CONSTRUCTIVE. That which is interpreted.
2. Constructive presence. The commission of crimes, is, when a party is not
actually present, an eye-witness to its commission but, acting with others,
watching while another commits the crime. 1 Russ. Cr. 22.
3. Constructive larceny. One where the taking was not apparently felonious,
but by construction of the prisoner's acts it is just to presume he intended at
the time of taking to appropriate the property feloniously to his own use; 2
East, P. C. 685; 1 Leach, 212; as when he obtained the delivery of the goods
animo furandi. 2 N. & M. 90. See 15 S. & R. 93; 4 Mass. 580; I Bay,
4. Constructive breaking into a house. In order to commit a burglary, there
must be a breaking of the house; this may be actual or constructive. A
constructive breaking is when the burglar gains an entry into the house by
fraud, conspiracy, or threat. See Burglary, A familiar instance of constructive
breaking is the case of a burglar who coming to the house under pretence of
business, gains adiuittance, and after being admitted, commits such acts as, if
there had been an actual brooking, would have amounted to a burglary Bac. Ab.
Burglary, A. See 1 Moody Cr. Cas. 87, 250.
5. Constructive notice. Such a notice, that although it be not actual, is
sufficient in law; an example of this is the recording of a deed, which is
notice to all the world, and so is the pendancy of a suit a general notice of an
equity. 4 Bouv. Inst. n. 3874. See Lis pendens.
6. Constructive annexation. The annexation to the inheritance by the law, of
certain things which are not actually attached to it; for example, the keys of a
house; and heir looms are constructively annexed. Shep. Touch. 90; Poth- Traits
des Choses, 1.
7. Constructive fraud. A contract or act, which, not originating in evil
design and contrivance to perpetuate a positive fraud or injury upon other
persons, yet, by its necessary tendency to deceive or mislead them, or to
violate a public or private confidence, or to impair or injure public interest,
is deemed equally reprehensible with positive fraud, and therefore is prohibited
by law, as within the same reason and mischief as contracts and acts done malo
animo. 1 Story, Eq. 258 to 440.
CONSUETUDINES FEUDORUM. The name of an institute of the feudal system
and usages, compiled about the year 1170, by authority of the emperor Frederic,
surnamed Barbarossa. Ersk. Inst. B. 2, t. 3, n. 5. CONSUL, government, commerce.
Consuls are commercial agent's appointed by a government to reside in the
seaports of a foreign country, and commissioned to watch over the commercial
rights an@ privileges of the nation deputing them. A vice-consul is one acting
in the place of a consul.
2. Consuls have been greatly multiplied. Their duties and privileges are now
generally limited, defined and secured by commercial treaties, or by the laws of
the countries they represent. As a general rule, it may be laid down that they
represent the subjects or citizens of their own nation, not otherwise
represented. Bee, R. 209 3 Wheat. R. 435; 6. Wheat. R., 152; 10 Wheat. 66; 1
Mason's R. 14.
3. This subject will be considered by a view, first, of the appointment,
duties, powers, rights, and liabilities of American consuls; and secondly, of
the recognition, duties, rights, and liabilities of foreign consuls.
4. - 1. Of American consuls. First. The president authorized by the
Constitution of the United States, art. 2, s. 2, el. 3, to nominate, and, by and
with the advice and consent of the senate, appoint consuls.
5. - Secondly. Each consul and vice-consul is required, before he enters on
the execution of his office, to give bond, with such sureties as shall be
approved by the secretary of state, in a sum not less than two thousand nor more
than ten thousand dollars, conditioned for the true and faithful discharge of
the duties of his office, and also for truly accounting for all moneys, goods
and effects which may come into his possession by virtue of the act of 14th
April, 1792, which bond is to be lodged in the office of the secretary of State.
Act of April 14, 1792, sect. 6.
6. - Thirdly. They have the power and are required to perform many duties in
relation to the commerce of the United States and towards masters of ships,
mariners, and other citizens of the United States; among these are the authority
to receive protests or declarations which captains, masters, crews, passengers,
merchants, and others make relating to American commerce; they are required to
administer on the estate of American citizens, dying within their consulate, and
leaving no legal representatives, when the laws of the country permit it; [see 2
Curt. Ecc. R. 241] to take charge and secure the effects of stranded American
vessels in the absence of the master, owner or consignee; to settle disputes
between masters of vessels and the mariners; to provide for destitute seamen
within their consulate, and send them to the United States, at the public
expense. See Act of 14th April, 1792; Act of 28th February, 1803, ch. 62; Act of
20th July, 1840, Ch. 23. The consuls are also authorized to make certificates of
certain facts in certain cases, which receive faith and credit in the courts of
the United States. But those consular certificates are not to be received in
evidence, unless they are given in the performance of a consular function; 2
Cranch, R. 187; Paine, R. 594; 2 Wash. C. C. R. 478; 1 Litt. R. 71; nor are they
evidence, between persons not parties or privies to the transaction, of any
fact, unless, either expressly or impliedly, made so by statute. 2 Sumn. R.
7. - Fourthly. Their rights are to be protected agreeably to the laws of
nations, and of the treaties made between the nation to which they are sent, and
the United States. They are entitled, by the act of 14th April, 1792, s. 4, to
receive certain fees, which are there enumerated. And the consuls in certain
places, as London, Paris, and the Barbary states, receive, besides, a
8. - Fifthly. A consul is liable for negligence or omission to perform,
seasonably, the duties imposed upon him, or for any malversation or abuse of
power, to any injured person, for all damages occasioned thereby; and for all
malversation and corrupt conduct in office, a consul is liable to indictment,
and, on conviction by any court of competent jurisdiction, shall be fined not
less than one, nor more than ten thousand dollars; and be imprisoned not less
than one nor more than five years. Act of July 20, 1840, ch. 23, cl. 18. The act
of February 28, 1803, ss. 7 and 8, imposes heavy penalties for falsely and
knowingly certifying that property belonging to foreigners is the property of
citizens of the United States; or for granting a passport, or other paper,
certifying that any alien, knowing him or her to be such, is a citizen of the
9. The duties of consuls residing on the Barbary coast are prescribed by a
particular statute. Act of May 1, 1810, S. 4.
10. - 2. Of foreign consuls. First. Before a consul can perform any duties in
the United States, he must be recognized by the president of the United States,
and have received his exequatur. (q. v.)
11. - Secondly. A consul is clothed only with authority for commercial
purposes, and he has a right to interpose claims for the restitution of property
belonging to the citizens or subjects of the country he represents; 10 Wheat. R.
66; 1 Mason R. 14; See, R. 209; 6 Wheat. R. 152; but he is not to be considered
as a minister or diplomatic Agent, entrusted by virtue of his office to
represent his sovereign in negotiations with foreign states. 3 Wheat, R.
12. - Thirdly. Consuls are generally invested with special privileges by
local laws and usages, or by international compact; but by the laws of nations
they are not entitled to the peculiar immunities of ambassadors. In civil and
criminal cases, they are subject to the local laws in the same manner with other
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 act 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.
13. - 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.
14. During the middle ages, the term consul was sometimes applied to ordinary
judges; and, in the Levant, maritime judges are yet called consuls. 1 Boul.
Paty, Dr. Mar. Tit. Prel. s. 2, p. 57.
15. Among the Romans, consuls were chief magistrates who were annually
elected by the people, and were invested with powers and functions similar to
those of kings. See, generally, Abbott on Ship. 210; 2 Bro. Civ. Law, 503; Merl.
Repert. h. t.; Ayl. Pand. 160; Warden on Consuls; Marten on Consuls; Borel, de
l'Origine, et des Fonctions des Consuls; Rawle on the Const. 222, 223; Story on
the Const. 1654 Serg. Const. Law, 225; Azuni, Mar. Law, part 1, c. 4, art. 8,
CONSULTATION, practice. A conference between the counsel or attorneys
engaged on the same side of a cause, for the purpose of examining their case,
arranging their proofs, and removing any difficulties there may be in their
2. 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 cross-examination 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. 3 Chit. Pr.
CONSULTATION, Eng. law. The name of a 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, where upon this writ issues. T. de la Ley.
CONSULTATION, French law. The opinion of counsel, on a point of law
submitted to them. Dict. de Jur. h. t.
CONSUMATE. What is completed. A right is said to be initiate, when it
is not complete; and when it is perfected, it is consummated.
CONSUMMATION. The completion of a thing; as the consummation of
marriage; (q. v.) the consummation of a contract, and the like.
2. A contract is said to be consummated, when everything 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 took place, in order to decide by what
law it is to be governed.
3. 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. 843. Vide Conflict of Laws;,
Inception; Lex Loci Contractus; Lex Fori; Offer.
CONSUMMATION OF MARRIAGE. The first time that the husband and wife
cobabit together, after the ceremony of marriage has been performed, is thus
2. 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. Diseases which are capable of
being transmitted by mediate or immediate contact.
2. Unlawfully and injuriously to expose persons infected with the smallpox or
other contagious disease in the public streets where persons are passing, or
near the habitations of others, to their great danger, is indictable at common
law. 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 Pl. Cor. 422. Vide 4 M. & S. 73, 272; Dane's Ab. h.
CONTEMPORANEOUS EXPOSITION. The construction of a law, made shortly
after its enactment, when the reasons for its passage were then fresh in the
minds of the judges, is considered as of great weight: contemporanea expositio
est optima et fortissima in lege. 1 Cranch, 299.
CONTEMPT, crim. law. A wilful disregard or disobedience of a public
2. By the Constitution of the United States, each house of congress may
determine the rules of its proceeding's, punish its members for disorderly
behaviour, and, with the concurrence of two-thirds, expel a member. The same
provision is substantially contained in the constitutions of the several
3. 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. 204, 230, 231 and, it seems this power
cannot be exerted beyond imprisonment.
4. 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 11 Co. 43 b.; 8 Shepl. 550; 5 Ired. R.
5. 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 March 2, 1831. 4 Sharsw. cont.
of Stor. L. U. S. 2256. See Oswald's Case, 4 Lloyd's Debates, 141,. et seq.
6. 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 Com. 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 way be considered as the establisbed doctrine
equally in England as in this country. 3 Wils. 188 14 East, R. 12 Bay, R. 182 6
Wheat. R. 204 7 Wheat. R. 38; 1 Breese, R. 266 1 J. J. Marsh. 575; Charlt. R.
136; 1 Blackf. 1669 Johns. 395 6 John. 337.
CONTENTIOUS JURISDICTION, eccl. 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. 3 Bl. Com. 66.
CONTESTATIO LITIS, civil law. The joinder of issue in a cause. Code of
Pr. of Lo. art. 357.
CONTESTATION. The act by which two parties to an action claim the same
right, or when one claims a right to a thing which the other denies; a
controversy. Wolff, Dr. de la Nat. 762.
CONTEXT. The general series or composition of a law, contract,
covenant, or agreement.
2. When, there is any obscurity in the words of an agreement or law, the
context must be considered in its construction, for it must be performed
according to the intention of its framers. 2 Cowen, 781,; 3 Miss. 447 1
Harringt. 154; 6 John. 43; 5 Gill & John. 239; 3 B. & P. 565; 8 East, 80
1 Dall. 426; 4 Dall. 340; 3 S. & R. 609 See Construction;
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. It. 110; Co. Bankr. Laws, 245; 7 Ves. It. 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 DAMAGES. Those given where the issues upon counts to which
no demurrer has been filed, are tried, before demurrer to one or more counts in
the same declaration has been decided. 1 Str. 431.
CONTINGENT ESTATE. A contingent estate depends for its effect upon an
event which may or may not happen: as an estate limited to a person not in esse
or not yet born. Crabb on Real Property, b. 3, c. 1, sect. 2. 946.
CONTINGENT REMAINDER, estates. An estate in remainder which 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. 2, Bouv. Inst. n. 1832. Vide Remainder.
CONTINGENT USE, estates. 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.
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 vares, 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 Inst. 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.
2. If these continuances are omitted, the cause is thereby discontinued, and
the defendant is discharged sine die, (q. v.) 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.
3. 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 Is a
discontinuance can never be objected to pendente placito, so after the judgment
it is cured by the statute of jeofails. Tidd's Pr. 628, 835.
4. Before the declaration the continuance is by dies datus prece partium;
after the declaration and before issue joined, by imparlance; after issue joined
and before verdict, by vicecomes non misit breve; and after verdict or demurrer
by curia advisare vult. 1 Chit. Pl. 421, 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. Pl. 31; 1 Ch. Pr. 778, 779.
CONTINUANDO, plead. The Dame 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. 1 Wms. Saund. 24, n. 1.
2. There is a difference between he continuando and the averment diversis
diebus et 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, are distinct and unconnected,
See Gould, Pl. ch. 3, 86, et seq.; Ham. N. P. 90, 91 Bac. A. Trespass, I 2, n.
CONTINUING CONSIDERATION. A continuing consideration is one which in
point of time remains good and binding, although it may have served before to
Support a contract. 1 Bouv. Inst. n. 628; 1 Saund. 320 e, note (5.)
CONTINUING DAMAGES. Those which are continued at different times, or
which endure from one time to another. If a person goes upon successive day's
and tramples the grass of the plaintiff, he commits continuing damages; or if
one commit a trespass to the possession, and it is in fact injurious to him who
has the reversion or remainder, this will be continuing damages. In this last
case the person in possession may have an action of trespass against the wrong
doer to his possession, and the reversioner has an action against him for an
injury to the reversion. 1 Chit. Pr. 266, 268, 385; 4 Burr. 2141 , 3 Car. &
CONTRA. Over; against; opposite to anything: as, such a case lays down
a certain principle; such other case, contra.
CONTRA BONOS MORES. Against good morals.
2. All contracts contra bonos mores, are illegal. These are reducible to
Several classes, namely, those which are, 1. lncentive 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 honor of a female, 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.
3. - 2. Indecent or mischievous consideration. An obligation or engagement
prejudicial 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.
4. - 3. Gaming. The statutes against gaming render all contracts made for the
purpose of gaming, void. Vide Gaming; Unlawful; Void.
CONTRA FORMAM STATUTI. Contrary to the form of the statute.
2.- 1. When one statute prohibits a thing and another gives the penalty, i n
an action for the penalty, the declaration should conclude contra fornam
statutorum. Plowd. 206; 2 East, R. 333; Esp. on Pen. Act. 111; 1 Gallis. R. 268.
The same rule applies to informations and indictments. 2 Hale, P. C. 172; 2
Hawk. c. 25, 117 Owen, 135.
3. - 2. But where a statute refers to a former one, and adopts and, continues
the provisions of it, the declaration or indictment should conclude contraformam
statuti. Hale, P. C, 172; 1 Lutw. 212.
4. - 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 statuti. Yelv. 116; Cro. Jac. 187 Noy, 125, S. C.; Rep.
temp. Hard. 409 Andr. 115, S. C.; 2 Saund. 377.
5. - 4. When the act prohibited was not an offence or ground of action at
common law, it is necessary both in criminal and civil cases to conclude against
the form of the statute or statutes. 1 Saund, 135, c.; 2 East, 333; 1 Chit. Pl.
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.
6. - 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 being merely cumulative. 2 Inst.
200; 2 Burr.-803; 4 Burr. 2351; 3 Burr. 1418; 2 Wils. 146; 3 Mass. 515.
7. - 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.
8. - 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, 3.
9. - 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. 128 2 Yerg. 390; 1 Hawks. 192; 3 Conn. 1 11 Mass.
280; 5 Greenl. 79.
CONTRA PACEM, pleadings. Against the peace.
2. 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.. 1O58.
3. 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. Pl. 375, 6 vide Arch. Civ. Pl. 169; 5 Vin. Ab. 557 Com. Dig. Action upon
the case, C 4 Pleader, 3, M 8; Prohibition, F 7.
CONTRABAND, mar. law. Its most extensive sense, means all commerce
which is carried on contrary to the laws of the state. This term is also used to
designate all kinds of merchandise which are used, or transported, against the
interdictions published by a ban or solemn cry.
2. The term is usually applied to that unlawful 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.
3. 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 tbose provisions be in a rude
or manufactured state; for all articles, in such examinations, are treated with
greater indulgence in their natural condition than when wrought tip 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. 1 Rob. Rep. 1 89. See Vattel, b. 3, c. 7 Chitty's L. of
Nat. 120; Marsh. Ins. 78; 2 Bro. Civ., Law, 311; 1 Kent. Com. 135; 3 Id. 215. 4.
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, Repert. h. t. 1 Kent, Com. 135; Mann.
Comm. B. 3, c. 7; 6 Mass. 102; 1 Wheat. 382; 1 Cowen, 56 John. Cas. 77, 120.
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 to do or omit to do a certain act; or, a
contract is an act which contains a perfect obligation. In its more confined
sense, it is an agreement between two or more persons, concerning something to
be, done, whereby both parties are hound 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.
2. 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 BI . Com. 443.
3. Express contracts are of three sorts 1. BI parol, or in writing, as
contradistinguished from specialties. 2. By specialty or under seal. 3. Of
4. - l. A parol contract is defined to be a bargain or voluntary agreement
made, either orally or in writing not under, seal, upon a good consideration,
between two or more persons capable of contracting, to, do a lawful act, or to
omit to do something, the performance whereof is not enjoined by law. 1 Com.
Contr. 2 Chit. Contr. 2.
5. 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; 1 B. & A. 681 1 Pick. R. 278. The agreement must, in
general, be obligatory on both parties, or it binds neither. To this rule there
are, however, some 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.
6. - 2d. 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 under seal, and must exist, although the contract be
reduced to writing. 7 T. R. 350, note (a); 2 Bl. Coin. 444. See this Dict.
Consideration; Fonb. Tr. Eq. 335, n. (a) Chit. Bills. 68.
7. - 3d. There must be a thing to be done, wbicb 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. Id. 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.
8. - 2. The second kind of express contracts are specialties, or those which
are made under seal, as deeds, bonds, and the like; they are not merely written,
but delivered over by the party bound. The solemnity and deliberation with
whicb, 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 a specially, 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. 438; 3 Bingh. 111, 112; 1 Fonb. Eq, 342, note When, a
contract by specialty has been changed by a parol agreement, the whole of it
becomes a parol contract. 2 Watts, 451; 9 Pick. 298; see 13 Wend. 71.
9. - 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, cutered into with the intervention of
some public authority. 2 Bl. Com. 465 . See Authentic Facts.
10. Implied contracts are such as reason and justice dictates, 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 labor is
worth; see Quantum merwit; 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; Id. Agreement.
11. 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. Id.
12. Contracts, considered in relation to their substance, are either
commutative or independent, principal or accessory.
13. 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. 17GI.
14. Independent contracts are those in which the mutual acts or proniises
have no relation to each other, either as ecluivalents or as considerations. Id.
15. A principal contract is one entered into by both parties, on their
accounts, or in the several qualities they assume.
16. 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. Id. art. 1764. Poth. Obl. p. 1, c. 1, s. 1, art. 2, n. 14.
17. Contracts, considered inrelation 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 benefits be of a
pecuniary nature. Id. 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. Id. art. 1767.
18. Considered in relation to their effects, contracts are either certain or
hazardous. A contract is certain, when the thing to be done is supposed to
depend on the will of the party, or when, in the usual course of events, it must
happen in the manner stipulated. It is hazardous, when the performan ce.of that
which is one of its objects, depends on an uncertain event. Id. art. 1769. 19.
Pothier, in his excellent treatise on Obligations, p. 1, c. 1, s. 1, art. 2,
divides contracts under the five following heads:
20.- 1. Into reciprocal and unilateral.
21. - 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.
22.-3. Into-first, 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.
23.-2d. Contracts of beneficence, which are those by which only one of the
contracting parties is benefited, as loans, deposit and mandate. 3d. 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,
24. - 4. Into principal and accessory.
25. - 5. Into those which are subjected by the civil law to certain rules and
forms, and those which ate regulated by mere natural justice. See, generally, as
to contracts, Bouv. Inst. Index, h. t.; 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; Vin. 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. Pl. 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 Exchange; Buyer; Commodate; Condition; Consensual contract; Conjunctive;
Consummation; Construction; Contracto of benevolence; Covenant; Cumulative
contracts; Debt; Deed; Delegation. Delivery; Discharge Of a contract;
Disjunctive; Equity of a redemption; Exchange; Guaranty; Impairing the
obligation of contracts; Insurance; Interested contracts; Item;
Misrepresentation; Mortgage; Mixed contract; Negociorum gestor; Novation;
Obligation; Pactum constitutae, pecuniae; Partners; Partnership; Pledge;
Promise; Purchaser; Quasi contract; Representatian; Sale; Seller; Settlement;
Simple contract; Synallagmatic contract; Subrogation; Title; Unilateral
CONTRACT or BENEVOLENCE, Civil law. One which is made for the benefit
of only one of the contracting parties; such as loan for use, deposit, and
mandate. Poth. Obl. n. 12. See Contracts.
CONTRACTION. An abbreviation; a mode of writing or printing by which
some of the letters of a word are omitted. See Abbreviations.
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.