Page images

foreign residents owing a temporary allegiance to the state. Wicquefort, De l'Ambassadeur, liv. 1, § 5; Bynk. cap. 10; Martens, Droit des Gens, liv. 4, c. 3, § 148. In the United States the act of September 24th, 1789, s. 13, gives to the supreme court original but not exclusive jurisdiction of all suits in which a consul or vice consul shall be a party. The ac* last cited, section 9, gives to the district courts of the United States jurisdiction exclusively of the courts of the several states of all suits against consuls or vice consuls except for offences, where whipping exceeding thirty stripes, a fine exceeding one hundred dollars, or a term of imprisonment exceeding six months is inflicted. For offences punishable beyond these penalties, the circuit has jurisdiction in the case of consuls. 5 S. & R. 545. See 1 Binn. 143; 2 Dall. 299; 2 N. & M. 217; 3 Pick. R. 80; 1 Green, R. 107; 17 Johns. 10; 6 Pet. R. 41 ; 7 Pet. R. 276; 6 Wend. 327. Fourthly. His functions may be suspended at any time by the government to which he is sent, and his exequatur revoked. In general a consul is not liable personally on a contract made in his official capacity on account of his government. 3 Dall. 384.

See, generally, Abbott on Ship. 210; 2Bro. Civ. Law, 503; Merl. Repert. h. L; Ayl. Pand. 160; Warden on Consuls; Marten on Consuls; Borel, de l'Origine et des fonctions des consuls; Rawle on the Const. 22 c', 223 ; Story on the Const. § J 654; Serg. Const. Law, 225; Azuni, Mar. Law, part. 1, c. 4, art. 8, §7.

CONSULTATION, practice, is a conference between the counsel or attorneys engaged on the same side of a cause, for the purpose of examining their case, and, ifpossible, removing the difficulties in their way. This should be had sufficiently early to

enable the counsel to obtain an amendment of the pleadings, or further evidence. At these consultations the exact course to be taken by the plaintiff in exhibiting his proofs should be adopted, in consultation by the plaintiff's counsel. In a consultation on a defendant's case, it is important to ascertain the statement of the defence, and the evidence which may be depended upon to support it, to arrange the exact course of defence, and to determine on the crossexamination of the plaintiff's witnesses; and above all whether or not evidence shall be given on the part of the defendant, or withheld so as to avoid a reply on the part of the plaintiff. The wishes of the client should in all cases be consulted. 'd Chit. Pr. 864.

CONSULTATION, Eng. law, is the name of a1 writ whereby a cause being formerly removed by prohibition out of an inferior court into some of the king's courts in Westminster, is returned thither again: for if the judges of the superior court, comparing the proceedings with the suggestion of the party, find the suggestion false or not proved, and that therefore the cause was wrongfully called from the inferior court, then, upon consultation and deliberation, they decree it to be returned, whereupon this writ issues. T. de la Lev.

CONSULTATION, French law. The opinion of counsel on a point of law submitted to them is so called. Diet. de Jur. h. t.

CONSUMMATION. The completion of a thing; as the consummation of marriage; (q. v.) the consummation of a contract, and the like. A contract is said to be consummated, when every thing to be done in relation to it, has been accomplished. It is frequently of great importance to know when a contract has been consummated in order to ascertain the rights of the parties, particularly in the contract of sale. Vide Delivery, where the subject is more fully examined. It is also sometimes of consequence to ascertain where the consummation of the contract has taken place, in order to decide by what law it is to be governed. It has been established as a rule, that when a contract is made by persons absent from each other, it is considered as consummated in, and is governed by the law of, the country where the final assent is given. If, therefore, Paul in New Orleans, order goods from Peter in London, the contract is governed by the laws of the latter place. 8 M. R. 135; Plowd. 343. Vide Conflict of Laws; Inception; Lex Loci contractus; Lex Fori; Offer.

CONSUMMATION OF MARRIAGE. The first time that the husband and wife cohabit together after the ceremony of marriage has been performed is thus called. The marriage when otherwise legal, is complete without this, for it is a maxim of law borrowed from the civil law, that consensus, non concubitus, facit nuptias. Co. Litt. 33; Dig. 50, 17, 30; 1 Black. Com. 434.

CONTAGIOUS DISORDERS, police, crim. law, are diseases which are capable of being transmitted by mediate or immediate contact. It is indictable at common law unlawfully and injuriously to expose persons infected with the small-pox or other contagious disease in the public streets where persons are passing, or near the habitations of others, to their great danger. 1 Russ. Cr. 114. Lord Hale seems to doubt whether if a person infected with the plague, should go abroad with intent to infect another, and another should be infected and die, it would not be murder; and he thinks it clear that though there should be no such intent, yet if another should be infected it would be a great misdemeanor. 1

Vol. I.—29.

PI. Cor. 422. Vide 4 M. & S. 73, 272; Dane's Ab. h. t.

CONTEMPT, crim. law, is a will- ful disregard or disobedience of a public authority. By the constitution of the United States, each house of congress may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member. The same prbvision is substantially contained in the constitutions of the several states. The power to make rules carries that of enforcing them, and to attach persons who violate them, and punish them for contempts. This power of punishing for contempts, is confined to punishment during the session of the legislature, and cannot extend beyond it; 6 Wheat. R. £04, 230, 231 ; and, it seems this power cannot be exerted beyond imprisonment.

Courts of justice have an inherent power to punish all persons for contempt of their rules and orders, for disobedience of their process, and for disturbing them in their proceedings. Bac. Ab. Courts and their jurisdiction in general (E); Rolle's Ab. 219; 8 Co. 38 b; 11 Co. 43 b. In some states, as in Pennsylvania, the power to punish for contempts is restricted to offences committed by the officers of the court, or in its presence, or in disobedience of its mandates, orders, or rules; but no one is guilty of a contempt for any publication made or act done out of court, which is not in violation of such lawful rules or orders, or disobedience of its process. Similar provisions limiting the power of the courts of the United States to punish for contempts, are incorporated in the act of March 2, 18:31. 4 Sharsw. cont. of Stor. L. U. S. 2256. When a person is in prison for a contempt, it has been decided in New York that he cannot be discharged by another judge, when brought before him on a habeas corpus; and, according to Chancellor Kent, 3 Comm. 27, it belongs exclusively to the court offended to judge of contempts, and what amounts to them; and no other court or judge can, or ought to undertake, in a collateral way, to question or review an adjudication of a contempt made by another competent jurisdiction. This may be considered as the established doctrine equally in England as in this country. 3 Wils. 188; 14 East, R. 1; 2 Bay, R. 182; 6 Wheat. R. 204; 7 Wheat. R. 38; 1 Brecse, R. 2fi6; 1 J. J. Marsh. 575; Charlt. R. 136; 1 Blackf. 166; 9 Johns. 395; 6 John. 337.

CONTENTIOUS JURISDICTION, eccles. law. In those cases where there is an action or judicial process, and it consists in hearing and determining the matter between party and party, it is said there is contentious jurisdiction, in contradistinction to voluntary jurisdiction which is exercised in matters that require no judicial proceeding, as in taking probate of wills, granting letters of administration, and the like.

CONTESTATIO LITIS, civil law, the joinder of issue in a cause. Code of Pr. of Lo. art. 357.

CONTINGENT. What may or may not happen; what depends upon a doubtful event; as, a contingent debt, which is a debt depending upon some uncertain event. 9 Ves. R. 110; Co. Bankr. Laws, 245; 7 Ves. R. 301; 1 Ves. & Bea. 176; 8 Ves. R. 334; 1 Rose, R. 523; 3 T. R. 539; 4 T. R. 570. A contingent legacy is one which is not vested. Will, on Executors, h. t. See Contingent Remainder; Contingent Use.

CONTINGENT REMAINDER, estates. When an estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event, by which no present or particular interest passes to the remainder-man,

so that the particular estate may chance to be determined and the remainder never take effect, the remainder is then contingent. Vide Remainder.

CONTINGENT USE, estates, is a use limited in a deed or conveyance of land which may or may not happen to vest, according to the contingency expressed in the limitation of such use. A contingent use is such as by possibility may happen in possession, reversion or remainder. 1 Rep. 121; Com. Dig. Uses,(K 6).

CONTINUAL CLAIM, English law. When the feoffee of land is prevented from taking possession by fear of menaces or bodily harm, he may make a claim to the land in the presence of the pares, and if this claim is regularly made once every year and a day, which is then called a continual claim, it preserves to the feoffee his rights, and is equal to a legal entry. 3 Bl. Com. 175; 2 Bl. Com. 320; 1 Chit. Pr. 278 (a) in note; Crabbe's Hist. E. L. 403.

CONTINUANCE, practice— The adjournment of a cause from one day to another is called a continuance, an entry of which is made upon the record. If these continuances are omitted, the cause is thereby discontinued, and the defendant is discharged sine die, without a day, for this term. By his appearance he has obeyed the command of the writ, and, unless he be adjourned over to a certain day, he is no longer bound to attend upon that summons. 3 Bl. Com. 316. Continuances may, however, be entered at any time, and if not entered, the want of them is aided or cured by the appearance of the parties; and as a discontinuance can never be objected to pendente placito, so after the judgment it is cu red by the statute of jeofails. Tidd's Pr. 628, 835. Before the declaration the continuance is by dies datus prece partium; after declaration and before issue joined, by imparlance, after issue joined and before verdict, by vice come non misit breve; and after verdict or demurrer by curia advisare vult. 1 Chit. PI. 481, n. (p); see Vin. Abr. 454; Bac. Abr. Pleas, &c, P; Bac. Abr. Trial, H; Com. Dig. Pleader, V. See as to the origin of continuances, Steph. PI. 31; 1 Ch. Pr. 778, 779.

CONTINUANDO, plead. The name of an averment sometimes contained in a declaration in trespass, that the injury or trespass has been continued. For example, if Paul turns up the ground of Peter and tramples upon his grass, for three days together, and Peter desires to recover damages, as well for the subsequent acts of treading down the grass and subverting the soil, as for the first, he must complain of such subsequent trespasses in his actions brought to compensate the former. This he may do by averring that Paul on such a day trampled upon the herbage and turned up the ground, "continuing the said trespasses for three days following." This averment seems to impart a continuation of the same identical act of trespass, it has, however, received, by continued usage, another interpretation, and is taken also to denote a repetition of the same kind of injury. When the trespass is not of the same kind, it cannot be averred in a continuando, for example, when the injury consists in killing and carrying away an animal, there remains nothing to which a similar injury may again be offered.

There is a difference between the continuando and the averment diversis diebus el temporibus, on divers days and times. In the former the injuries complained of, have been committed upon one and the same occasion; in the latter, the acts complained of, though of the same kind, arc distinct and unconnected. See Gould, Pl. ch. 2, § 86 et seq.; Ham.

N. P. 90, 91; Bac. A. Trespass, I, 2, n. 2.

CONTRA BONOS MORES— Against good morals. All contracts contra bonos mores, are illegal. These are reducible to several classes, namely, those which are, 1, incentive to crime. A claim cannot be sustained, therefore, on a bond for compounding a crime, as, for example, a prosecution for perjury, 2 Wils. R. 341, 447, or for procuring a pardon. A distinction has been made between a contract made as a reparation for an injury to the honour of a lady, and one which is to be the reward of future illicit cohabitation; the former is good and valid, and the latter is illegal. 3 Burr. 1568; 1 Bligh's R. 269.—2. Indecent or mischievous consideration. An obligation or engagement prejudical to the feelings of a third party; or offensive to decency or morality; or which has a tendency to mischievous or pernicious consequences is void. Cowp. 729; 4 Campb. R. 152; Rawle's R. 42; 1 B. & A. 683; 4 Esp. Cas. 97; 16 East, R. 150. Vide Wagers.—3. Gaming. The statutes against gaming render all contracts made for the purpose of gaming void. Vide Game- ing; Unlawful; Void.

CONTRA FORMAM STATUTI, contrary to the form of the statute.—

1. When one statute prohibits a thing and another gives the penalty, in an action for the penalty, the declaration should conclude contra formam statutonim. Plowd. 206; 2 East, R. 333; Esp. on Pen. Act. I11; 1 Gallis. R. 268. The same rule applies to informations and indictments. 2 Hale, P. C. 172; 2 Hawk. c. 25, § 117; Owen, 135.—

2. But where a statute refers to a former one, and adopts and continues the provisions of it, the declaration or indictment should conclude contra formam statuti, Hale, P. C. 172; 1 Lutw. 212.—3. Where a thing is prohibited by several statutes if one only gives the action, and the others are explanatory and restrictive, the conclusion should be contra formam Btatuti. Yelv. 116; Cro. Jac. 187; Noy, 125, S. C.; Rep. temp. Hard. 409; Andr. 115, S. C.; 2 Saund. 377.—4. When the act prohibited was not an offence or ground of action at common law, it is necessary in all cases, criminal and civil, to conclude against the form of the statute or statutes. 1 Saund. 135, c.; 2 East, 333; 1 Chit. PI. 358; 1 Saund. 249; 7 East, 516; 2 Mass. 116; 7 Mass. 9; 11 Mass. 280; 10 Mass. 36; 1 M'Cord, 121; 1 Gallis. 30.—5. But if the act prohibited by the statute is an offence or ground of action at common law, the indictment or action may be in the common law form, and the statute need not be noticed, even though it prescribe a form of prosecution or of action; the statute remedy is merely cumulative. 2 Inst. 200; 2 Burr. 803; 4 Burr. 2351; 3 Burr. 1418; 2 Wils. 146; 3 Mass. 515.—6. When a statute only inflicts a punishment on that which was an offence at common law, the offence prescribed may be inflicted, though the statute is not noticed in the indictment. 2 Binn. 332.—7. If an indictment for an offence at common law only, conclude "against the form of the statute in such case made and provided;" or "the form of the statute" generally, the conclusion will be rejected as surplusage, and the indictment maintained as at common law. 1 Saund. 135, n. 3.—8. But it will be otherwise if it conclude against the form of " the statute aforesaid," when a statute has been previously recited. 1 Chit. Cr. Law, 266, 289. See further, Com. Dig. Pleader, C. 76; 5 Vin. Abr. 552, 556; 1 Gallis. 26, 257; 9 Pick. 162; 5 Pick. V 8; 2 Yerg. 390; 1 Hawks, 192; 3 Conn. 1; 11 Mass. 280; 5 Greenl. 79.

CONTRA PACEM, pleadings. Against the peace. In actions of trespass, the words contra pacem should uniformly accompany the allegation of the injury; in some cases they are material to the foundation of the action. Trespass to lands in a foreign country cannot be sustained. 4 T. R. 503; 2 Bl. Rep. 1058. The conclusion of the declaration in trespass or ejectment, should be contra pacem, though these are now mere words of form and not traversable, and the omission of that allegation will be aided if not specially demurred to. 1 Chit. PI. 375, 6; vide Arch. Civ. PI. 169; 5 Vin. Ab. 557; Com. Dig. Action upon the case, C 4; Pleader, 3 M 8; Prohibition, F 7.

CONTRABAND, mar. law, in its most extensive sense means all commerce which is carried on contrary to the laws of the state. The term is usually applied to that commerce which is so carried on in time of war. Merlin, Repert. h. t. Commodities particularly useful in war are contraband, as arms, ammunition, horses, timber for ship building, and every kind of naval stores. When articles come into use as implements of war, which were before innocent, they may be declared to be contraband. The greatest difficulty to decide what is contraband seems to have occurred in the instance of provisions, which have not been held to be universally contraband, though Vattel admits that they become so on certain occasions, when there is an expectation of reducing an enemy by famine. In modern times one of the principal criteria adopted by the courts for the decision of the question, whether any particular cargo of provisions be confiscable as contraband, is to examine whether those provisions be in a rude or manufactured state; for all articles, in such examinations, are treated with

« PreviousContinue »