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tesy is due to the husband rather as father to the heir, than as husband to an heiress, conformable to the Roman law which gives to the father the usufruct of what the child succeeds to by the mother, Ersk. Pr. L. Scot. B. 2, t. 9, s. 30.
CURTESY, vide Estate by the curtesy.
CURTILAGE, estates, is the space situated within a common enclosure belonging to a dwellinghouse. Vide 2 Roll. Ab. 1, 1. 30; Com. Dig. Grant, (E 7), (E 9); Russ. & Ry. 360; lb. 334, 357; Ry. & Mood. 13; 2 Leach, 913; 2 Bos. & Pull. 508; 2 East, P. C. 494; Russ. & Ry. 170, 28^,322 ; 22 Eng. Com. Law R. 330; 1 Ch. Pr. 175; Shep. Touchs. 94.
CUSTODY, is the detainer of a person by virtue of a lawful authority. To be in custody is to be lawfully detained under arrest. Vide 14 Vin. Ab. 359; 3 Chit. Pr. 355. In another sense custody signifies having the care and possession of a thing; as, the chancellor is entitled to thecustody as the keeper of the seal.
CUSTOM. A usage which has acquired the force of law. A custom derives its force from the tacit consent of the legislature and the people. It follows, therefore, there can be no custom in relation to a matter regulated by law. 8 M. R. 309. Law cannot be established or abrogated except by the sovereign will, but this will may be express or implied and presumed; and whether it manifests itself by words or by a series of facts, is of little importance. When a custom is public, peaceable, uniform, general, continued, reasonable and certain, and has lasted "time whereof the memory of man runneth not to the contrary," it acquires the force of law. And when any doubts arise as to the meaning of a statute, the custom which has prevailed on the subject ought to have
weight in its construction, for the manner in which a law has always been executed is one of its modes of interpretation. Vide Bac. Ab. h. t.; 1 Bl. Com. 76; 2 Bl. Com. 31; 1 Lill. Reg. 516; 7 Vin. Ab. 164; Com. Dig. h. t.; Nelson's Ab. h. t.; the various Amer. Dig. h. t.; Ayl, Pand. 15, 16; Ayl. Parerg. [ 194 ]; Doct. PI. 201; 3 W. C. C. R. 150; 1 Gilp. 486; Pet. C. C. R. 230; 1 Edw. Ch. R. 147; 1 Gall. R. 443; 3 Watts, R. 178; 1 Rep. Const. Ct. 303, 308; 1 Caines, R. 45; 15 Mass. R. 433; 1 Hill, R. 270; Wright, R. 573; 1 N. & M. 176; 5 Binn. R, 287; 5 Ham. R. 436; 3 Conn. R. 9; 2 Pet. R. 148; 6 Pet. R. 715; 6 Porter, R. 123; 2 N. H. Rep. 93; 1 Hall, R. 612 ; 1 Hall & Gill, 239; 1 N. S. 192; 4 L. R. 160; 7 L. R. 529; lb. 215.
CUSTOM-HOUSE. A place appointed by law, in ports of entry, where importers of goods, wares and merchandise are bound to enter the same, in order to pay or secure the duties or customs due to the government.
CUSTOMS. This term is usually applied to those taxes, which are payable upon goods and merchandise imported or exported. Story, Const. § 949Bac. Ab. Smuggling.
CUSTOS ROTULORUM, Eng. law. The principal justice of the peace of a county, who is keeper of the records of the county. 1 Bl. Com, 349.
TO CUT, crim. law, is to wound with an instrument having a sharp edge. 1 Russ, on Cr, 597. Vide To Stab; Wound.
CY PRES, construction. These are old French words which signify as near as. In cases where a perpetuity is attempted in a will, the courts do not, if they can avoid it, construe the devise to be utterly void, but expound the will in such a manner as to carry the testator's
DAM. A construction of wood, I stone, or other materials made across a stream of water for the purpose of confining it; a mole. The owner of a stream, not navigable, may erect a dam across it, and employ the water in any reasonable manner, either for his use or pleasure, so as not to destroy or render useless, materially diminish, or affect the application of the water by the proprietors below on the stream. He must not shut the gates of his dams and detain the water unreasonably, or let it off in unusual quantities to the annoyance of his neighbours. 4 Dall. 211; 3 Caines,207; 13 Mass. 420; 3 Pick. 268; 2 N. H. Rep. 532; 17 John. 306; 3 John. Ch. Rep. 282; 3 Rawle, 256; 2 Conn. Rep. 584; 5 Pick. 199; 20 John. 90; 1 Pick. 180; 4 lb. 460; 2 Binn. 475; 14 Serg. & Rawle, 71; lb. 9; 13 John. 212; 1 M'Cord, 530; 3 N. H. Rep. 321; 1 Halst. R. 1; 3 Kent, Com. 354. When one side of the stream is owned by one person and the other by another, neither, without the consent of the other, can build a dam which extends beyond the thread of the river, without committing a trespass. Cro. Eliz. 269; 12 Mass. 211 ; An?, on W. C. 14, 104, 141; vide Lois des Bat. P. 1, c. 3, s. 1, a. 3; Poth. Traite du Contrat de Societe, second app. 236; Hill. Ab. Index, h. t.; 7
Cowen, R. 266; 2 Watts, R. 327; 3 Rawle, R. 90; 17 Mass. R. 289; 5 Pick. R. 175; 4 Mass. R. 401. Vide Inundation.
DAMAGE, tofts, the loss caused by one person to another, or his property, either with the design of injuring him, or with negligence and carelessness, or by inevitable accident. He who has caused the damage is bound to repair it; and, if he has done it maliciously, he may be compelled to pay beyond the actual loss. When damage occurs by accident without blame to any one, the loss is borne by the owner of the thing injured; as, if a horse run away with his rider, without any fault of the latter, and injure the property of another person, the injury is the loss of the owner of the thing. When the damage happens by the act of God, or inevitable accident, as by tempest, earthquake or other natural cause, the loss must be borne by the owner.' Vide Com. Dig. h. t.; Sayer on Damages. Pothier defines damage (dommages et interets) to be the loss which some one has sustained, and the gain which he has failed of making. Obi. n. 159.
DAMAGE FEASANT, torts. This is a corruption of the French words faisant dommage, and signifies doing damage. This term is usually applied to the injury which animals belonging to another do upon the owner's land, by feeding there, treading down his grass, corn, or other production of the earth. 3 Bl. Com. 6; Co. Litt. 142, 161; Com. Dig. Pleader, 3 M 26; vide Animals
DAMAGED GOODS, in the Ianguage of the customs, are goods subject to duties, which have received some injury either in the voyage home, or in the bonded ware-houses. See Abatement, mere. law.
DAMAGES, practice. The indemnity given by law, to be recovered from the wrong doer by a person who has sustained an injury, either in his person, property or relative rights, in consequence of the acts of another. Damages are given either for breaches of contracts or for tortious acts. Damages for breach of contract may be given, for example, for the non-performance of a written or verbal agreement; or of a covenant to do or not to do a particular thing. As to the measure of damages the general rule is, that the delinquent shall answer for all the injury which results from the immediate and direct breach of his agreement, but not from any remote consequences. In cases of eviction, on a covenant of seisin and warranty, the rule seems to be to allow the consideration money with interest' and costs. But in Massachusetts, on the covenant of warranty the measure of damages is the value of the land at the time of eviction. 4 Kent's Com. 462, 3, and the cases there cited. In estimating the measure of damages sustained in consequence of the acts of a common carrier, it frequently becomes a question whether the value of the goods at the place of embarcation or the port of destination is the rule to establish the damages sustained. It has been ruled that the value at the port of destination is the proper criterion. 12 S. & R. 136; 8 John.
R. 213; 10 John. R. 1; 14 John. R. 170; 15 John. R. 24; but contrary decisions have taken place, 3 Caines, R. 219; 4 Hayw. R. 112; and see 4 Mass. R. 115; 1 T. R. 31; 4 T. R. 582. In cases of eviction, the measure of damages is generally the consideration money, with interest, and costs, and no more. Vide Eviction. This seems not, however, to be the universal rule in the United States. 3 Mass. R. 523; 4 Mass. R. 108; 1 Bay, R. 19, 265; 3 Dess. Eq. R. 247. Damages for tortious acts are given for acts against the person, as an assault and battery; against the reputation, as libels and slander; against the property, as, trespass, when force is used, or for the consequential acts of the tort-feasor; as, when in consequence of a man building a dam on his own premises, he overflows his neighbour's land; against the relative rights of the party injured, as, criminal conversation with his wife. No settled rule or line of distinction can be marked out when a possibility of damages shall be accounted too remote to entitle a party to claim a recompense: each case must be ruled by its own circumstances. Ham. N. P. 40; Kames on Eq. 73, 74. Vide 7 Vin. Ab. 247; Yelv. 45, a; lb. 176, a; Bac. Ab. h. t.; 1 Lilly's Reg. 525; Domat, liv. 3, t. 5, s. 2, n. 4; Toull. liv. 3, n. 286; 2 Saund. 107, note; 1 Rawle's Rep. 27; Coop. Just. 606; Com. Dig. h. t.
In cases of loss of goods which have been insured from maritime dangers, when an adjustment is made, the damages are settled by valuing the property, not according to prime cost, but at the price at which it may be sold at the time of settling the average. Marsh. Ins. B. l,c. 14, s. 2, p. 621. See Adjustment; Price.
DAMAGES ON BILLS OF EXCHANGE, contracts, is a penalty affixed by law on the non-payment of a bill of exchange when it is not paid at maturity, and which the parties to it are obliged to pay to the holder. The discordant and shifting regulations on this subject which have been enacted in the several states render it almost impossible to give a correct view of this subject.
The following abstract of the law of most of the United States, will be acceptable to the commercial lawyer.
Alabama. 1. When drawn on a person in the United States. By the act of January 15,1828, the damages on a protested bill of exchange drawn on a person, either in this or any other of the United States are ten per cent. By the act of December 21, 1832, the damages on such bills drawn on any person in this State, or upon any person payable in New Orleans, and purchased by the Bank of Alabama or its branches, are five per cent.—2. Damages on protested bills drawn on persons out of the United States are twenty per cent.
Arkansas. 1. It is provided by the act of February 28, 1838, s. 7, Ark. Rev. Stat. 150, that "every bill of exchange expressed to be for value received, drawn or negociated within this state, payable after date, to order or bearer, which shall be duly presented for acceptance or payment, and protested for non-acceptance or non-payment, shall be subject to damages in the following cases: first, if the bill have been drawn on any person at any place within this state, at the rate of two per centum on the principal sum specified in the bill: second, if the bill shall be drawn on any person, and payable in any of the states of Alabama, Louisiana, Mississippi, Tennessee, Kentucky, Ohio, Indiana, Illinois and Missouri, or any point on the Ohio river, at the rate of four per centum on the principal sum in such bill specified; third, if the bill shall have been drawn on any person, and payable at any place within the
limits of the United States, not hereinbefore expressed, at the rate of five per centum on the principal sum specified in the bill; fourth, if the bill shall have been drawn on any person, and payable at any port or place beyond the limits of the United States, at the rate of ten per centum on the sum specified in the bill.—2. And, by the 8th section of the same act, if any bill of exchange, expressed to be for value received, and made payable to order or bearer, shall be drawn on any person at any place within this state, and accepted and protested for non-payment, there shall be allowed and paid to the holder, by the acceptor damages in the following cases; first, if the bill be drawn by any person at any place within this state, at the rate of two per centum on the principal sum therein specified; second, if the bill be drawn at any place without this state, but within the limits of the United States, at the rate of six per .centum on the sum therein specified: third, if the bill be drawn on any person at any place without the limits of the United States, at the rate of ten per centum on the sum therein specified. And, by sect. 9, in addition to the damages allowed in the two preceding sections to the holder of any bill of exchange protested for non-payment or non-acceptance, he shall be entitled to costs of protest, and interest at the rate of ten per centum per annum, on the amount specified in the bill, from the date of the protest until the amount of such bill shall be paid."
Connecticut. 1. When drawn on another place in the United States. When drawn upon persons in the city of New York, two per cent. When in other parts of the State of New York, or the New England states (other than this), New Jersey, Pennsylvania, Delaware, Maryland, Virginia, or the District of Columbia, three per cent. When on persons in North or South Carolina, Georgia, or Ohio, five per cent. On other states, territories or districts, in the United States, eight per cent, on the principal sum in each case, with interest on the amount of such sum, with the damages after notice and demand. Stat. Tit. 71, Notes and Bills, 413, 414. When drawn on persons residing in Connecticut no damages are allowed.—2. When the bill is drawn on persons out of the United States, fwenty per cent. is said to be the amount which ought reasonably to be allowed. Swift's Ev. 336. There is no statutory provision on the subject.
Delaware. If any person shall draw or indorse any bill of exchange upon any person in Europe, or beyond seas, and the same shall be returned back unpaid, with a legal protest, the drawer thereof and all others concerned shall pay and discharge the contents of the said bill, together with twenty per cent, advance for the damage thereof; and so proportionably for a greater or less sum, in the same specie as the same bill was drawn, or current money of this government equivalent to that which was first paid to the drawer or indorser.
Georgia. 1. Bills on persons in the United States. First, in the state. No damages are allowed on protested bills of exchange drawn in the state, on a person in the state, except bank bills on which the damages are ten per cent. for refusal to pay in specie. 4 Laws of Geo. 75. Secondly, Upon bills drawn or negotiated in the state on persons out of the state, but within the United States five per cent. and interest. Act of 1823, Prince's Dig. 454; 4 Laws of Geo. 212.—2. When drawn upon a person out of the United States, ten per cent. damages and postage, protest and necessary expenses; also the premium, if any, on the face of the bill; but if at
a discount, the discount must be de. ducted. Act of 1827, Prince's Dig. 462; 4 Laws of Geo. 221.
Indiana. 1. When drawn by a person in the state on another person in Indiana, no damages are allowed. 2. When drawn on a person in another state, territory, or district, five per cent. 3. When drawn on a person out of the United States, ten per cent. Rev. Code, c. 13, Feb. 17, 1638.
Kentucky. 1. When drawn by a person in Kentucky on a person in the state, or in any other state, territory, or district of the United States, no damages are allowed. See Acts, Session of 1820, p. 823.-2. When on a person in a foreign country, damages are given at the rate of ten per cent. per ann. from the date of the bill, until paid, but not more than eighteen months interest to be collected. 2 Litt. 101.
Louisiana. The rate of damages to be allowed and paid upon the usual protest for non-acceptance, or for nonpayment of bills of exchange, drawn or negociated within this state, in the following cases, is as follows: on all bills of exchange drawn on or payable in foreign countries, ten dollars upon the hundred upon the principal sum specified in such bills; on all bills of exchange, drawn on and payable in other states in the United States, five dollars upon the hundred upon the principal sum specified in such bill. Act of March 7, 1838, s. 1. By the second section of the same act it is provided that such damages shall be in lieu of interest, charge of protest, and all other charges, incurred previous to the time of giving notice of non-acceptance or non-payment; but the principal and damages shall bear interest thereafter. By section 3, it is enacted, that if the contents of such bill be expressed in the money of account of the United States, the amount of the principal