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greater indulgence in their natural condition than when wrought up for the convenience of the enemy's immediate use. Iron unwrought, is therefore treated with indulgence, though anchors and other instruments fabricated out of it, are directly contraband. I Rob. Rep. 189. See Vattel, b. 3, c. 7; Chitty's L. of Nat. 120; Marsh. Ins. 76; 2 Bro. Civ. Law, 311; 1 Kent, Com. 135; 3 lb. 215.
Contraband of war, is the act by which, in times of war, a neutral vessel introduces, or attempts to introduce into the territory of one of the belligerent parties, arms, ammunition or other effects intended for, or which may serve hostile operations. Merlin Report, h. t.; 1 Kent, Com. 135; Mann. Comm. B. 3, c. 7.
CONTRACT. This term, in its more extensive sense, includes every description of agreement or obligation, whereby one party becomes bound to another to pay a sum of money, or perform or omit to do a certain act. In its more confined sense, it is an agreement between two or more persons, concerning something to be done, whereby both parties are bound to each other, or one is bound to the other. 1 Pow. Contr. 6; Civ. Code of Lo. art. 1754; Code Civ. 1101 ; Poth. Oblig. pt. i. c. 1, s. 1, § 1 ; Blackstone, (2 Comm. 442,) defines it to be an agreement, upon a sufficient consideration, to do or not to do a particular thing. A contract has also been defined to be a compact between two or more persons. 6 Cranch, R. 136.
Contracts are divided into express or implied. An express contract, is one where the terms of the agreement are openly uttered and avowed at the time of making, as to pay a stated price for certain goods. 2 Bl. Com. 443. Express contracts are of three sorts; 1. By parol, or in writing, as contradistinguished from specialties.
2. By specialty or under seal. 3. Of record.
1. A parol contract is defined to be a bargain or voluntary agreement made, either verbally, or in writing not under seal, upon a good consideration, between two or more persons capable of contracting, to do a lawful act, or omit to do any thing, the performance whereof is not enjoined by law. 1 Com. Contr. 2; Chit. Contr. 2. From this definition it appears, that to constitute a sufficient parol agreement, there must be, 1st. The reciprocal or mutual assent of two or more persons competent to contract. Every agreement ought to be so certain and complete, that each party may have an action upon it; and the agreement would be incomplete if either party withheld his assent to any of its terms. Peake's R. 227; 3 T. R. 653; I B. & A. 631; 1 Pick. R. 278. The agreement must, in general, be obligatory on both parties, or it binds neither. To this rule there are, however, same exceptions, as in the case of an infant's contract. He may always sue, though he cannot be sued, on his contract. Stra. 937. See other instances; 6 East, 307; 3 Taunt. 169; 5 Taunt. 788; 3 B. &C. 232. 2dly. There must be a good and valid consideration, motive or inducement to make the promise, upon which a party is charged, for this is of the very essence of a contract not under seal, and must exist, although the contract be reduced to writing. 7 T. R. 350, note (a); 2 Bl. Com. 444. See this Diet. Consideration; Fonb. Tr. Eq. 335, n. (a); Chit. Bills, 68. 3dly. There must be a thing to be done, which is not forbidden; or a thing to be omitted, the performance of which is not enjoined by law. A fraudulent or immoral contract, or one contrary to public policy is void. Chit. Contr. 215, 217, 222; and it is also void if contrary to a statute. Ib. 228 to 250; 1 Binn. 118; 4 Dall. 298 ; 4 Yeates, 24, 84; 6 Binn. 321; 4 Serg. & Rawle, 159; 4 Dall. 269; 1 Binn. 110; 2 Browne's R. 48. As to contracts which are void for want of a compliance with the statutes of Frauds, see Frauds, Statute of.
2. The second kind of express contracts, are those which are made under seal, or specialties, as deeds, bonds, and the like; they are not merely written, but delivered over by the party bound. The solemnity and deliberation with which, on account of the ceremonies to be observed, a deed or bond is presumed to be entered into, attach to it an importance and character which do not belong to a simple contract. In the case of specialty, no consideration is necessary to give it validity, even in a court of equity. Plowd. 308; 7 T. R. 477; 4 B. & A. 652; 3 T. R. 433; 3 Bingh. Ill, 112; 1 Fonb. Eq. 342, note.
3. The highest kind of express contracts, are those of record, such as judgments, recognizances of bail, and in England, statutes merchant and staple, and other securities of the same nature, entered into with the intervention of some public authority. 2 Bl. Com. 465. See Authentic Acts.
Implied contracts are such as reason and justice dictate, and which, therefore the law presumes every man undertakes to perform; as if a man employs another to do any business for him, or perform any work, the law implies that the former contracted or undertook to pay the latter as much as his labour deserved; see Quantum meruit; or if one takes up goods from a tradesman, without any agreement of price, the law concludes that he contracts to pay their value. 2 Bl. Com. 443. See Quantum valebant; Assumpsit. Com. Dig. Action upon the case upon assumpsit, A, 1 ; Ib. Agreement.
By the laws of Louisiana, when considered as to the obligation of the parties, contracts are either unilateral, or reciprocal. When the party to whom the engagement is made, makes no express agreement on his part, the contract is called unilateral, even in cases where the law attaches certain obligations to his acceptance; Civ. Code of Lo. art. 1758. A loan for use, and a loan of money are of this kind. Poth. Ob. P. 1, c. 1, s. 1, art. 2. A reciprocal contract is where the parties expressly enter into mutual engagements, such as sale, hire, and the like. Ib.
Contracts, considered in relation to their substance, are either commutative or independent, principal or accessory. Commutative contracts, are those in which what is done, given or promised by one party, is considered as equivalent to, or in consideration of what is done, given or promised by the other. Civ. Code of Lo. art. 1761. Independent contracts are those in which the mutual acts or promises have no relation to each other, either as equivalents or as considerations. Ib. art. 1762. A principal contract is one entered into by both parties, on their accounts, or in the several qualities they assume. An accessory contract is made for assuring the performance of a prior contract, either by the same parties or by others, such as suretyship, mortgage and pledges. Ib. Art. 1764. Poth. Obi. P. l,c. l,s. l.art. 2, n. 14.
Contracts, considered in relation to the motive for making them, are either gratuitous or onerous. To be gratuitous, the object of a contract must be to benefit the person with whom it is made, without any profit or advantage, received or promised as a consideration for it. It is not, however, the less gratuitous, if it proceed either from gratitude for a benefit before received, or from the hope of receiving one hereafter, although such benefit be of a pecuniary nature. lb. art. 1766. Any thing given or promised, as a consideration for the engagement or gift; any service, interest, or condition, imposed on what is given or promised, although unequal to it in value, makes a contract onerous in its nature. Ib. art. 1767.
Considered in relation to their effects, contracts are either certain or hazardous. A contract is certain, where the thing to be done is supposed to depend on the will of the party, or where in the usual course of events, it must happen in the manner stipulated. It is hazardous, when the performance of that which is one of its objects, depends on an uncertain event. Ib. ait. 1769.
Pothier, in his excellent treatise on Obligations. p. 1, c. 1, s. 1, art. 2, divides contracts under the five following heads:
1. Into reciprocal and unilateral.
2. Into consensual, or those which are formed by the mere consent of the parties, such as sale, hiring and mandate; and those in which it is necessary there should be something more than mere consent, such as loan of money, deposite or pledge, which from their nature require a delivery of the thing, (rei); whence they are called real contracts. See Real Contracts.
3. Into—1st, contracts of mutual interest, which are such as are entered into for the reciprocal interest and utility of each of the parties, as sales, exchange, partnership and the like; 2dly, contracts of beneficence, which are those by which only one of the contracting parties is benefitted, as loans, deposit and mandate; 3dly, mixed contracts, which are those by which one of the parties confers a benefit on the other, receiving something of inferior value
in return, such as a donation subject to a charge.
4. Into principal and accessory.
5. Into those which are subjected by the civil law to certain rules and forms, and those which are regulated by mere natural justice.
Sec generally as to contracts, Chitty on Contracts; Comyn on Contracts; Newland on Contracts; Com. Dig. titles Abatement, E 12, F 8; Admiralty, E 10, 11; Action upon the Case upon Assumpsit; Agreement; Bargain and Sale; Baron and Feme, Q; Condition; Dett, A 8, 9; Enfant, B 5; Idiot, D 1; Merchant, E 1; Pleader, 2 W 11, 43; Trade, D 3; War, B 2; Bac. Abr. tit. Agreement; Id. Assumpsit; Condition; Obligation; Vm. Abr. Condition; Contracts and Agreements; Covenants; Vendor, Vendee; Supp. to Ves. jr. vol. 2, p. 260, 295, 376, 441; Yelv. 47; 4 Ves. jr. 497, 671; Archb. Civ. PI. 22; Code Civ. L. 3, tit. 3 to 18; Pothier's Tr. of Obligations; Sugden on Vendors and Purchasers; Story's excellent treatise on Bailments; Jones on Bailments. Toullier,''Droit Civil Francais, tomes 6 et 7 ; Ham. Parties to Actions, Ch. 1; Chit. Pr. Index, h. t.; and the articles Agreement; Apportionment; Appropriation; Assent; Assignment; Assumpsit; Attestation; Bailment; Bargain and sale; Bidder; Bilateral contract; Bill of exchangeBuyer; Commodate; Commutative contract; Condition; Consensual contract; Conjunctive; Consummation; Construction; Contract of benevolence; Covenant; Debt; Deed; Delegation; Delivery; Discharge of a contract; Disjunctive; Equity of redemption; Exchange; Guaranty; Impairing the obligation of contracts; Insurance; Interested contracts; Item; Misrepresentation; Mortgage; Mixed contract; Negociorum gestor; Novation; Obligalion; Pactum constitute pecunia; Partners; Partnership; Pledge; Promise; Purchaser; Quasi contract; Representation; Sale; Seller; Settlement; Simple contract; Synallagmatic contract; Subrogation; Title; Unilateral contract.
CONTRACT OF BENEVOLENCE, civil law, is one which is made for the benefit of only one of the contracting parties; such as loan for use, deposit, and mandate. Poth. Obi. n. 12. See Contracts.
CONTRACTOR. One who enters into a contract; this term is usually applied to persons who undertake to do public work, or the work for a company or corporation on a large scale, at a certain fixed price, or to furnish goods to another at a fixed or ascertained price. 2 Pardess. n. 300. Vide 5 Whart. 366.
CONTRAFACTION, crim. law, counterfeiting, imitating. In the French law contrafaction (contrefacon) is the illegal reprinting of a book for which the author or his assignee has a copy-right to the prejudice of the latter. Merl. Repcrt. mot Contrefacon.
CONTRAVENTION. French law, is the act which violates the law, a treaty or an agreement which the party has made. The Penal Code, art. 1, denominates a contravention that infraction of the law which is punished by a fine which does not exceed fifteen francs, and an imprisonment not exceeding three days.
CONTREFACON, French law, Counterfeit. This is a bookseller's term, which signifies the offence of those who print or cause to be printed without lawful authority a book of which the author or his assigns have a copy-right. Merl. Rep. h. t.
CONTRIBUTION, civil law, is said of the partition by which the creditors of an insolvent debtor divide among themselves the proceeds of
his property, proportionably to the amount of their respective credits. Civ. Code of Lo. art. 2522, n. 10. It is a division pro rata. Med. Rep. h. t.
CONTRIBUTION, contracts. When two or more persons jointly owe a debt, and one is compelled to pay the whole of it, the others are bound to indemnify him for the payment of their shares, the indemnity is called a contribution. 1 Bibb, R. 562; 4 John. Ch. R. 545. When land is charged with the payment of a legacy, or an estate with the portion of a posthumous child, every part is bound to make contribution. 3 Munf. R. 20; 1 John. Ch. R. 425. Contribution takes place in another case, namely, when in order to save a ship or cargo, a part of the goods are cast overboard, the ship and cargo are liable to contribution in order to indemnify the owner of the goods lost, except his just proportion. No contribution can be claimed between joint wrongdoers. Bac. Ab. Assumpsit A. Vide 3 Com. Dig. 143; 8 Com. Dig. 373; 5 Vin. Ab. 561 ; 2 Supp. toVes. jr. 159, 343; 3 Ves. jr. 64; Wesk. Ins. 130. 10 S. & R. 75.
CONTROVER, obsolete. One who invents false news. 2 Inst. 227.
CONTROVERSY, is a dispute arising between two or more persons; it differs from case, which includes all suits criminal as well as civil; whereas a controversy is a civil and not a criminal proceeding. 2 Dall. R. 419, 431, 432; 1 Tuck. Bl. Com. App. 420,421; Story, Const. § 1668. By the constitution of the United States the judicial power shall extend to controversies, to which the United States shall be a party. Art. 2, 1. The meaning to be attached to the word controversy in the constitution, is that above given.
CONTUBERNIUM, civ. law. As among the Romans slaves had no civil state, their marriages although valid according to natural law, when contracted with the consent of their masters, and when there was no legal bar to them, yet such marriages were without civil effects, they having none except what arose from natural law : a marriage of this kind was called contubernium. It was so called whether both or only one of the parties was a slave. Poth. Contr. de Mariage, prem. part. c. 2, §3.
CONTUMACY, civil law, is the refusal or neglect of a party accused to appear and answer to a charge preferred against him in a court of justice. This word is derived from the Latin contumacia, disobedience. 1 Bro. Civ. Law, 455; Ayl. Parer. 196; Dig. 50, 17, 52; Code Nap. art. 22.
CONTUMAX, civ. law, one accused of a crime who refuses to appear and answer to the charge. An outlaw.
CONTUSION, med. jurisp. An injury or lesion, arising from the shock of a body with a large surface, which presents no loss of substance, and no apparent wound. If the skin be divided the injury takes the name of a contused wound. Vide 1 Ch. Pr. 38; 4 Carr. & P. 381,487,558, 565; 6 Carr. & P. 684; 2 Beck's Med. Jur. 178.
CONUSANCE, CLAIM OF, English law, is defined to be an intervention by a third person, demanding judicature in the cause against the plaintiff, who has chosen to commence his action out of claimant's court. 2 Wilson's R. 409. It is a question of jurisdiction between the two courts. Fortesc. R. 157; 5 Vin. Abr. 588; and not between the plaintiff and defendant, as in the case of plea to the jurisdiction, and therefore it must be demanded by the party entitled to conusance, or by his representative, and not by the
defendant or his attorney. Id. ibid. A plea to the jurisdiction must be pleaded in person, but a claim of conusance may be made by attorney. 1 Chit. PL 403. There are three sorts of conusance, 1. Tenere placita, which does not oust another court of its jurisdiction, but only creates a concurrent one. 2. Cognitio placitorum, when the plea is commenced in one court, of which conusance belongs to another. 3. A conusance of exclusive jurisdiction; as that no other court shall hold plea, dce. Hard. 509 ; Bac. Ab. Courts, D.
CONUSANT, one who knows; as if a party knowing of an agreement in which he has an interest, he makes no objection to it, he is said to be conusant. Co. Litt. 157.
CONUSOR. See Cognisor.
CONVENTION, contract, civil law, is a general term which comprehends all kinds of contracts, treaties, pacts, or agreements. It is , defined to be the consent of two or more persons to form with each other an engagement, or to dissolve or change one which they had previously formed. Domat, Lois. Civ. 1. 1, t. 1, s. 1; Dig. lib. 2, t. 14, 1. 1; lib. l,t. 1, 1. 1, 4 and 5.
CONVENTION, legislation— This term is applied to a meeting of the delegates elected by the people for other purposes than usual legislation. It is mostly used to denote an assembly to make or amend the constitution of a state, but it sometimes indicates an assembly of the delegates of the people to nominate officers to be supported at an election.
CONVERSION, torts, is the turning or applying the property of another to one's own use. When a party takes away or wrongfully assumes the right to goods which belong to another, it will in general be sufficient evidence of a conversion; but when the original taking was