COMMISSIONER, officer. One who has a lawful commission to execute a
public office. In a more restricted sense it is one who is authorized to
execute. a particular duty, as, commissioner of the revenue, canal commissioner.
The term when used in this latter sense is not applied, for example, to a judge.
There are commissioners, too, who have no regular commissions and derive their
author from the elections held by the people. County commissioners, in
Pennsylvania, are officers of the latter kind.
COMMISSIONER OF PATENTS. The name of an officer of the United States
whose duties are detailed in the act to promote the useful arts, &c., which
will be found under the article Patent.
COMMISSIONERS OF BAIL, practice. Officers appointed by some courts to
take recognizances of bail in civil cases.
COMMISSIONERS OF SEWERS, Eng. law. Officers whose duty it is to repair
sea banks aud walls, survey rivers, public streams, ditches, &c.
COMMISSlONS, contracts, practice. An allowance of compensation to an
agent, factor, executor, trustee or other person who manages the affairs of
others, for his services in performing the same.
2. The right of agents, factors or other contractors to commissions, may
either be the subjeot of a special contract, or rest upon the quantum meruit. 9
C. & P. 559; 38 E. C. L. R. 227; 3 Smith's R. 440; 7 C. & P. 584; 32 E.
C. L. R. 641; Sugd. Vend. Index, tit. Auctioneer
3. This compensation is usually the allowance of a certain, per centage upon
the actual amount or value of the business done. When there is a usage of trade
at the particular place, or in the particular business in which the agent is
engaged, the amount of commissions allowed to auctioneers, brokers and factors,
is regulated by such usage. 3 Chit. Com. Law, 221; Smith on Mere. Law, 54;
Story, Ag. 326; 3 Camp. R. 412; 4 Camp. R. 96; 2 Stark. 225, 294.
4. The commission of an agent is either ordinary or del credere. (q. v.) The
latter is an increase of the ordinary commission, in consideration of the
responsibility which the agent undertakes, by making himself answerable for the
solvency of those with whom he contracts. Liverm. Agency, 3, et seq.; Paley,
Agency, 88, et seq.
5. In Pennsylvania, the amount missions allowed to executors and trustees is
generally fixed at five per centum on the sum received and paid out, but this is
varied according to circumstances. 1 9 S. & R. 209, 223; 4 Whart. 98; 1
Serg. & Rawle, 241. In England, no commissions are allowed to executors or
trustees. 1 Vern. R. 316, n. and the cases there: cited. 4 Ves. 72, n.
TO COMMIT. To send a person to prison by virtue of a warrant or other
lawful writ, for the commission of a crime, offence or misdemeanor, or for a
contempt, or non-payment of a debt.
COMMITMENT, criminal law, practice. The warrant. or order by which a
court or magistrate directs a ministerial officer to take a person to prison.
The commitment is either for further hearing, (q. v.) or it is final.
2. The formal requisites of the commitment are, 1st. that it be in writing,
under hand, and seal, and show the authority of the magistrate, and the time and
place of making it. 3 Har. & McHen. 113; Charl. 280; 3 Crancb, R. 448; see
Harp. R. 313. In this case it is said a seal is not indispensable.
3. - 2d. It must be made in the name of the United States, or of the
commonwealth, or people, as required by the constitution of the United States
or, of the several states.
4. - 3d. It should be directed to the keeper of the prison, and not generally
to carry the party to prison. 2 Str. 934; 1 Ld. Raym. 424.
5. - 4th. The prisoner should be described by his name and surname, or the
name he gives as his.
6. - 5th. The commitment ought to state that the party has been charged on
oath. 3 Cranch, R.448. But see 2 Virg. Cas. 504; 2 Bail. R. 290.
7. - 6th. The particular crime charged against the prisoner should be
mentioned with convenient certainty. 3 Cranch, R. 449; 11 St. Tr. 304. 318;
Hawk. B. 2, c. 16, s. 16 Chit. Cr. Law, 110.
8. - 7th. The commitment should point out the place of imprisonment, and not
merely direct that the party be taken to prison. 2 Str. 934; 1 Ld. Ray. 424.
9. - 8th. In a final commitment, the command to the keeper of the prison
should be to keep the prisoner "until he shall be discharged by due course of
law," when the offence is not bailable; when it is bailable the gaoler should
be, directed to keep the prisoner in his " said custody for want of sureties, or
until he shall be discharged by due course of law." When the commitment is not
final, it is usual to commit the prisoner " for further hearing." The commitment
is also called a mittimus. (q. v.)
10. The act of sending a person to prison charged with the commission of a
crime by virtue of such a warrant is also called a commitment. Vide, generally,
4 Vin. Ab. 576; Bac. Ab. h. t.; 4 Cranch, R. 129; 4 Dall. R. 412; 1 Ashm. R.
248; 1 Cowen, R. 144; 3 Conn. R. 502; Wright, R. 691; 2 Virg. Cas. 276; Hardin,
R. 249; 4 Mass. R. 497; 14 John. R. 371 2 Virg. Cas. 594; 1 Tyler, R. 444; U. S.
Dig. h. t.
COMMITTEE, practice. When a person has been found non compos, the law
requires that a guardian should be appointed to take care of his person and
estate; this guardian is called the committee.
2. It is usual to select the committee from the next of kin; Shelf. on Lun.
137; and in case of the lunacy of the husband or wife, the one who is of sound
mind is entitled, unless under very special circumstances, to be the committee
of the other. Id. 140. This is the committee of the person. For committee of the
estate, the heir at law is most favored. Relations are referred to strangers,
but the latter may be appointed. Id. 144.
3. It is the duty of the committee of the person, to take care of the
lunatic; and the committee of the estate is bound to administer the estate
faithfully, and to account for his administration. He cannot in general, make
contracts in relation to the estate of the lunatic, or bind it, without a
Special order of the court or authority that appointed him. Id. 179; 1 Bouv.
Inst. n. 389-91.
COMMITTEE, legislation. One or more members of a legislative body to
whom is specially referred some matter before that body, in order that they may
investigate and examine into it and report to those who delegated this authority
COMMITTITUR PIECE, Eng. law. An instrument in writing, on paper or
parchment, which charges a person already in prison, in execution at the suit
of, the person who arrested him.
COMMlXTION, civil law. This term is used to signify the act by which
goods are mixed together.
2. The matters which are mixed are dry or liquid. In the commixtion of the
former, the matter retains its substance and individuality; in the latter, the
substances no longer remain distinct. The commixtion of liquids is called
confusion, (q. v.) and that of solids, a mixture. Lec. Elem. du Dr. Rom. 370,
371; Story, Bailm. 40; 1 Bouv. Inst. n. 506.
COMMODATE, contracts. A term used in the Scotch law, which is
synonymous to the Latin commodatum, or loan for use. Ersk. Inst. B. 3, t. 1, 20;
1 Bell's Com. 225; Ersk. Pr. Laws of Scotl. B. 3, t. 1, 9.
2. Judge Story regrets this term has not been adopted and naturalized, as
mandate has been from mandatum. Story, Com. 221. Ayliffe, in his Pandects, has
gone further, and terms the bailor the commodant, and the bailee the
commodatory, thus avoiding those circumlocutions, which, in the common
phraseology of our law, have become almost indispensable. Ayl. Pand. B. 4, t.
16, p. 517. Browne, in his Civil Law, vol. 1, 352, calls the property loaned
"commodated property." See Borrower; Loan for use; Lender.
COMMODATUM. A contract, by which one of the parties binds himself to
return to the other certain personal chattels which the latter delivers to him,
to be used by him, without reward; loan -for use. Vide Loan for use.
COMMON. or right of common, English law. An encorporeal hereditament,
which consists in a profit which a man has in the lands of another. 12 S. &
R. 32; 10 Wend. R. 647; 11 John. R. 498; 2 Bouv. Inst. 1640, et seq.
2. Common is of four sorts; of pasture, piscary, turbary and estovers.
Finch's Law, 157; Co. Litt. 122; 2 Inst. 86; 2 Bl. Com. 32.
3. - 1. Common of pasture is a right of feeding one's beasts on another's
land, and is either appendant, appurtenant, or in gross.
4. Common appendant is of common right, and it may be claimed in pleading as
appendant, without laying a prescription. Hargr. note to 2 Inst. 122, a
5. Rights of common appurtenant to the claimant's land are altogether
independent of the tenure, and do not arise from any absolute necessity; but may
be annexed to lands in other lordships, or extended to other beasts besides.
such as are generally commonable.
6. Common in gross, or at large, is such as is neither appendant nor
appurtenant to land, but is annexed to a man's person. All these species of
pasturable common, may be and usually are limited to number and time; but there
are also commons without stint, which last all the year. 2 Bl. Com. 34.
7. - 2. Common of piscary is the liberty of fishing in another man's water.
lb. See Fishery.
8. - 3. Common of turbary is the liberty of digging turf in another man's
9.-4. Common of estovers is the liberty of taking necessary wood-for the use
or furniture of a house or farm from another man's estate. Ib.; 10 Wend. R. 639.
10. The right of common is little known in the United States, yet there are
some regulations to be found in relation to this subject. The constitution of
Illinois provides for the continuance of certain commons in that state. Const.
art. 8, s. 8.
11. All unappropriated lands on the Chesapeake Bay, on the Shore of the sea,
or of any river or creek, and the bed of any river or creek, in the eastern
parts of the commonwealth, ungranted and used as common, it is declared by
statute in Virginia, shall remain so, and not be subject to grant. 1 Virg. Rev.
12. In most of the cities and towns in the United States, there are
considerable tracts of land appropriated to public use. These commons were
generally laid out with the cities or towns where they are found, either by the
original proprietors or by the early inhabitants. Vide 2 Pick. Rep. 475; 12 S.
& R. 32; 2 Dane's. Ab. 610; 14 Mass. R. 440; 6 Verm. 355. See, in general,
Vin. Abr. Common; Bac. Abr. Common; Com. Dig. Common; Stark. Ev. part 4, p. 383;
Cruise on Real Property, h. t.; Metc. & Perk. Dig. Common, and Common lands
and General fields.
COMMON APPENDANT, Eng. law. A right attached to arable land, and is an
incident of tenure, and supposed to have originated by grant of the lord or
owner of a manor or waste, in consideration of certain rents or services, or
other value, to a freeholder or copyholder of plough land, and at the same time
either expressly or by implication, and as of common right and necessity common
appendant over his other wastes and commons. Co. Litt. 122 a; Willis, 222.
COMMON APPURTENANT, Eng. law. A right granted by deed, by the owner of
waste or other land, to another person, owner of other land, to have his cattle,
or a particular description of cattle; levant and couchant upon the land, at
certain seasons of the year, or at all times of the year. An uninterrupted usage
for twenty years, is evidence of a grant. 15 East, 116.
COMMON ASSURANCES. Title by deeds are so called, because, it is said,
every man ' s estate is assured to him; these deed's or instruments operate
either as conveyances or as charges.
2.- 1. Deeds of conveyance are, first, at common law, and include feoffments,
gifts, grants, leases, exchanges, partition's, releases, confirmations,
surrenders, assignments, and defeasances; secondly, deeds of conveyance under
the statute of uses, as covenants to stand seised to uses, bargains and sale,
lease and release, deeds to lead or declare uses, and deeds of appointment and
3. - 2. Deeds which do not convoy, but only charge or discharge lands, are
obligations, recognizances, and defeasances. Vide Assurance; Deed.
COMMON BAIL. The formal entry of fictitious sureties in the proper
office of the court, which is called filing common bail to the action. See
COMMON BAR, pleading. A plea to compel the plaintiff to assign the
particular place where the trespass has been Committed. Steph. Pl. 256. It i's
sometime's called a blank bar. (q. v.)
COMMON BENCH, bancus communis. The court of common pleas was anciently
called common bench, because the pleas and controversies there determined were
between common persons. See Bench.
COMMON CARRIER, contracts. One who undertakes for hire or reward to
transport the goods of any who may choose to employ him, from place to place. 1
Pick. 50, 53; 1 Salk. 249, 250; Story, Bailm. 495 1 Bouv. Inst. n. 1020.
2. Common carriers are generally of two descriptions, namely, carriers by
land and carriers by water. Of the former description are the proprietors of
stage coaches, stage wagons or expresses, which ply between different places,
and' carry goods for hire; and truckmen, teamsters, cartmen, and porters, who
undertake to carry goods for hire, as a common employment, from one part of a
town or city to another, are also considered as common carriers. Carriers by
water are the masters and owners of ships and steamboats engaged in the
transportation of goods for persons generally, for hire and lightermen, hoymen,
barge-owners, ferrymen, canal boatmen, and others employed in like manner, are
3. By the common law, a common carrier is generally liable for all losses
which may occur to property entrusted to his charge in the course of business,
unless he can prove the loss happened in consequence of the act of God, or of
the enemies of the United States, or by the act of the owner of the property. 8
S. & R. 533; 6 John. R. 160; 11 John. R. 107; 4 N. H. Rep. 304; Harp. R.
469; Peck. R. 270; 7 Yerg. R. 340; 3 Munf. R. 239; 1 Conn. R. 487; 1 Dev. &
Bat. 273; 2 Bail. Rep. 157.
4. It was attempted to relax the rigor of the common law in relation to
carriers by water, in 6 Cowen, 266; but that case seems to be at variance with
other decisions. 2 Kent,. Com. 471, 472; 10 Johns. 1; 11 Johns. 107.
5. In respect to carriers by land, the rule of the common law seems every
where admitted in its full rigor in the states governed by the jurisprudence of
the common law. Louisiana follows the doctrine of the civil law in her code.
Proprietors of stage coaches or wagons, whose employment is solely% to carry
passengers, as hackney coachmen, are not deemed common carriers; but if the
proprietors of such vehicles for passengers, also carry goods for hire, they
are, in respect of such goods, to be deemed common carriers. Bac. Ab. Carriers,
A; 2 Show. Rep. 128 1 Salk. 282 Com. Rep. 25; 1 Pick. 50 5 Rawle, 1 79. The like
reasoning applies to packet ships and steam-boats, which ply between different
ports, and are accustomed to carry merchandise as well as passengers. 2 Watts.
R. 443; 5 Day's Rep. 415; 1 Conn. R. 54; 4 Greenl. R. 411; 5 Yerg. R. 427; 4
Har. & J. 291; 2 Verm. R. 92; 2 Binn. Rep. 74; 1 Bay, Rep. 99; 10 John. R.
1; 11 Pick. R. 41; 8 Stew. and Port. 135; 4 Stew. & Port. 382; 3 Misso. R.
264; 2 Nott. & M. 88. But see 6 Cowen, R. 266. The rule which makes acommon
carrier responsible for the loss of goods, does not extend to the carriage of
persons; a carrier of slaves is, therefore, answerable only for want of care and
skill. 2 Pet. S. C. R. 150. 4 M'Cord, R. 223; 4 Port. R. 238.
6. A common carrier of goods is in all cases entitled to demand the price of
carriage before he receives the goods, and, if not paid, he may refuse to take
charge of them; if, however, he take charge of them without the hire being paid,
he may afterwards recover it. The compensation which becomes due for the
carriage of goods by sea, is commonly called freight (q.v.); and see also, Abb.
on Sh. part 3, c. 7. The carrier is also entitled to a lien on the goods for his
hire, which, however, he may waive; but if once waived, the right cannot be
resumed. 2 Kent, Com. 497. The consignor or shipper is commonly bound to the
carrier for the hire or freight of goods. 1 T. R. 659. But whenever the
consignee engages to pay it, he also becomes responsible. It is usual in bills
of lading to state, that the goods are to be delivered to the consignee or to
his assigns, he or they paying freight, in which case the consignee and his
assigns, by accepting the goods, impliedly become bound to pay the freight, and
the fact that the consignor is also liable to pay it, will not, in such case,
make any difference. Abbott on Sh. part 3, o. 7, 4.
7. What is said above, relates to common carriers of goods. The duties,
liabilities, and rights of carriers of passengers, are now to be considered.
These are divided into carriers of passengers on land, and carriers of
passengers on water.
8. First, of carriers of passengers on land. The duties of such carriers are,
1st. those which arise on the commencement of the journey. 1. To carry
passengers whenever they offer themselves and are ready to pay for their
transportation. They have no more right to refuse a passenger, if they have
sufficient room and accommodation, than an innkeeper has to refuse a guest. 3
Brod. & Bing. 54; 9 Price's R. 408; 6 Moore, R. 141; 2 Chit. R. 1; 4 Esp. R.
460; 1 Bell's Com. 462; Story, Bailm. 591.
9. - 2. To provide coaches reasonably strong and sufficient for the journey,
with suitable horses, trappings and equipments.
10. - 3. To provide careful drivers of reasonable skill and. good habits for
the journey; and to employ horses which are steady and not vicious, or likely to
endanger the safety of the passengers.
11. - 4. Not to overload the coach either with passengers or luggage.
12. - 5. To receive and take care of the usual luggage allowed to every
passenger on the journey. 6 Hill, N. Y. Rep. 586.
13. - 2d. Their duties on the progress of the journey. 1. To stop at the
usual places, and allow the..Usual intervals for the refreshment of the
passengers. 5 Petersd. Ab. Carriers, p. 48, note.
14. - 2. To use all the ordinary precautions for the safety of passengers on
15. - 3d. Their duties on the termination of the journey. 1. To carry the
passengers to the end of the journey.
16. - 2. To put them down at the usual place of stopping, unless there has
been a special contract to the contrary, and then to put them down at the place
agreed upon. 1 Esp. R. 27. ,
17. The liabilities of such carriers. They are bound to use extraordinary
care and diligence to carry safely those whom they take in their coaches. 2 Esp.
R. 533; 2 Camp. R. 79; Peake's R. 80. But, not being insurers, they are not
responsible for accidents, when all reasonable skill and diligence have been
18. The rights of such carriers. 1. To demand and receive their fare at the
time the passenger takes his seat. 2. They have a lien on the baggage of the
passenger for his fare or passage money, but not on the person of the passenger
nor the clothes he has on. Abb. on Sh. part 3, c. 3, 11; 2 Campb. R. 631.
19. Second, carriers of passengers by water. By the act of Congress of 2d
March, 1819, 3 Story's Laws U. S. 1722, it is enacted, 1. that no master of a
vessel bound to or from the United States shall take more than two passengers
for every five tons of the ship's custom-house measurement. 2. That the quantity
of water and provisions, which shall be taken on board and secured under deck,
by every Ship bound from the United States to any port on the continent of
Europe, shall be sixty gallons of water, one hundred pounds of salted
provisions, one gallon of vinegar, and one hundred pounds of wholesome ship
bread for each passenger, besides the stores of the crew. The tonnage here
mentioned, is the measurement of the custom-house; and in estimating the number
of passengers in a vessel, no deduction is to be made for children or persons
not paying, but the crew is not to be included. Gilp. R. 334.
20. The act of Congress of February 22, 1847, section 1, provides: " That if
the master of any vessel, owned in whole or in part by a citizen of the United
States of America, or by a citizen of any foreign country, shall take on board
such vessel, at any foreign port or place, a greater number of passengers than
in the following proportion to the space occupied by them and appropriated for
their use, and unoccupied by stores or other goods, not being the personal
luggage of such passengers, that is to say, on the lower deck or platform one
passenger for every fourteen clear superficial feet of deck, if such vessel is
not to pass within the tropics during such voyage; but if such vessel is to pass
within the tropics during such voyage, then one passenger for every twenty such
clear superficial feet of deck, and on the orlop deck (if any) one passenger for
every thirty such superficial feet in all cases, with intent to bring such
passengers to the United States of America, and shall leave such port or, place
with the same, and bring the same, or any number thereof, within the
jurisdiction of the United States aforesaid, or if any such master of a vessel
shall take on board of his vessel at any port or place within the jurisdiction
of the United States aforesaid, any greater number of passengers than the
proportions aforesaid admit, with intent to carry the same to any foreign port
or place, every such master shall be deemed guilty of a misdemeanor, and, upon
conviction thereof before any circuit or district court of the United States
aforesaid, shall, for each passenger taken on board beyond the above
proportions, be fined in the sum of fifty dollars, and may also be imprisoned
for any term not exceeding one year: Provided, That this act shall not be
construed to permit any ship or vessel to carry more than two passengers to five
tons of such ship or vessel."
21. Children under one year of age not to be computed in counting the
passengers, and those over one year and under eight, are to be counted as two
cbildren for one passenger, Sect. 4. But this section is repealed so far as
authorizes shippers to estimate two children of eight years of age and under as
one passenger by the act of March 2, 1847, s. 2.
22. In New York, statutory regulations have been made in relation to their
canal navigation. Vide 6 Cowen's R. 698. As to the conduct of carrier vessels on
the ocean, Vide Story, Bailm. 607 et seq; Marsh. Ins. B. 1, c. 12, s. 2. And
see, generally, 1 Vin. Ab. 219; Bac. Ab. h. t.; 1 Com. Dig. 423; Petersd. Ab. h.
t.; Dane's Ab. Index, h. t.; 2 Kent, Com. 464; 16 East, 247, note; Bouv. Inst.
Index, h. t.
23. In Louisiana carriers and watermen are subject, with respect to the
safe-keeping and preservation of the tbings entrusted to them, to the same
obligations and duties, as are imposed on tavern keepers; Civ. Code, art. 2722;
that is, they are responsible for the effects which are brought, though they
were not delivered into their personal care; provided, however, they were
delivered to a servant or person in their employment; art. 2937. They are
responsible if any of the effects be stolen or damaged, either by their servants
or agents, or even by strangers; art. 2938; but they are not responsible for
what is stolen b force of arms or with exterior breaking open of doors, or by
any other extraordinary violence; art. 2939. For the authorities on the subject
ofCommon carriers in the civil law, the reader is referred to Dig. 4, 9, 1 to 7;
Poth. Pand. lib. 4, t. 9; Domat liv. 1, t. 16, S. 1 and 2; Pard. art. 537 to
555; Code Civil, art. 1782, 1786, 1952; Moreau & Carlton, Partidas 5, t. 8,
1. 26; Ersk. Inst. B. 2, t. 1, 28; 1 Bell's Com. 465; Abb. on Sh. part 3, c. 3,
3, note (1); 1 Voet, ad Pand. lib. 4, t. 9; Merl. Rep. mots Voiture, Voiturier;
Dict. de Police, Voiture.
COMMON COUNCIL. In many cities the charter provides for their
government, in imitation of the national and state governments. There are two
branches of the legislative assembly; the less numerous, called the select, the
other, the common council.
2. In English law, the common council of the whole realm means the
parliament. Fleta, lib. 2, cap. 13.
COMMON COUNTS. Certain general counts, not founded on any special
contract, which are introduced in a declaration, for the purpose of preventing a
defeat of a just right by the accidental variance of the evidence. These are in
an action of assumpsit; counts founded on express or implied promises to pay
money in consideration of a precedent debt, and are of four descriptions: 1. The
indebitatus assumpsit; 2. The quantum meruit; 3 . The quantum valebant; and, 4.
The account stated.
COMMON FISHERY. A fishery to which all persons have a right, such as
the cod fisheries off Newfoundland. A common fishery is different from a common
of fishery, which is the right to fish in another's pond, pool, or river. See
COMMON HIGHWAY. By this term is meant a road to be used by the
community at large for any purpose of transit or traffic. Hamm. N. P. 239. See
COMMON INFORMER. One who, without being specially required by law, or
by virtue of his office, gives information of crimes, offences or misdemeanors,
which have been committed, in order to prosecute the offenders; a prosecutor.
Vide Informer; Prosecutor.
COMMON INTENT, construction. The natural sense given to words.
2. It is a rule that when words are used which will bear a natural sense and
an artificial one, or one to be made out by argument and 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 have been omitted. 2 H.
Black. 530. In pleading, certainty is required, but certainty to a common intent
is sufficient; that is, what upon a reasonable construction may be called
certain, without recurring to possible facts. Co. Litt. 203, a; Dougl. 163. See
COMMON LAW. That which derives its force and authority from the
universal consent and immemorial practice of the people. See Law, common.
COMMON NUISANCE. One which affects the public in general, and not
merely some particular person. 1 Hawk. P. C. 197. See Nuisance.
COMMON PLEAS. The name of a court having jurisdiction generally of
civil actions. For a historical account of the origin of this court in England,
see Boote's Suit at Law, 1 to 10. Vide Common Bench and Bench.
2. By common pleas, is also understood, such pleas or actions as are brought
by private persons against private persons; or by the government, when the cause
of action is of a civil nature. In England, whence we derived this phrase,
common pleas are so called to distinguish them from pleas of the crown. (q.
COMMON RECOVERY. A judgment recovered in a fictitious suit, brought
against the tenant of the freehold, in consequence of a default made by the
person who is last vouched to warranty in the suit., A common recovery is a kind
of conveyance. 2 Bouv. Inst. n. 2088, 2092-3. Vide Recovery.
COMMON SCOLD, Crim. law, communes rixatrix. A woman, who, in
consequence of her boisterous, disorderly and quarrelsome tongue, is a public
nuisance to the neighborhood.
2. Such a woman may be indicted, and on conviction, punished. At common law,
the punishment was by being placed in a certain engine of correction called the
trebucket or cocking stool.
3. This punisbment has been abolished in Pennsylvania, where the offence may
be punished by fine and imprisonment.12 Serg. & Rawle, 220; vide 1 Russ. on
Cr. 802 Hawk. B. 2, c. 25, s. 59 1 T. R. 756 4 Rogers' Rec. 90; Roscoe on Cr.
COMMON SEAL, A seal used by a corporation. See Corporation.
COMMON SENSE , med. jur. When a person possesses those perceptions,
associations and judgments, in relation to persons and things, which agree with
those of the generality of mankind, he is said to possess common sense. On the
contrary, when a particular individual differs from the generality of persons in
these respects, he is said not to have common sense, or not to be in his senses.
1 Chit. Med. Jur. 334.
COMMON, TENANTS IN. Tenants in common are such as hold an estate, real
or personal, by several distinct titles, but by a unity of possession. Vide
Tenant in common; Estate in common.
COMMON TRAVERSE. This kind of traverse differs from those called
technical traverses principally in this, that it is preceded by no inducement
general or special; it is taken without an absque hoc, or any similar words, and
is simply a direct denial of the adverse allegations, in common language, and
always concludes to the country. It can be used properly only when an inducement
is not requisite; that is, when the party traversing has no need to allege any
new matter. 1 Saund. 103 b. ii. 1.
2. This traverse derives its name, it is presumed, from the fact that common
language is used, and that it is more informal than other traverses.
COMMON VOUCHEE. In common recoveries, the person who vouched to
warranty. In this fictitious proceeding, the crier of the court usually performs
the office of a common vouchee. 2 Bl. Com. 358; 2 Bouv. Inst. n. 2093.
COMMONALTY, Eng. law. This word signifies, 1st. the common people of
England, as contradistinguished from the king and the nobles; 2d. the body of a
society as the masters, wardens, and commonalty of such a society.
COMMONER. One who is entitled with others to the use of a common.
COMMONS, Eng. law. Those subjects of the English nation who are not
noblemen. They are represented in parliament in the house of commons.
COMMONWEALTH, government. A commonwealth is properly a free state, or
republic, having a popular or representative government. The term has been,
applied to the government of Great Britain. It is not applicable to absolute
governments. The states composing the United States are, properly, so many
2. It is a settled principle, that no sovereign power is amenable to answer
suits, either in its own courts or in those of a foreign country, unless by its
own consent. 4 Yeates, 494.
COMMORANCY, persons. An abiding dwelling, or continuing as an
inhabitant in any place. It consists, properly, in sleeping usually in one
COMMORANT. One residing or inhabiting a particular place. Barnes,
COMMORIENTES. This Latin word signifies those wbo die at the same
time, as, for example, by shipwreck.
2. When several persons die by the same accident, and there is no evidence as
to who survived, the presumption of law is, they all died at the same time. 2
Phillim. R. 261 Fearne on Rem. iv.; 5 B. & Adol. 91; Cro. Eliz. 503; Bac.
Ab. Execution, D; 1 Mer. R. 308. See Death; Survivor.
COMMUNICATION, contracts. Information; consultation; conference.
2. In order to make a contract, it is essential there should be an agreement;
a bare communication or conference will not, therefore, amount to a contract;
nor can evidence of such communication be received in order to take from,
contradict, or alter a written agreement. 1 Dall. 426; 4 Dall. 340; 3 Serg.
& Rawle, 609. Vide Pour-parler; Wbarton's Dig. Evid. R.
COMMUNINGS, Scotch law. This term is used to express the negotiations
which have taken place before making a contract, in relation thereto. See
2. It is a general rule, that such communings or conversations, and the
propositions then made, are no part of the contract for no parol evidence will
be allowed to be given to contradict, alter, or vary a written instrument. 1
Serg. & R. 464 Id. 27; Add. R. 361; 2 Dall. R. 172 1 Binn. 616; 1 Yeates, R.
140; 12 John. R. 77; 20 John. R. 49; 3 Conn. R. 9; 11 Mass. R. 30; 13 Mass. R.
443; 1 Bibb's R. 271; 4 Bibb's R. 473; 3 Marsh. (Kty.) R. 333; Bunb. 175; 1 M.
& S. 21; 1 Esp. C. 58; 3 Campb. R. 57.
COMMUNIO BONORUM, civil law. Common goods.
2. When a person has the management of common property, owned by himself and
others, not as partners, he is bound to account for the profits, and is entitled
to be reimbursed for the expenses which he has sustained by virtue of the
quasi-contract which is created by his act, called communio bonorum. Vicat; 1
Bouv. Inst. n. 907, note.