final judgment is to be signed shall be ascertained by one of the masters, who shall indorse his finding on the rule or order referring the matter to him, and the indorsement is to have the effect of a verdict upon a writ of inquiry (s. 94). The order of reference is obtained upon summons. CONCLUSION TO THE COUNTRY. When a party in pleading traverses or denies a material fact or allegation advanced by his opponent, he usually concludes his plead A NEW LAW DICTIONARY. CONCLUSION TO THE COUNTRY-contd. ing with an offer that the issue so raised may be tried by a jury: this he does by stating that he "puts himself upon the country;" and a pleading which so concludes is then said to conclude to the country; and the technical phrase itself is termed a "conclusion to the country." CONCORD (concordia). An agreement entered into between two or more persons, upon a trespass having been committed, by way of amends or satisfaction for the trespass. In that species of conveyance which was formerly in use, called a fine, the word "concord" also occurs; and here it signifies an agreement, called the finis concordiæ, between the parties, who are levying the fine of lands one to another, how and in what manner the lands shall pass; this concord is usually an acknowledgment from the deforciants that the lands in question are the right of the complainant; and from this acknowledgment, or recognition of right, the party levying the fine is called the cognizor, and he to whom it is levied the cognizee. CONDEMNATION MONEY. The party who fails in a suit or action is sometimes said to be condemned in the action, whence the damages to which such failure has made him liable used to be frequently called condemnation money. Thus in proceedings to enforce a recognizance by writ of scire facias it is laid down that "these persons (the bail) stipulated that if the defendant should be condemned in the action, he should pay the condemnation money, or render himself into custody." CONDITION. In French Law, the following peculiar distinctions are made:(1.) A condition is casuelle, when it depends on a chance or hazard;" (2.) A condition is potestative, when it depends on the accomplishment of something which is in the power of the party to accomplish; (3.) A condition is mixte, when it depends partly on the will of the party and partly on the will of others; (4.) A condition is suspensive, when it is the future and uncertain event, or present but unknown event, upon which an obligation takes or fails to take effect; (5.) A condition is resolutoire, when it is the event which undoes an obligation which has already had effect as such. CONDITIONS-continued. under an indenture executed after the 1st A condition affecting freehold lands And with reference to the breach of conditions: By the Common Law, no one could take advantage by entry of the breach of a condition, except persons who were parties or privies in right and representation. Therefore, by the Common Law, neither privies in law* (e.g., lords claiming by escheat) nor grantees and assignees of the reversion, could have such advantage of it. But by stat. 32 Hen. 8, c. 34, grantees and assignees now possess this right, whether the grant is of the whole or only of a part of the estate of the reversion, but not so as to apportion the condition; however, now, by stat. 22 & 23 Vict. c. 35, s. 3, such apportionment may be made where the reversion is split up into parts. Even when lands are descendible by some rule or custom to a person other than the heir by the Common Law, e.g., in gavelkind lands, none but the heir by the Common Law may enter for the breach; although after such entry, the customary heir or heirs may enter on him, and enjoy along with him, if the custom so direct. But the right of taking advantage of a breach of condition being merely personal (1 Pres. Shep. T. 150), not even the heir at Common Law may enter for a condition broken in the lifetime of his ancestor. See also succeeding titles. In Roman CONDITIONS, IMPOSSIBLE. But a distinction has been taken, case. Nevertheless if the condition were implied in law, privies in law might take advantage of the breach. CONDITIONS, IMPOSSIBLE-continued. tracting parties at the time of their contracting (in which case the contract is invariably void, as being simply foolish), and a condition which only subsequently to the contract becomes void, or the impossibility of which was unknown to the parties at the time of the contract (in which latter case the contract may or may not, according to the language, be and remain binding). See Leake on Contracts, 356. CONDITIONS PRECEDENT AND SUBSEQUENT. These may be either precedent to the vesting of an estate or right of action, or subsequent thereto, and divesting the estate or right. (a.) Conditions precedent and subsequent with reference to estates. In the construction of personal bequests, where the condition is precedent, and there is no limitation over on its non-fulfilment, it is sufficient if it is performed in substance, when from unavoidable circumstances it cannot be fulfilled to the letter; but when there is a limitation over of the legacy on non-fulfilment of the condition, a strict and literal performance is required (1 Wh. Rop. Leg. 769). On the other hand, when the condition is subsequent, then, as being odious, it is construed with strictness, and to be of any avail to defeat an estate (whether vested or contingent), it must have been fulfilled to the letter (1 Wh. Rop. Leg. 783); for it is only reasonable that before a person is deprived of the benefit conferred upon him the literal event on which the forfeiture is to arise should happen, more especially if the benefit is already vested in enjoyment, and it makes no difference for that matter that the condition which is subsequent to the one estate is precedent to another, either introducing a fresh conditional limitation, or accelerating a limitation already in existence in remainder. These principles may be illustrated by a reference to conditions of consent to marriage. Thus, if in the event of a legatee marrying without the consent of a trustee or executor, the legacy is to go over to another person, and either the trustee dies before the marriage, and before his consent is obtained, or the executor renounces, the interest of the prior legatee becomes absolute, and he or she may marry without consent without forfeiting the legacy. This is a condition subsequent. Again, if a condition which is precedent to some bequest requires the consent of three trustees to the marriage of the legatee, and one of those trustees dies, the approbation of the surviving two trustees previously to the marriage will be a sufficient compliance CONDITIONS PRECEDENT AND SUB SEQUENT-continued. with the condition; and in such a case, if the condition were subsequent, the happening of the like event would discharge the condition in toto, inasmuch as the literal performance was become impossible. See 1 Wh. Rop. Leg. 803. (b.) Conditions precedent to the vesting of a right of action, also, conditions subsequent divesting the same. The right of action is not complete without the previous performance, or else the remission, of all conditions precedent (if any) to the obligation attaching to the defendant; and therefore it is necessary to aver in the declaration a performance of all such conditions, or else a sufficient excuse for the non-performance thereof (Grafton v. Eastern Counties Ry. Co., 8 Exch. 699). By the C. L. P. Act 1852, s. 57, it is made lawful for the plaintiff or defendant in any action to aver performance of conditions precedent generally; but this enactment does not relieve him from the necessity of averring specifically any excuse for a non-performance thereof, and in this specific averment both the conditions excused and the excuses of performance must be averred with particularity (London Dock Co. v. Sinnott, 8 E. & B. 347); but although the discharge of an obligation under seal can only be effected by a deed under seal, the discharge need not be so averred in the declaration (Thames Haven Dock Co. v. Brymer, 5 Exch. 696). A general averment of readiness and willingness to perform all conditions precedent is not sufficient in the case of a condition precedent which requires either performance or an excuse from performance (Roberts v. Brett, 6 C. B. (N.S.) 611). But where the acts to be done on the parts of the plaintiff and defendant are concurrent, the party who sues the other for non-performance of his part, need only aver a willingness and readiness to perform Morton v. Lamb, 7 T. R. 125); and the rule is the same with respect to agreements under seal (Glazebrook v. Woodrow, 8 T. R. 366). And when the declaration sufficiently shews that the defendant has absolutely incapacitated himself from performing his part of the contract it is not necessary to aver either the performance of conditions precedent, or a readiness and willingness to perform the same (Hochster v. De la Tour, 2 E. & B. 678). Bankruptcy has been decided to be such an incapacitation in the case of a contract for the sale of goods to be paid for by instalments (In re Edwards, Ex parte Chalmers, 21 W. R. 138), confirmed on appeal to the Lords Justices in Chancery. CONDITIONS PRECEDENT AND SUB SEQUENT-continued. Conditions precedent or subsequent may be void conditions. There is, however, a very great distinction between real property on the one hand and personal property on the other, with reference to the effect of such conditions being void; for real property is governed entirely by the Common Law, whereas personal property is largely subject to rules derived from the Roman Civil Law. Thus, firstly, with reference to real property, if a condition in restraint of marriage is general and therefore void, then, (a.) If the condition is precedent, no estate or interest will arise, because the estate was only to arise upon the fulfilment of the condition, which is impossible, and the Common Law will not, to the prejudice of the heir, dispense with the fulfilment of the condition; but (b.) If the condition is subsequent, the estate to which it is annexed will become freed from the condition and be absolute. Secondly, with reference to personal estate, if a condition in restraint of marriage is general and therefore void, then,(a.) If the condition is precedent, the bequest will take effect as if no condition had been imposed; and (b.) If the condition is subsequent the prior bequest becomes absolute. And by the rules of the Roman Civil Law, and the analogous rules of the English Law derived therefrom, restraints on the freedom of marriage are so odious, that (a.) If the condition is subsequent, expressly or impliedly providing for the cesser of the interest in the event of marriage, then, even although the restraint is partial only, (aa.) If there is no bequest over in the event of marriage, the prior bequest is absolute; but (bb.) If there is a bequest over in the event of marriage, the prior bequest becomes divested in the event of marriage, and the property passes to the second legatee. On the other hand, (b.) If the condition is precedent, then, even although the restraint is partial only, (aa.) If there is no bequest over in the event of marriage, the legacy is forfeited (Young v. Furze, 8 De G. M. & G. 756; CONDITIONS PRECEDENT AND SUB SEQUENT-continued. sed dubitatur, see 2 Jarm. Wills, 2nd ed. 37); and (bb.) If there is a bequest over in the event of marriage, the prior legacy is forfeited, and passes over to the second. CONDITIONS REPUGNANT. It is a well established rule of Law, that conditions or restraints inconsistent with, or repugnant to, the estate or interest to which they are annexed, are absolutely void. Numerous illustrations of the rule are furnished in the reported decisions. Thus (1.) The power of alienation being an incident inseparable from an estate in fee simple, it follows that any condition against alienation annexed to a conveyance or devise to any one in fee simple is absolutely void, whether the condition be general, i.e., forbidding alienation altogether (Co. Litt. 206 b, 223 a), or be particular, i.e., forbidding alienation in certain specified modes, e.g., by mortgage; and it makes no difference if there be a forfeiture or executory devise over in case of an attempt at alienation (Ware v. Cann, 10 B. & C. 433). The rule is the same, in the case of a gift in fee tail with a condition annexed to it not to suffer a common recovery or fine, or execute any other disentailing assurance (Piers v. Winn, 1 Vent. 321). Also, in Bradley v. Peixoto (3 Ves. 324), in the case of a bequest to A. for life, and at his decease to his executors and administrators, it was held that A. took an absolute interest in the legacy, and that a condition restraining him from disposing of the principal of the legacy, followed by a gift over in case he should attempt to do so, was inconsistent with the previous absolute bequest, and was therefore altogether void. Again (2.) In the case of a devise in fee, with a condition that no wife should have dower or husband curtesy out of the estate devised, the condition would be void for repugnancy. Again (3.) In the case of a feoffment in fee, with a condition excluding females from ever taking the inheritance, the condition would be void for repugnancy. Again (4.) In the case of a gift in fee to A., with a condition that failing disposition thereof by A. in his lifetime (Ross v. Ross, 1 J. & W. 154), or so far as such disposition should not extend (Watkins v. Williams, 3 Mac. & G. 622), the undisposed of principal should devolve in a certain specified way, the condition was held void for repugnancy, it being an inconsistent thing to separate the devolution of property from the property itself. |