(312) "To give colour" is to admit such a right. Steph. Pl. 202, 203. Colour is of two kinds, implied and expressed. Implied colour is that which is naturally inherent in the structure of all pleas in confession and avoidance. Id. 206. That is, they all admit a right in the opposite party, but at the same time avoid it.* See Confession and avoidance. Express colour is defined to be, a feigned matter pleaded by the defendant in an action of trespass, from which the plaintiff seems to have a good cause or action, whereas he has in truth only an appearance or colour of cause." Bac. Abr. Trespass, (T. 4). Or, in the words of the author of the Termes de la Ley, it is "feigned matter which the defendant or tenant uses in his bar [plea,] when an action of trespass or an assise is brought against him, in which he gives the demandant or plaintiff a show at first sight that he hath good cause of action, where in truth it is no just cause, but only the colour and face of a cause." See this subject further explained in Stephen on Pleading, 206, et seq. Id. 225, (Am. ed. 1824), et seq. 3 Reeves' Hist. Eng. Law, 438. ( 313 ) of assaying silver. Lowndes' Essay upon under the Roman empire, and retained in Coin, 5, cited in Cowell. (314) An earldom. Bract. fol. 84. Still so called in Latin, although an earl has no territorial authority as formerly. Co. Litt. 83 b. 1 Ld. Raym. 13. the Latin interpreters, to the reeve, alder- aforesaid. Mag. Cart. 9 Hen. III. c. 12. man, or chief magistrate of the shire, as deSee Comes. noting the union in these officers of territorial jurisdiction with judicial authority. The Danes introduced the corresponding title of eorle, and the Normans that of comte, or countee; but the former being adopted by the Saxons, seems to have soon superseded the latter. Comites are mentioned in Magna Charta, (c. 14,) and by Bracton, as the highest order of persons in the kingdom, whose title the last named author derives a comitatu sive a societate, and whom he otherwise calls consules, (a consulendo,) as being the king's advisers and associates in the government of the people. Bract. fol. 5 b. Id. fol. 34, 351 b. The deputy of the comes, (earl or count,) was called vice comes, which is still the Latin appellation of sheriff, (the earl's successor in the government of the shire,) as comes is of earl at the present day. 1 Bl. Com. 116. See Sheriff. (315) order must have possessed a great preponderance in them. But see Taylor's Civ. Law, 183. They were also termed comitia calata. Aulus Gellius, Noct. Att. xv. 27. 1 Kent's Com. 518, 519, note. (316) • (317) course is, for the time, established between tical law. A title formerly applied to an them; as for the purpose of burying the officer who exercised spiritual jurisdiction dead, exchanging prisoners, and the like. in distant places of the bishop's diocese ; Grotius, de Jur. Bell. lib. 2, c. 19, § 3. being specially ordained for the purpose of Id. lib. 3, c. 21, § 1. A truce is also a consupplying the bishop's jurisdiction and vention of this kind. Id. ibid. 1 Kent's office in the outplaces of his diocese, or Com. 159. Sir Wm. Scott, The Daifjie, else in such places as were peculiar to the 3 Rob. Adm. R. 140. This phrase is taken bishop, and exempted from the jurisdicfrom Grotius, who borrowed it from Philo. tion of the archdeacon. Termes de la Ley. Grot. de J. B. lib. 2, c. 19, § 3, citing Cowell. Lyndewode Provinc. cap. 1. Philo in Flacc. p. 974 A. War contracts. Contracts or conventions made between the subjects of two powers at war with each other; such as ransom bills, contracts made by prisoners of war for subsistence, and the like. 1 Kent's Com. 104, 105, 169. (318) putes. Id. 59. 1 Tidd's Pr. 41. 2 Reeves' commissions by virtue of which the judges Hist. Eng. Law, 426. See Assise. The of the superior courts sit upon their circuits. recent abolition of assises and other real It is a consequence of the [ancient] comactions in England, has thrown this commission of assise (supra); being annexed mission out of force; and it is accordingly to the offices of the justices by the statute omitted by Mr. Stephen in enumerating the of Westminster, 2, c. 30, and it empowers commissions of the judges. 3 Steph. Com. them to try all questions of fact issuing out 424, note (x). of the courts of Westminster, that are then ripe for trial by jury. 3 Bl. Com. 58, 59. 3 Steph. Com. 424. (319) lish law. A commission under the great seal, constituting the persons to whom it is directed a court of special jurisdiction under the name of commissioners of sewers, (q. v.) 3 Bl. Com. 73. (320) his bail, in which cases it is a minute of the render and commitment. 1 Tidd's Pr. 285. 10 East, 47. (321) perty in such lands, waters, woods, &c. 1 Crabb's Real Prop. 257, 258, § 268.- A privilege which a man may enjoy, of taking a profit, in common with many, in the land of another, as to feed his beasts, &c. Roscoe's Real Act. 366.-A right of taking a profit in the land of another, in common either with the owner or with other persons. * The radical meaning of the term common, in all its applications, is --something enjoyed by more than one person; properly, by many together. Co. Litt. 122 a. Savage, C. J. 10 Wendell's R. 639, 647. Fleta calls it a servitude. Fleta, lib. 4, c. 18, § 3. Common, in English law, is an incorporeal right which lies in grant, originally commencing on some agreement between lords and tenants, which by time has been formed into prescription, and continues good, although there be no deed or instrument to prove the original contract. 4 Co. 37. 1 Crabb's Real Prop. 258, § 268. It is chiefly of four sorts; common of pasture, of piscary,of turbary, and of estovers, (qq. v.) "The ancient books," it has been said, are more explicit on rights of common than the modern; probably on account of the great increase of inclosures." De Grey, C. J. 2 W. Bl. 818. Common is little known or used in this country, and probably does not exist in any of the northern or western parts of the United States which have been settled since the revolution. 3 Kent's Com. 404. But see the Constitution of Illinois, (1818,) art. 8, sect. 8. The term, however, is frequently used to denote a space or tract of ground in a town or other municipal district, set apart for the public use of the inhabitants. 2 Hilliard's Real Prop. 77. See United States Digest, Common. As to the etymology of the word, the Lat. communia is derived by Bracton from cum, with, and una, together, or by transposition, from una, and cum, the word alio (another) or aliis (others) being understood. Bract. fol. 208, 222. Whatever may be said of the correctness of this derivation, it serves to show with great force the original meaning of the term, as deriving its name from the community of interest which arises between the claimant of the right and the owner of the soil, or between the claimant and other commoners entitled to the same right. 2 Steph. Com. 3. Lord Coke says it is so called because it is common to many. Co. Litt. 122 a. Cowell applies the term VOL. I. to the land or water itself of which the use is common to this or that town, &c. And hence, no doubt, the popular meaning of common, as a waste or unenclosed ground; that having been the kind of ground originally subject to the right. 2 Steph. Com. 4. See 10 Mod. 185. (322) 368. 3 Kent's Com. 404. 10 Wendell's R. 648. R. 161. ex Savage, C. J. mon without number; that is, without limit See 25 Penn. St. as to the number of cattle which may be turned on; otherwise called, common withCOMMON BECAUSE OF VICINAGE, out stint. Bract. fol. 53 b, 222 b. 2 Steph. or NEIGHBORHOOD [L. Fr. comon Com. 6, 7. 2 Bl. Com. 34. 3 Id. 238, pur cause de vicinage; L. Lat. communia 239. 2 Wils. 274. 2 Wooddes. Lect. 49. causa vicinitatis,] Is where the inhabitants of two townships which lie contiguous to each other have usually intercommoned with one another, the beasts of the one straying mutually into the other's fields, without any molestation from either. This is, indeed, only a permissive right, intended to excuse what, in strictness, is a trespass in both, and to prevent a multiplicity of suits, and therefore either township may enclose and bar out the other, though they have intercommoned time out of mind. 2 Bl. Com. 33. Co. Litt. 122 a. Bract. fol. 222. This kind of common can be only for cattle levant et couchant upon the lands to which it is annexed, (7 Co. 5; but see 5 Taunt. 244); and it must be used with commonable cattle. 7 Co. 5. 1 Crabb's Real Prop. 271-273, §§ 290292. Roscoe's Real Act. 369. Dr. Wooddesson observes that Blackstone's account of common pur cause de vicinage is not properly a definition, but rather a descriptive example or illustration, there being other occasions when the excuse for trespass may be used. 2 Wooddes. Lect. 50. (323) estate, [in common with the owner or with others]. 2 Bl. Com. 35. It may be claimed, like common of pasture, either by grant or prescription. 2 Steph. Com. 10. 1 Crabb's Real Prop. 274, § 29, et seq. 3 Kent's Com. 404. 10 Wendell's R. 639. This right is not to be confounded (although it sometimes is) with the right of a tenant or lessee to take estovers from off the land let or demised to him. 2 Steph. Com. 10. 2 Chitty's Bl. Com. 35, note. See Estovers. (324) case, and are peculiar to the individual actions in which they are employed.* In other words, they are general forms of pecuniary demand, founded on express or implied promises, to pay money in consideration of a precedent or existing debt. 1 Chitt. Pl. 273. Their principal use is to sustain the plaintiff on the trial of a cause, in the event of a failure to prove his case as stated in the special counts of his declaration. Steph. Pl. 287, (Am. ed. 1824.) 1 Burr. Pr. 130, note. They are most frequently employed in claims for goods sold, work done, money lent, money paid, money had and received, and money due on an account stated, (which last are commonly called the money counts,) and sometimes without any special counts. Sec Indebitatus assumpsit, Quantum meruit, Quantum valebant, Insimul computassent. In England, since the Pleading Rules of Hil. T. 2 Will. IV. the importance of these counts has been considerably diminished, and in some cases they can no longer be resorted to. 1 Chitt. Pl. 339-359, (Perkins' ed. 1847). (325) to its origin, lex non scripta, (the unwritten 89. 15 Illinois R. 263. But to what law,) as distinguished from statute law, or extent the common law has been adopted the lex scripta: being a collection of cusin the federal jurisprudence of the United toms, rules and maxims, which have acquired States, does not seem to be settled. It has the force of law by immemorial usage, reindeed been expressly held, that there can cognized and declared by judicial decisions, be no common law of the United States, and the best evidence of which is to be and that the common law of England is found in the reports of such decisions, and not in force in the United States as a in the standard treatises and abridgments.* federal government. McLean, J. 8 Peters' 1 Bl. Com. 67–73. 1 Steph. Com. 10, 45, R. 658. Blackford, J. 1 Blackf. R. 205. 49, 52. 1 Wooddes. Lect. Introd. lxxxi. According to other authority, the constiLord Bacon places the common law, in tution and laws of the United States are point of worthiness, above the statute law. predicated upon the existence of the comWorks, iv. 326. See Lex non scripta, Conmon law, and that law is appealed to by suetudo Anglicana. the constitution, for the construction and interpretation of its powers. Story, J. 1 Gallison's R. 488, 489, 520. See 3 Wheaton's R. 223. 1 Gallison's R. 20. 1 Kent's Com. 338, 339. United States Digest, Common Law. The general customs of the kingdom, as distinguished from the local customs of particular places. 1 Bl. Com. 67, 74. 1 Wooddes. Lect. ub. sup. See Fleta, lib. 2, c. 2, § 13. That system of law which is administered in the common law courts, as distinguished from the rules prevailing in courts of equity and admiralty. 1 Wooddes. Lect. ibid. In American jurisprudence, the term “common law" is chiefly used in the second and last of the foregoing senses; that is, in contradistinction, on the one hand, to the statute law, and on the other, to equity and admiralty and maritime jurisprudence. Story, J. 6 Peters' R. 102, 110. 1 Kent's Com. 471. Story, J. 3 Peters' R. 446, 447. It is, however, occasionally used to denote statute law also, as where it is said that the English statutes passed before the emigration of our ancestors, being applicable to our situation, and in amendment of the law, constitute a part of our common law. Story, J. 5 Peters' R. 232, 241. The common law is the common jurisprudence of the people of the United States, and was brought with them as colonists from England, and established here, so far as it was adapted to our institutions and circumstances. 1 Kent's Com. 342, 343. Story, J. 2 Peters' R. 137, 144. To that extent, it has been recognized and adopted as one entire system, by the constitutions of some of the states; and it has been assumed by the courts, or declared by statute, with the like modifications, as the law of the land in every state. 1 Kent's Com. 472. Thus it is said that, in the absence of all proof to the contrary, the English common law, when consistent with our institutions, will be presumed to be the rule of decision in a sister state. 6 Alabama R. 631. 25 Id. 540. 4 Blackford's R. Arist. Rhet. I. 14. ** The Latin jus commune, which may be rendered "common law," occurs in the Roman law, at the very commencement of the Institutes and Digests. Inst. 1. 2. 1. Dig. 1. 1. 9. But it is obviously used in the sense of natural law, common to all men. The κοινὸς νόμος of the Greeks had the same signification. Tayl. Civ. Law, 100. The expression Kovos vópos occurs in the seventy-ninth Novel, c. 2, in the more limited sense of "a common law" or rule for the whole empire. But the term "Common law," as used in English jurisprudence, is generally agreed to be of English origin, being by some writers supposed to be a translation of the Saxon foleright, or folcrihte, (q. v.) mentioned in the laws of King Edward the Elder, expressing the same equal right, law or justice due to persons of all degrees. 1 Wooddes. Lect. lxxxi. Lambard, apud Spelman, voc. Jus Commune. 1 Bl. Com. 65, 67. Lord Mansfield, C. J. 4 Burr. 2343. Spelman, however, considers it as applied, for the first time, to that body of laws compiled by King Edward the Confessor, (or St. Edward, as he is otherwise styled,) from the three systems which had previously prevailed in different districts of England, viz. the Mercen lage, West Saxon lage, and Dane lage; denoting, by way of distinction from these, a law common to all the realm. Spelman, voc. Lex Anglorum. Ranulph. Cestriens. lib. 1, c. 50, cited ibid. 1 Bl. Com. 67. Sir Matthew Hale adopts the opinion that it is called the common law, because it is the common municipal law or rule of justice (326) in the kingdom. Hale's Hist. Com. Law, ch. Bracton, and the treatises of Britton, Fleta 3. Lord Coke observes that the common and Thornton, founded upon them, strongly law is sometimes called right, (as in Magna advocating the opinion that it was made up, Charta,) sometimes common right, and to a very great extent, of materials derived sometimes common justice. Co. Litt. 142 a. from the Roman law. 1 Spence's ChanThe term common law has also been cery, 119–127. A principal argument applied to the judicial systems of other narelied on in support of this view, is the petions, such as the Lombards and the Roculiar character of the important work of mans of the lower ages. Spelman, voc. Bracton; Mr. Spence contending not only Jus commune. The land's lagh of Sweden that that writer borrowed more largely has been considered of nearly equivalent from the Corpus Juris than his direct refermeaning. 1 Bl. Com. 66. The Spanish ences appear to indicate, but also that what fuero, (q. v.) was a kind of common law. he did adopt was used not for the mere The term common law is used in Germany, purpose of illustration, but because it was to denote the subsidiary law common to the considered to be the law of the time. Id. several German states, in opposition to the 123-127, 132. This whole view, howlaws of the individual states. Its constitever, together with the arguments in its supuent parts are the German law, the Roman port, seems to have been long since met and law, the Canon law, and the Lombard refuted by Selden. Diss. ad Fletam, ch. feudal law. 1 Mackeld. Civ. Law, 83, § 94, 7, sect. 7. Id. ch. 8, sect. 1. Id. ch. 9, Kaufmann's note. In Scotland, the term sect. 1. Indeed, the observation of Braccommon law is used by many writers, and ton himself, on the first page of his work, in some acts of parliament, to signify the that the law of England, which he proRoman law. But, in its proper acceptation, posed to illustrate, was an unwritten law, it refers to the ancient usages of the kingcomposed, in a great degree, of customs, dom, founded on the feudal customs and which differed in different places, while it the unwritten laws. Bell's Dict. The civil tends to support the opinion of Blackstone law is sometimes called the common law and the older writers before alluded to, (derecho comun) of Spain. White's New seems wholly at variance with Mr. Spence's Recop. b. 2, tit. 13, ch. 1, § 5. idea that the old local and customary laws As to the origin of the common law had then been abrogated, and a new sysitself, various opinions have been entertained tem introduced. 1 Spence's Chancery, 125, by the best writers. Sir William Black122. As an evidence of the extent to stone, following Lord Coke and Sir Matthew which the last named writer has carried Hale, treats it as being essentially of Saxon his theory, it may be observed, that among origin, its ultimate sources having existed the doctrines and regulations of the common (though not now distinguishable,) in the law referred by him to a Roman original, various local customs and usages which are the doctrine of entails, the modes of prevailed among the aboriginal Britons, or conveyance by fine and recovery, the forwere introduced by the invading Romans, mality of livery of seisin, the proceeding by Saxons and Danes, while they successively inquest of office, the terms and vacations of bore sway or maintained a footing on the the courts, imparlances and essoins in acisland. 1 Bl. Com. 64-67. Mr. Stephen tions, several of the old real actions, tois of opinion that the ancient law of Nor-gether with much of the system of special mandy has a claim to be considered another parent of the common law, and one from which it has inherited some of its most remarkable features. 1 Steph. Com. 44. And see Bacon's Works, iv. 365. Mr. Hallam inclines to ascribe the present common law to a date not much antecedent to the publication of Glanville, though he admits some features of it to have been distinguishable in Saxon times. 2 Hallam's Mid. Ages, 466-468. Mr. Spence descends still lower, and fixes the origin of the common law about the period of the composition of the works of Glanville and pleading; and even the feudal system is traced to the Roman relation of patron and client. Id. 21, 36, 139, 142, 143, 178, 225, 229, 235, 280, note (e). (327) the public, being an annoyance to the whole community in general; as distinguished from a private nuisance, which is confined in its effects to particular individuals.* 3 Bl. Com. 215. İd. 5. 4 Id. 167. 4 Steph. Com. 294. The obstructing of highways, bridges and public rivers, and the carrying on of offensive or dangerous trades or manufactures, are examples of common nuisances. See Nuisance. (328) ployed as a contrivance to elude the statute De Donis, and as a means of barring estates tail, and becoming on this account more and more general, they were finally recognized as a regular mode of conveyance; retaining at the same time, however, all the forms of a judicial proceeding as they had when they were real actions. Crabb's Hist. Eng. Law, 390, 541. 2 Bl. Com. 117. 1 Steph. Com. 235. 4 Kent's Com. 13, 497. Common recoveries were formerly in use in some of the United States, but have generally become obsolete, where they have not been expressly abolished. They were abolished by statute in New-Jersey in 1799, and in New-York by the Revised Statutes. 2 R. S. [343,] 265, $24. See United States Digest, Common Recovery. (viz. the crier of the court,) acted as vouchee in them all. 2 Bl. Com. 358, 359. See Vouchee. ( 329 ) liament; the house of commons. 160. Id. tre des franchises de Engleterre grantee a tote la commune d'Engleterre; the great charter of liberties of England, granted to all the people of England. Artic. sup. Chart. (330) (331) ( 332 ) the court or jury may compare two docu-Set-off. The meeting of two debts due by ments together, when properly in evidence, two parties, where the debtor in the one and from that comparison form a judgment debt is the creditor in the other, that is to upon the genuineness of the handwriting say, where one person is both debtor and or the identity of the writers. 16 Georgia R. 521. ( 333 ) by] him. Inst. 4. 1, 13. Bract. fol. 103 b. Competit assisa; an assise lies. Id. fol. 25. Competunt hæredi duo remedia; the heir has two remedies. Id. fol. 219. Hence the modern phrase, competency of actions. Supra. To be proper or available; as a pleading. Competit exceptio-replicatio, &c. Bract. fol. 25, 26. ( 334 )