CONCLUSION, practice. Making the last argument or address to the court
or jury. The party on whom the onus probandi is cast, in general has the
CONCLUSION, remedies. An estoppel; a bar; the act of a man by which he
has confessed a matter or thing which he can no longer deny; as, for example,
the sheriff is concluded by his return to a writ, and therefore, if upon a
capias he return cepi corpus, he cannot afterwards show that he did not arrest
the defendant, but is concluded by his return. Vide Plowd. 276, b; 3 Tho. Co.
CONCLUSION TO THE COUNTRY, pleading. The tender of. an issue to be
tried by a jury is called the conclusion to the country.
2. This conclusion is in the following words, when the issue is tendered by
the defendant: " And of this the said C D puts himself upon the country." When
it is tendered by the plaintiff, the formula is as follows: " And this the said
A B prays may be inquired of by the country." It held, however, that there is no
material difference between these two modes of expression, and that, if ponit
se, be substituted for petit quod inquiratur, or vice versa, the mistake is
unimportant. 10 Mod. 166.
3. When there is an affirmative on one side, and a negative on the other, or
vice versa, the conclusion should be to the country. T. Raym. 98; Carth. 87; 2
Saund. 189; 2 Burr. 1022. So it is, though the affirmative and negative be not
in express words, but only tantamount thereto. Co. Litt. 126, a; Yelv. 137; 1
Saund. 103; 1 Chit. Pl. 592; Com. Dig. Pleader, E 32.
CONCLUSIVE. What puts an end to a thing. A conclusive presumption of
law, is one which cannot be contradicted even by direct and positive proof.
Take, for example, the presumption that an infant is incapable of judging
whether it is or is not against his interest; When infancy is pleaded and
proved, the plaintiff cannot show that the defendant was within one day of being
of age when the contract was made, and perfectly competent to make a contract. 3
Bouv. Inst. n. 3061.
CONCLUSIVE EVIDENCE. That which cannot be contradicted by any other
evidence,; for example, a record, unless impeached for fraud, is conclusive
evidence between the parties. 3 Bouv. Inst. n. 3061-62.
CONCLUSUM, intern. law. The form of an acceptance or conclusion of a
treaty; as, the treaty was ratified purely and simply by a conclusum. It is the
name of a decree of the Germanic diet, or of the aulic council.
CONCORD, estates, conveyances, practice. An agreement or supposed
agreement between the parties in levying a fine of lands, in which the
deforciant (or he who keeps the other out of possession,) acknowledges that the
lands in question, are the right of the complainant;. and from the
acknowledgment or recognition of right thus made, the party who levies the fine
is called the cognisor, and the person to whom it is levied, the cognisee. 2 Bl.
Com. 350; Cruise, Dig. tit. 35, c. 2, s. 33; Com. Dig. Fine, E 9.
CONCORDATE. A convention; a pact; an agreement. The term is generally
confined to the agreements made between independent government's; and, most
usually applied to those between the pope and some prince.
CONCUBINAGE. This term has two different significations; sometimes it
means a species of marriage which took place among the ancients, and which is
yet in use in some countries. In this country it means the act or practice of
cobabiting as man and woman, in sexual commerce, without the authority of law,
or a legal marriage. Vide 1 Bro. Civ. Law, 80; Merl. Rep. b. t.; Dig. 32, 49, 4;
Id. 7, 1, 1; Code, 5, 27, 12.
CONCUBINE. A woman who cohabits with a man as his wife, without being
TO CONCUR. In Louisiana, to concur, signifies, to claim a part, of the
estate of an insolvent along with other claimants; 6 N. S. 460; as " the wife
concurs with her husband's creditors, and claims a privilege over them."
CONCURRENCE, French law. The equality of rights, or privilege which
several persons-have over the same thing; as, for example, the right which two
judgment creditors, Whose judgments were rendered at the same time, have to be
paid out of the proceeds of real estate bound by them. Dict. de Jur. h. t.
CONCURRENT. Running together; having the same authority; thus we say a
concurrent consideration occurs in the case of mutual promises; such and such a
court have concurrent jurisdiction; that is, each has the same jurisdiction.
CONCUSSION, civ. law. The unlawful forcing of another by threats of
violence to give something of value. It differs from robbery in this, that in
robbery the thing is taken by force, while in concussion it is obtained by
threatened violence. Hein. Lec. El, 1071
CONDEDIT, eccl. law. The name of a plea, entered by a party to a libel
filed in the ecclesiastical court, in which it is pleaded that the deceased made
the will which is the subject of the suit, and that he was of sound mind. 2 Eng.
Eccl. Rep. 438; 6 Eng. Eccl. Rep. 431.
CONDELEGATES. Advocates who have been appointed judges of the bigh
court of delegates are so called. Shelf. on Lun. 310.
CONDEMNATION, mar. law. The sentence or judgment of a court of
competent jurisdiction that a ship or vessel taken as a prize on the high seas,
was liable to capture, and was properly and legally captured.
2. By the general practice of the law of nations, a sentence of condemnation
is, at present, generally deemed necessary in order to divest the title of a
vessel taken as a prize. Until this has been done the original owner may regain
his property, although the ship may have been in possession of the enemy
twenty-four hours, or carried infra praesidia. 1 Rob. Rep. 134; 3 Rob. Rep. 97,
n.; Carth. 423; Chit. Law of Nat. 99, 100; 10 Mod. 79; Abb. on Sh. 14; Wesk. on
Ins. h. t.; Marsh. on Ins. 402. A sentence of condemnation is generally binding
everywhere. Marsh. on Ins. 402.
3. The term condemnation is also applied to the sentence which declares a
ship to be unfit for service; this sentence and the grounds of it may, however,
be re-examined and litigated by parties interested in disputing it. 5 Esp. N. P.
C. 65; Abb. on Shipp. 4.
CONDEMNATION, civil law. A sentence of judgment which condemns some
one to do, to give, or to pay something; or which declares that his claim or
pretensions are unfounded. This word is also used by common lawyers, though it
is more usual to say conviction, both in civil and criminal cases. It is a maxim
that no man ought to be condemned unheard, and without the opportunity of being
CONDICTIO INDEBITI, civil law. When the plaintiff has paid to the
defendant by mistake what he was not bound to pay either in fact or in law, he
may recover it back by an action called condictio indebiti. This action does not
lie, 1. if the sum was due ex cequitate, or by a natural obligation; 2. if he
who made the payment knew that nothing was due, for qui consulto dat quod non
debetat, prcesumitur donare. Vide Quasi contract.
CONDICTION, Lat. condictio. This term is used in the civil law in the
same sense as action. Condictio certi, is an action for the recovery of a
certain thing, as our action of replevin, condictio incerti, is an action given
for the recovery of an uncertain thing. Dig. 12 , 1.
CONDITION, contracts, wills. In its most extended signification, a
condition is a clause in a contract or agreement which has for its object to
suspend, to rescind, or to modify the principal obligation; or in case of a
will, to suspend, revoke, or modify the devise or bequest. 1 Bouv. Inst. n. 730.
It ii in fact by itself, in many cases, an agreement; and a sufficient
foundation as an agreement in writing, for a bill in equity, praying for a
specific performance. 2 Burr. 826. In pleading, according to the course of the
common Iaw, the bond and its condition are to some intents and purposes,
regarded as distinct things. 1 Saund. Rep. by Wms. 9 b. Domat has given a
definition of a condition, quoted by Hargrave, in these words: "A condition is
any portion or agreement which regulates what the parties have a mind should be
done, if a case they foresee should come to pass." Co. Litt. 201 a.
2. Conditions sometimes suspend the obligation; as, when it is to have no
effect until they are fulfilled; as, if I bind myself to pay you one thousand
dollars ou condition that the ship Thomas Jefferson shall arrive in the United
States from Havre; the contract is suspended until the arrival of the ship.
3. The condition sometimes rescinds the contract; as, when I sell you my
horse, on condition that he shall be alive on the first day of January, and he
dies before that time.
4. A condition may modify the contract; as, if I sell you two thousand
bushels of corn, upon condition that my crop shall produce that much, and it
produces only fifteen hundred bushels.
5. In a less extended acceptation, but in a true sense, a condition is a
future and uncertain event, on the existence or non-existence of which is made
to depend, eitther the accomplishment, the modification, or the rescission of an
obligation or testamentary disposition.
6. There is a marked difference between a condition and a limitation. When a
in is given generally, but the gift may defeated upon the happening of an
uncertain event, the latter is called a condition but when it is given to be
enjoyed until the event arrives, it is a limitation. See Limitation; Estates. It
is not easy to say when a condition will be considered a covenant and when not,
or when it will be holden to be both. Platt on Cov. 71.
7. Events foreseen by conditions are of three kinds. Some depend on the acts
of the persons who deal together, as, if the agreement should provide that a
partner should not join another partnership. Others are independent of the will
of the parties, as, if I sell you one thousand bushels of corn,. on condition
that my crop shall not be destroyed by a fortuitous event, or act of God. Some
depend in part on the contracting parties and partly on the act of God, as, if
it be provided that such merchandise shall arrive by a certain day.
8. A condition may be created by inserting the very word condition, or on
condition, in the deed or agreement; there are, however, other words that will
do so as effectually, as proviso, if, &c. Bac. Ab. Conditions, A.
9. Conditions are of various kinds; 1. as to their form, they are express or
implied. This division is of feudal origin. 2 Woodes. Lect. 138. 2. As to their
object, they are lawful or unlawful; 3. as to the time when they are to take
effect, they are precedent or subsequent; 4. as to their nature, they are
possible or impossible 5. as to their operation, they are positive or negative;
6. is to their divisibility, they are copulative or disjunctive; 7. as to their
agreement with the contract, they are consistent or repugnant; 8. as to their
effect, they are resolutory or suspensive. These will be severally
10. An express condition is one created by express words; as for instance, a
condition in a lease that if the tenant shall not pay the rent at the day, the
lessor may reenter. Litt. 328. Vide Reentry.
11. An implied condition is one created by law, and not by express words; for
example, at common law, the tenant for life holds upon the implied condition not
to commit waste. Co. Litt. 233, b.
12 . A lawful or legal condition is one made in consonance with the law. This
must be understood of the law as existing at the time of making the condition,
for no change of the law can change the force of the condition. For example, a
conveyance was made to the grantee, on condition that he should not aliens until
be reached the age of twenty-five years. Before he acquired this age be aliened,
and made a second conveyance after he obtained it; the first deed was declared
void, and the last valid. When the condition was imposed, twenty-five was the
age of majority in the state; it was afterwards changed to twenty-one. Under
these circumstances the condition was held to be binding. 3 Miss., R. 40.
13. An unlawful or illegal condition is one forbidden by law. Unlawful
conditions have for their object, lst. to do something malum in se, or malum
prohibitum; 2d. to omit the performance of some duty required by law 3d. to
encourage such act or omission. 1 P. Wms. 189. When the law prohibits, in
express terms, the transaction in respect to which the condition is made, and
declares it void, such condition is then void; 3 Binn. R. 533; but when it is
prohibited, without being declared void, although unlawful, it is not void. 12
S. @ R. 237. Conditions in restraint of marriage are odious, and are therefore
held to the utmost rigor and strictness. They are contrary to sound policy, and
by the Roman law were all void. 4 Burr. Rep. 2055; 10 Barr. 75, 350; 3 Whart.
14. A condition precedent is one which must be performed before the estate
will vest, or before the obligation is to be performed. 2 Dall. R. 317. Whether
a condition shall be considered as precedent or subsequent, depends not on the
form or arrangement of the words, but on the manifest intention of the parties,
on the fair construction of the contract. 2 Fairf. R. 318; 5 Wend. R. 496; 3
Pet, R. 374; 2 John. R. 148; 2 Cain es, R. 352; 12 Mod. 464; 6 Cowen, R. 627 9
Wheat. R. 350; 2 Virg. Cas. 138 14 Mass. R. 453; 1 J. J. Marsh. R. 591 6 J. J.
Marsh. R. 161; 2 Bibb, R. 547 6 Litt. R. 151; 4 Rand. R. 352; 2 Burr. 900
15. A subsequent condition is one which enlarges or defeats an estate or
right, already created. A conveyance in fee, reserving a life estate in a part
of the land, and made upon condition that the grantee shall pay certain sums of
money at divers times to several persons, passes the fee upon condition
subsequent. 6 Greenl. R. 106. See 1 Burr. 39, 43; 4 Burr. 1940. Sometimes it
becomes of great importance to ascertain whether the condition is precedent or
subsequent. When a precedent condition becomes impossible by the act of God, no
estate or right vests; but if the condition is subsequent, the estate or right
becomes absolute. Co. Litt. 206, 208; 1 Salk. 170.
16. A possible condition is one which may be performed, and there is nothing
in the laws of nature to prevent its performance.
17. An impossible condition is one which cannot be accomplished according to
the laws of nature; as, to go from the United States to Europe in one day.; such
a condition is void. 1 Swift's Dig. 93; 5 Toull. n. 242-247. When a condition
becomes impossible by the act of God, it either vests the estate, or does not,
as it is precedent or subsequent: when it is the former, no estate vests when
the latter, it becomes absolute. Co. Litt. 206, a, 218, a; 3 Pet. R. 374; 1
Hill. Ab. 249. When the performance of the condition becomes impossible by the
act of the party who imposed it, the estate is rendered absolute. 5 Rep. 22; 3
Bro. Parl. Cas. 359. Vide 1 Paine's R. 652; Bac. Ab. Conditions, M; Roll. Ab.
420; Co. Litt. 206; 1 Rop. Leg. 505; Swinb. pt. 4, s. 6; Inst. 2, 4, 10; Dig.
28, 7, 1; Id. 44, 7, 31; Code 6, 25, 1; 6 Toull. n. 486, 686 and the article
18. A positive condition requires that the event contemplated shall happen;
as, If I marry. Poth. Ob. part 2, c. 3, art. 1, 1. 19. A negative condition
requires that the event contemplated shall not happen as If I do not marry.
Potb. Ob. n. 200.
20. A copulative condition, is one of several distinct-matters, the whole of
which are made precedent to the vesting of an estate or right. In this case the
entire condition must be performed, or the estate or right can never arise or
take place. 2 Freem. 186. Such a condition differs from a disjunctive condition,
which gives to the party the right to perform the one or the other; for, in this
case, if one becomes impossible by the act of God, the whole will, in general,
be excused. This rule, however, is not without exception. 1 B. & P. 242;
Cro. Eliz. 780; 5 Co. 21; 1 Lord Raym. 279. Vide Conjunctive; Disjunctive.
21. A disjunctive condition is one which gives the party to be affected by
it, the right to perform one or the other of two alternatives.
22. A consistent condition is one which agrees with other parts of the
23. A repugnant condition is one which is contrary to the contract; as, if I
grant to you a house and lot in fee, upon condition that you shall not aliene,
the condition is repugnant and void, as being inconsistent with the estate
granted. Bac. Ab. Conditions L; 9 Wheat. 325; 2 Ves. jr. 824.
24. A resolutory condition in the civil law is one which has for its object,
when accomplished the revocation of the principal obligation. This condition
does not suspend either the existence or the execution of the obligation, it
merely obliges the creditor to return what he has received.
25. A suspensive condition is one which susends the fulfilment of the
obligation until it has been performed; as, if a man bind himself to pay one
-hundred dollars, upon condition that the ship Thomas Jefferson shall arrive
from Europe. The obligation, in this case, is suspended until the arrival of the
ship, when the condition having been performed, the obligation becomes absolute
, and it is no longer conditional. A suspensive condition is in fact a condition
26. Pothier further divides conditions into potestative, casual and
27. A potestative condition is that which is in the power of the person in
whose favor it is contracted; as, if I engage to give my neighbor a sum of
money, in case he outs down a tree which obstructs my. prospect. Poth. Obl. Pt.
2, c. 3, art. 1, 1.
28. A casual condition is one which depends altogether upon chance, and not
in the power of the creditor, as the following: if I have children; if I have no
children; if such a vessel arrives in the United States, &c. Poth. Ob. n.
29. A mixed condition is one which depends on the will of the creditor and of
a third person; as, if you marry my cousin. Poth. Ob. n. 201. Vide, generally,
Bouv. Inst. Index, h. t.
CONDITION, persons. The situation in civil society which creates
certain relations between the individual, to whom it is applied, and one or more
others, from which mutual rights and obligations arise. Thus the situation
arising from marriage gives rise to the conditions of husband and wife that of
paternity to the conditions of father and child. Domat, tom. 2, liv. 1, tit. 9,
s. 1, n. 8.
2. In contracts every one is presume to know the condition of the person with
whom he deals. A man making a contract with an infant cannot recover against him
for a breach of the contract, on the ground that he was not aware of his
CONDITIONAL OBLIGATION. One which is superseded by a condition under
which it was created and which is not yet accomplished. Poth. Obl. n. 176,
CONDITIONS OF SALE, contracts. The terms upon which the vendor of
property by auction pro poses to sell it; the instrument containing these terms,
when reduced to writing or printing, is also called the conditions of sale.
2. It is always prudent and advisable that the conditions of sale should be
printed and exposed in the auction room; when so done, they are binding ou both
parties, and nothing that is said at the time of sale, to add to or vary such
printed conditions, will be of any avail. 1 H. Bl. 289 12 East, 66 Ves. 330; 15
Ves. 521; 2 Munf. Rep. 119; 1 Desauss. Ch. Rep. 573; 2 Desauss. Ch. R. 320; 11
John. Rep. 555; 3 Camp. 285. Vide forms of conditions of sale in Babington on
Auctions, 233 to 243; Sugd. Vend. Appx. No. 4. Vide duction; ductioneer;
CONDONATION. A term used in the canon law. It is a forgiveness by the
husband of his wife, or by a wife of her husband, of adultery committed, with an
implied condition that the injury shall not be repeated, and that the other
party shall be treated with conjugal kindness. 1 Hagg. R. 773; 3 Eccl. Rep. 310.
See 5 Mass. 320 5 Mass. 69; 1 Johns. Ch. R. 488.
2. It may be express or implied, as, if a husband, knowing of his wife's
infidelity, cohabit with her. 1 Hagg. Rep. 789; 3 Eccl. R. 338.
3. Condonation is not, for many rea sons, held so strictly against a wife as
against a husband. 3 Eccl. R. 830 Id. 341, n.; 2 Edw. R. 207. As all
condonations, by operation of law, are expressly or impliedly conditional, it
follows that the effect is taken off by the repetition of misconduct; 3 Eccl. R.
329 3 Phillim. Rep. 6; 1 Eccl. R. 35; and cruelty revives condoned adultery.
Worsley v. Worsley, cited in Durant v. Durant, 1 Hagg. Rep. 733; 3 Eccl. Rep.
4. In New York, an act of cruelty alone, on the part of the husband, does not
revive condoned adultery, to entitle the wife to a divorce. 4 Paige's R. 460.
See 3 Edw. R. 207.
5. Where the parties have separate beds, there must, in order to found
condonation, be something of matrimonial intercourse presumed; it does not rest
merely on the wife's not. withdrawing herself. 3 Eccl. R. 341, n.; 2 Paige, R.
6. Condonation is a bar to a sentence of divorce. 1 Eccl. Rep. 284; 2 Paige,
R. 108. In Pennsylvania, by the Act of the 13th of March, 1815, 7, 6 Reed's Laws
of Penna. 288, it is enacted that " in any suit or action for divorce for cause
of adultery, if the defendant shall allege and prove that the plaintiff has
admitted the defendant into conjugal society or embraces, after he or she knew
of the criminal fact, or that the plaintiff (if the husband) allowed of his
wife's prostitutions, or received hire, for them, or exposed his wife to lewd
company, whereby she became ensnared to the crime aforesaid, it shall be a good
defence, and perpetual bar against the same." The same rule may be found,
perhaps, in the codes of most civilized countries. Villanova Y Manes, Materia
Criminal Forense, Obs. 11, c. 20, n. 4. Vide, generally, 2 Edw. 207; Dev. Eq. R.
352 4 Paige, 432; 1 Edw. R. 14; Shelf. on M. & D. 445; 1 John. Ch. R. 488 4
N. Hamp. R. 462; 5 Mass. 320.
CONDUCT, law of nations. This term is used in the phrase safe conduct,
to signify the security given, by authority of the government, under the great
seal, to a stranger, for his quietly coming into and passing out of the
territories over which it has jurisdiction. A safe conduct differs from a
passport; the former is given to enemies, the latter to friends or citizens.
CONDUCT MONEY. The money advanced to a witness who has been subpoenaed
to enable him to attend a trial, i's so called. CONDUCTOR OPERARUM, civil law.
One who undertakes, for a reward, to perform a job or piece of work for another.
See Locator Operis.
CONFEDERACY, intern. law. An agreement between two or more states or
nations, by which they unite for their mutual protection and good. This term is
applied to such agreement between two independent nations, but it is used to
signify the union of different states of the same nation, as the confederacy of
2. The original thirteen states, in 1781, adopted for their federal
government the " Articles of confederation and perpetual union between the
States," which continued in force until the present constitution of the United
States went into full operation, on the 30th day of April, 1789, when president
Washington was sworn into office. Vide 1 Story on the Const. B. 2, c. 3 and
CONFEDERACY, crim. law. An agreement between two or more persons to do
an unlawful act, or an act, which though not unlawful in itself, becomes so by
the confederacy. The technical term usually employed to signify this offence, is
conspiracy. (q. v.)
CONFEDERACY, equity pleading. The fourth part of a bill in chancery
usually charges a confederacy; this is either general or special.
2. The first is by alleging a general charge of confederacy between the
defendants and other persons to injure or defraud the plaintiff. The common form
of the charge is, that the defendants, combining and confederating together, to
and with divers other persons as yet to the plaintiff unknown, but whose names,
when discovered, he prays may be inserted in the bill, and they be made parties
thereto, with proper and apt words to charge them with the premises, in order to
injure and oppress the plaintiff in ti e premises, do absolutely refuse, &c.
Mitf. Eq. Pl. by Jeremy, 40; Coop. Eq. Pl. 9 Story, Eq. Pl. 29; 1 Mont. Eq. Pl.
77; Barton, Suit in Eq. 33; Van Heyth. Eq. Drafts, 4.
3. When it is intended to rely on a confederacy or combination as a ground of
equitable jurisdiction, the confederacy must be specially charged to justify an
assumption of jurisdiction. Mitf. Eq. Pl. by Jeremy, 41; Story, Eq. Pl. 30.
4. A general allegation of confederacy is now considered as mere form. Story,
Eq. Pl. 29; 4 Bouv. Inst. n. 4169.
CONFEDERATION, government. The name given to that form of government
which the American colonies, on shaking off the British yoke, devised for their
mutual safety and government.
2. The articles of confederation, (q. v.) were finally adopted on the 15th of
November, 1777, and with the exception of Maryland, which, however, afterwards
also agreed to them, were speedily adopted by the United States, and by which
they were formed into a federal bod y, and went into force on the first day of
March, 1781; 1 Story Const. 225; and so remained until the adoption of the
present constitution, which acquired the force of the supreme law of the land on
the first Wednesday of March, 1789. 5 Wheat. R. 420. Vide Articles of
CONFERENCE, practice, legislation. In practice, it is the meeting of
the parties or their attorneys in a cause, for the purpose of endeavoring to
settle the same.
2. In legislation, when the senate and house of representatives cannot agree
on a bill or resolution which it is desirable should be passed, committees are
appointed by the two bodies respectively, who are called committees of
confrence, and whose duty it is, if possible, to -reconcile the differences
3. In the French law, this term is used to signify the similarity and
comparison between two laws, or two systems of law; as the Roman and the common
law. Encyclopedie, h. t.
4. In diplomacy, conferences are verbal explanations between ministers of two
nations at least, for the purpose of accelerating various difficulties and
delays, necessarily attending written communications.