BURIALS. Burial in the parish churchyard is a Common Law right inherent in the parishioners, only the mode of burial being of ecclesiastical cognisance; and under the stat. 4 Geo. 4, c. 52, the remains of persons against whom a finding of felo de se is had, are to be privately interred in the churchyard of the parish, but no Christian rites of burial are to be performed over them. All burials require to be registered, 27 & 28 Vict. c. 97, extending the Act 6 & 7 Will. 4, c. 86. Under the stat. 20 & 21 Vict. c. 81, provision is made for the constitution of a burial board in every parish; and where two parishes, each maintaining its own poor, are united together for ecclesiastical purposes, a burial board for the whole district appointed by the vote of the vestry, or meeting in the nature of a vestry, is properly constituted (18 & 19 Vict. c. 118). No burial fee is due at Common Law, but it may be due by custom (Andrews v. Cawthorn, Willes, 536), or (as is the usual case) in virtue of particular statutes. See also title BIRTHS. BYE-LAWS. Private laws or statutes made for the government of any corporation, which are binding upon themselves, unless contrary to the laws of the land, in which latter case they are void. By the stat. 5 & 6 Will. 4, c. 76, s. 1, all laws, statutes, and usages inconsistent with that Act are thereby annulled and repealed in regard to municipal corporations. C. CALLING THE PLAINTIFF. It is usual for a plaintiff, when he or his counsel perceives that he has not given evidence sufficient to maintain his issue, to be voluntarily nonsuited, or to withdraw himself, whereupon the crier is ordered to call the plaintiff; and if neither he nor any body for him appears, he is nonsuited, the jurors are discharged, the action is at an end, and the defendant recovers his costs. The phrase is synonymous with nonsuiting the plaintiff. See the phrase used in Car. & P. 351; 1 Car. & Marsh. 363. See also title NON-SUIT. CALLS: See title COMPANIES. CAMPBELL'S (LORD) ACT—continued. if death had not ensued, would at Common Law have entitled the injured person to recover damages in respect thereof. The action is for the benefit of the wife, husband, parent, or child of the deceased person, and may be instituted by his or her executor or administrator; but in case the executor or administrator does not, within six months of the death, institute the necessary action, then any of the persons beneficially interested, whether legally, or even morally only, in the result of the action, may institute the same. Under the 31 & 32 Vict. c. 119, s. 5, the Board of Trade may appoint an arbitrator in the matter. The damages recoverable are strictly compensatory, and nothing is recoverable as a solatium. CANALS. Are in general the property of companies, and the shares in them are pure personalty (Edwards v. Hall, 6 De G. M. & G. 74). By the stat. 8 & 9 Vict. c. 42, canal companies were enabled to become carriers on their canals, or to lease the same, or to take leases of other canals; and by the subsequent Act, 17 & 18 Vict. c. 31, the traffic and tolls over canals were regulated. It seems that, subject to the payment of tolls and the rules as to traffic, the public have a right of using the canal (Case v. Midland Ry. Co. 5 Jur. (N. S.) 1017); and that a canal company cannot grant an exclusive right to let boats for hire over their water, so as to give the grantee a right to sue a third party for the infringement of his right. Hill v. Tupper, 9 Jur. (N.S.) 725. CANCELLATION. This means the rescission of any contract or instrument, whether negotiable or not. There can be no cancellation of course without the intention of doing so (De Bernardy v. Harding, 8 Exch. 822). Bonds and deeds are cancelled by tearing off the seals; but this cancellation does not extend to divesting any estate or interest which has already vested under the deed. Ward v. Lumley, 29 L. J. (Ex.) 322. CANON LAW. Is a body of Roman Ecclesiastical Law compiled from the opinions of the ancient Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the Holy See. It was first digested in 1151 by Gratian into the Decretum Gratiani, or Concordia Discordantium Canonum; subsequently added to and continued by, or at the request of Gregory IX. in 1230, in the Decretalia Gregorii Noni; subsequently still further added to by Boniface VIII., in 1298, in the Sextus Decretalium; afterwards by Clement V., in 1317, in the Clementine Constitutions; and completed by John XXII. CANON LAW-continued. In in the Extravagantes, i.e., Riders. addition to the Canon Law properly so called, there exists also a large compilation of Legatine and Provincial Constitutions, which are roughly considered as forming part of the Canon Law. Upon the Reformation of Religion in England in the reign of Henry VIII., the authority of the Pope having been destroyed, all those canons which derived their force from that authority, of necessity ceased to have any force or efficacy; but by the stat. 25 Henry 8, c. 19, which was afterwards confirmed by the stat. 1 Eliz. c. 1, such of the then existing canons as were not repugnant to law or morality, or to the King's prerogative, were to continue in force until new canons were devised, which has never yet been done. Upon the construction of this statute it has been decided in Caudrey's Case (5 Rep. 1, 33 Eliz.), that not only the clergy but also the laity were bound by the then existing canons; and in Middleton v. Croft (2 Atk. 669), that the Canons of 1603 (and generally all canons subsequently made), never having been confirmed in Parliament, do not proprio vigore bind the laity, but the clergy only. CANONS OF DESCENT: See title DESCENTS. CAPIAS. Under the Imprisonment for Debt Act, 1869, there cannot be any writ of capias on bailable process. But before that Act, and under the 1 & 2 Vict. c. 110, the writ of capias might have issued after commencement of an action (although not as a means of commencing it), by leave of the judge, in cases where the cause of action amounted to £20, and the defendant was threatening to quit England. See also following titles. CAPIAS AD AUDIENDUM JUDICIUM. In case a defendant be found guilty of a misdemeanour (the trial of which may, and usually does, happen in his absence), a writ so called is awarded and issued to bring him to receive his judgment. CAPIAS AD SATISFACIENDUM (in practice frequently called shortly a Ca. Sa.). A writ of execution which a plaintiff takes out after having recovered judg ment against the defendant; it is directed to the sheriff, and commands him to take the defendant and safely keep him, in order that he may have his body at Westminster on a day mentioned in the writ to make the plaintiff satisfaction for his demand. See also title EXECUTION. CAPIAS IN WITHERNAM. A writ which lies where a distress taken is driven out of the county, so that the sheriff can CAPIAS IN WITHERNAM-continued. not make deliverance in replevin, commanding the sheriff to take as many beasts of the distrainer, &c. See also titles RETORNO HABENDO; CAPIAS UTLAGATUM: See title OUTLAWRY. CAPITA (DISTRIBUTION PER). In the distribution of the personal estate of a person dying intestate, the claimants, or the persons who, by law, are entitled to such personal estate, are said to take per capita when they claim in their own rights as in equal degree of kindred, in contradistinction to claiming by right of representation, or per stirpes, as it is termed. As if the next of kin be the intestate's three brothers, A., B., and C., here his effects are divided into three equal portions and distributed per capita, one to each; but if A. (one of these brothers) had been dead and had left three children, and B. (another of these brothers) had been dead and had left two; then the distribution would have been by representation, or per stirpes, as it is termed, and one-third of the property would have gone to A.'s three children, another third to B.'s two children, and the remaining third to C., the surviving brother. CAPITAL. The punishment of death is frequently termed capital punishment; and those offences are called capital offences for which death is the penalty allotted by law. The use of the term may probably have arisen from the decapitation which, in former times was a common mode of executing the sentence of death, and which is prescribed in some of the statutes against traitors even now remaining in force. The extreme sentence of the law, however, has for many years been carried into effect against all offenders by hanging them by the neck. The offences which are still capital offences have, by the humane spirit of modern legislation, been recently much diminished, and latterly only included high treason, murder, rape, and unnatural offences, setting fire to any king's ship or stores, the causing injury to life with intent to commit murder, burglary accompanied with an attempt at murder, robbery accompanied with stabbing or wounding, setting fire to a dwelling-house any person being therein, setting fire to or otherwise destroying ships with intent to murder any person, exhibiting false lights with intent to bring ships into danger, piracy accompanied by stabbing, and riotous destruction of buildings. Stew. Bl. 128, n. (k). But at the present day, the only capital offences punishable with death are treason and murder, all other offences formerly capital being now CAPITAL continued. punishable with penal servitude for life or years, or some term of imprisonment. CAPTION (captio). This word has several significations. When used with reference to an indictment, it signifies the style or preamble or commencement of the indictment; when used with reference to a commission it signifies the certificate to which the commissioners' names are subscribed, declaring when and where it was executed. The act of arresting a man is also termed a caption. Burn's Just. tit. Indictment; Cunningham. CAPUT BARONIÆ. The castle or chief seat of a nobleman, which, if there be no son, must not be divided amongst the daughters as in the case of lands, but descends to the eldest daughter. Cowel. CARNALLY KNOWING: See titles ABDUCTION; BUGGERY; RAPE; SODOMY. CARRIER. A common carrier is one who undertakes to transport from place to place for hire the goods of such persons as think fit to employ him (Palmer v. Grand Junction Ry. Co., 4 M. & W. 749). Such is a proprietor of waggons, barges, lighters, merchant ships, or other instruments for the public conveyance of goods (1 Smith's L. C. in notes to Coggs v. Bernard, 101). A person who conveys passengers only is not a common carrier (Aston v. Beaven, 2 Esp. 533; Christie v. Griggs, 2 Camp. 79). The liability of carriers is limited by 11 Geo. 4 & 1 Will. 4, c. 68, provided they have put up notices as required by the Act, and such notices have come to the knowledge of their customer. Kerr v. Willan, 6 M. & S. 150. See also title BAILMENT. CARRYING COSTS. A verdict is said to carry costs when the party for whom the verdict is given becomes entitled to the payment of his costs as incident to such verdict. Where the damages given by a verdict are under forty shillings, the party obtaining such verdict is usually not entitled to his costs, and such a verdict is therefore said not to carry costs; but the judge may certify for costs. CARTA DE FORESTA. A charter of the forest (confirmed in Parliament, 9 Hen. 3), by which many forests unlawfully made, or at least any precincts added by unlawful encroachments. were disafforested. 3 Hallam's Mid. Ag. 222; Reeves, 254. CASE, SPECIAL. See title SPECIAL CASE. CASH NOTE. Is simply a bank-note of a provincial bank or of the Bank of England. It is considered as cash for all purposes, a Bank of England note being, since CASH NOTE-continued. 3 & 4 Will. 4, c, 98, s. 6, a legal tender even for all sums above £5, excepting of course at the Bank of England itself or its branch banks. CASSETUR BREVE. A judgment is so termed because it commands the plaintiff's writ to be quashed. An entry of a cassetur breve is usually made by the plaintiff in an action after the defendant has pleaded a plea in abatement which the plaintiff is unable to answer, and therefore wishes his informal writ to be quashed, in order that he may sue out a better. See Tidd's Forms; 3 Chit. Plead. 1063, 6th ed. CASU CONSIMILI, A writ of entry granted where a tenant by the curtesy or tenant for life aliens, in fee or in tail, or for another's life. It is brought by the person entitled to the reversion against the party to whom such tenant has so aliened to his prejudice. It derives its name from the circumstance of the clerks in Chancery having by common consent framed it after the likeness of a writ termed casu proviso, in pursuance of the authority given them by the statute, 13 Edw. 1, and which also empowers them to frame new forms of writs (as much like the former as possible) whenever any new case arises in Chancery resembling a previous one, yet not adapted to any of the writs then in existence. Les Termes de la Ley. CASUAL EJECTOR. The nominal defendant, Richard Roe, in an action of ejectment is so called, because by a legal fiction he is supposed casually, or by accident, to come upon the land or premises and turn out the lawful possessors. See also title EJECTMENT. CATTLE. Selling diseased cattle is a misdemeanour, if they are intended to be forthwith slaughtered for meat; and selling diseased cattle to a cattle-rearer, with knowledge of the contagious character of the disease is a tort, for which the purchaser may recover full damages from the vendor (Mullet v. Mason, L. R. 1 C. P. 559). There are also the following Acts regulating the treatment of cattle afflicted with contagious diseases:-29 & 30 Vict. cc. 2, 5, 15; 30 & 31 Vict. cc. 35, 125; 32 & 33 Vict. c. 70. CAUTIONE ADMITTENDA. A writ which lies against a bishop for holding an excommunicated person in prison for his contempt, notwithstanding his having offered sufficient pledges to obey the orders of the holy church for the future. Cowel. CAUTIONNEMENT. In French law is the becoming surety in English law. See title SURETYSHIP. CAVEAT. A process formerly used in the Spiritual Court and now used in the Court of Probate, to prevent or stay the proving of a will, or the granting of administration. When a caveat is entered against proving a will, or granting administration, a suit usually follows to determine either the validity of the testament, or who has a right to administer. This claim or obstruction by the adverse party is an injury to the party entitled, and as such is remedied by the sentence of the Court of Probate either by establishing the will or granting the administration. A caveat may also be lodged in the Court of Chancery against inrolling a decree which it is intended to appeal to the Lords Justices in Full Court, inasmuch as after inrolment the only appeal is to the House of Lords. But since the Judicature Act, 1873, this distinction is probably of less importance. CAVEAT EMPTOR (let the buyer beware). A maxim of law applicable to the sale of goods and chattels, under or according to which a vendor is not bound to answer for the goodness of the wares he sells, unless he expressly warrants them to be sound and good, or unless he knows them to be otherwise, and uses any art to disguise them; and this is so, although the price is such as is usually given for a sound commodity. Every affirmation, however, at the time of sale, is a warranty, if it appears to have been so intended. CEMETERIES: See BURIALS. CENTRAL CRIMINAL COURT. This Court was constituted by the Acts 4 & 5 Will. 4, c. 36, and 19 & 20 Vict. c. 16, for the trial of offences committed in the Metropolis and certain parts of Essex, Kent, and Sussex adjoining thereto, and of such other offences as the Court of Queen's Bench in term, or a judge thereof in vacation, may direct to be removed thither, although committed out of the proper jurisdiction of the Court. CEPI CORPUS. When a writ of capias was directed to the sheriff to execute it, he was commanded to return it within a certain time, together with the manner in which he had executed it. If the sheriff had taken the defendant, and had him in custody, he returned the writ, together with an indorsement on the back stating that he had taken him, which was technically called a return of Cepi Corpus. CERTAINTY, IN PLEADING. The word is used in pleading in the two different senses of distinctness and particularity. When, in pleading, it is said that the issue must be certain, it means that it must be particular or specific, as opposed to undue CERTIFICATE, TRIAL BY. This is a mode of trial now little in use; it is resorted to in cases where the fact in issue lies out of the cognizance of the Court, and the judges, in order to determine the question, are obliged to rely upon the solemn averment or information of persons in such a station as affords them the clearest and most competent knowledge of the truth. Thus, when a custom of the City of London is in issue, such custom is tried by the certificate of the mayor and aldermen, certified by the mouth of their recorder; so, in the action of dower, when the tenant pleads in bar that the demandant was never accoupled to her alleged husband in lawful matrimony, and issue is joined upon this, the Court awarded that it should be tried by the diocesan of the place where the parish church in which the marriage was alleged to have been had was situated, and that the result should be certified to them by the ordinary at a given day. Steph. Pl. 112, 113; Co. Litt. 74. CERTIORARI. An original writ, issuing sometimes out of the Court of King's Bench, and sometimes out of Chancery. It is usually resorted to shortly before the trial, to certify and remove any matter or cause, with all the proceedings thereon, from some inferior Court into the Court of King's Bench, when it is surmised that a partial or insufficient trial will probably be had in the Court below (4 Vin. Abr. 329). It lies either for the verification of errors, or for the removal of plaints in replevin, or (most generally) for the removal of criminal proceedings. CESSAT EXECUTIO. The suspending or stopping of execution. If in an action of trespass against two persons, judgment be given against one, and the plaintiff takes out execution against him, the writ will abate as to the other, because there must be cessat executio until it is tried against the other defendant. Toml. CESSAVIT. A writ that formerly lay in various cases. It was generally sued out against a person for having neglected for two years to perform such service, or to pay such rent, as he was bound to by his tenure, and at the same time had not upon his premises sufficient goods or cattle to be distrained (Cowel). It also lay where a religious house had lands given to it on condition of performing some certain spiritual service, as reading prayers, giving alms, and which service it had neglected; and in either of the above cases if the cesser or neglect had continued for two years, the CESSAVIT-continued. lord or donor and his heirs had a writ of cessavit to recover the land itself, eo quod tenens in faciendis servitiis per biennium jam cessavit. Somewhat similar to the effect of this writ is the provision in the modern Acts regulating gifts of lands for popular education and amusement, that when the same lands cease to be so used they shall revert to the donor; in order to decide the fact of the cesser of their appointed use, a writ of summons in cessavit, or something analogous thereto, would, presumeably, have to issue. CESSION. Ceding or yielding up. By stat. 21 Hen. 8, c. 73, if any one having a benefice of £8 per annum or upwards, according to the then present valuation in the king's books, accept any other, the first shall be adjudged void unless he obtains a dispensation, which no one is entitled to have but the chaplains of the king and others therein mentioned, the brethren and sons of lords and knights, the doctors and batchelors of divinity and law admitted by the universities of this realm; and a vacancy thus made, for want of a dispensation is called a cession. CESSION DES BIENS. This in French Law is the surrender which a debtor makes of all his goods to his creditors, when he finds himself in insolvent circumstances. It is of two kinds, either voluntary or compulsory (judiciaire) corresponding very nearly to liquidation by arrangement and bankruptcy in English Law. CESTUI QUE TRUST. He for whose use or benefit another is invested or seised of lands or tenements; or in other words, he who is the real, substantial, and beneficial owner of lands which are held in trust. See title TRUSTS. CESTUI QUE USE. He for whose use lands or tenements are held by another. See title USES. CESTUI QUE VIE. He for whose life lands or tenements are granted. Thus, if A. grants lands to B. during the life of C., here C. is termed the cestui que vie. CHAIRMAN OF COMMITTEES OF THE WHOLE HOUSE. At the commencement of every new Parliament, each of the two Houses respectively selects from its own body a member to preside over its proceedings whilst the House is in committee. The officer so appointed is called "The Chairman of Committees of the whole Honse," and exercises the same authority in a committee of the whole House as does the Speaker on ordinary occasions. May's Parl. Pr. CHALLENGE. An exception taken either against persons or against things,(1.) Against persons, as jurors, either one or more of them; (2.) Against things, as a declaration, &c. There are two kinds of challenge of jurors-either (1.) to the array, by which is meant the whole jury as it stands arraigned in the panel (see title PANEL); or (2.) to the polls, by which is meant one or more of the several particular persons or heads in the array. A challenge to the array is at once an exception to the whole panel in which the jury are arrayed; and it may be made upon account of partiality, or some default in the sheriff' or his under officer, who arrayed the panel; as where the panel was arrayed at the nomination or under the direction of either the plaintiff or defendant in the cause, &c., this would be a good ground for a challenge to the array. Challenges to the polls are exceptions to particular jurors; and seem to answer to the recusatio judicis in the Civil and Canon Laws. Challenges to the polls of the jury (who are judges of fact) are by Sir Edward Coke reduced to four heads, viz., propter honoris respectum; propter defectum; proper affectum; and propter delictum. See also Smith's Action at Law, 145, 10th ed. CHALLENGE TO FIGHT. Is an indictable offence, punishable with fine or imprisonment, or both. It has been decided that no words of provocation however aggravating can justify it. R. v. Rice, 3 East, 581. CHAMBERS. Both at Common Law and in Chancery a very large amount of business is transacted in Chambers by the judges, and their subordinate officers, whether masters (as they are called at Common Law), or chief clerks (as they are called in Chancery). The jurisdiction of the masters at chambers is defined by the 30 & 31 Vict. c. 68, and the rules made in pursuance thereof, as follows:-All such business as by virtue of any statute or custom, or by the rules or practice of the Courts, or any of them respectively, were at the time of the passing of the said Act, or now are, done, transacted, or exercised by any judge of the said Courts sitting at chambers, except in respect of matters relating to the liberty of the subject, and except (unless by consent of the parties), in respect of the following proceedings and matters, that is to say, (1.) All matters relating to criminal proceedings; (2.) The removal of causes from the inferior Courts, other than the removal of judgments for the purpose of execution; (3.) Prohibitions and injunctions; |