(335) ing the investiture of fiefs, where the fact was disputed. Feud. Lib. 1, tit. 4, § 3. Id. titt. 10, 26, 28. Lib. 2, tit. 33, § 2. They were also termed consacramentales and conjuratores. Spelman, voc. Lex, Legem vadiare. (336) (a troublesome, disturbant sort of men). though he did not commit the theft. Id. 3 Inst. 188. ibid. (337) phrases non fuit negatum, and non fuit dedictum, (was not denied). Latch, 149. Dyer, 14. (338) (339) English in this sense, being exclusively ap- form of condemnare, to condemn. Bract. plied to persons. fol. 128. lish. Concurrens, concurrentes; concurrent. CONDERE. Lat. To make or estabCum quis plures habeat actiones concurTestamentum condere; to make a rentes de eadem re; where one has several will. Bract. fol. 60 b. Condidit; he made concurrent actions in respect of the same (a will). The name of a plea in the Engmatter. Bract. fol. 114. The correspondlish ecclesiastical courts. ing English phrases "concurrent actions," "concurrent remedies," are in constant use. (340) 13. 1. Cod. 4. 8. Heinecc. El. Jur. Civ. lib. 4, tit. 1, § 1062. Bract. fol. 103 b. ( 341 ) Com. 125. tion I. (c). cedent or words, the law tacitly annexes hereto a se- Com. 154. cret condition, that the grantee shall duly execute his office. Litt. sect. 328, 378. 2 Bl. Com. 152. 2 Crabb's Real Prop. 804, § 2146. Termes de la Ley. Anciently also called a condition covert. Id. So it was a tacit condition annexed to every ten ancy, that the tenant should not do any act to the prejudice of the reversion. 4 Kent's Com. 122. 1 Steph. Com. 278. 4 Kent's United States Digest, CondiWhether a condition be presubsequent, does not depend upon any precise form of words, or their place in the deed, but must be determined by the whole instrument. 1 Wisconsin R. 527. 2 Selden's R. 74, 80. The prece dency of conditions must depend on the order of time in which the intent of the transaction requires their performance. Id. ibid. Conditions subsequent in deeds are not favored. 15 Georgia R. 103. Co. CONDITION INHERENT. A con- (342) which have been made with us unjustly and against the law of the land, shall be wholly remitted. Mag. Cart. Johan. c. 55. (343) to hire.] Hired. Res conducta; conductum; a thing hired. Bract. fol. 62. ( 344 ) (345) churches, and read twice a year to the people; and sentence of excommunication is directed to be as constantly denounced against all those that, by word, deed or counsel, act contrary thereto, or in any degree infringe it. 1 Bl. Com. 128. It is in the form of a charter or letters patent. Crabb's Hist. Eng. Law, 173. 2 Reeves' Hist. 101, 102. Barringt. Obs. Stat. 173. ( 346 ) feiture, and cannot exist without it, and therefore perhaps properly includes it; but a forfeiture may take place without confiscation following, as where it is waived or remitted.* See To confiscate. ( 347 ) court, shall have leave for that purpose, ex- for the respective parties, as introductory cept in cases of felonies. Britt. c. 74. to the argument of it at length. Dig. 50. CONGÉ D'EMPARLER. L. Fr. [L. 17. 1. Aul. Gell. Noct. Att. lib. 5, c. 10, Lat. licentia loquendi.] In old English § 9. Calv. Lex. Answering somewhat to practice. Leave to imparl (or emparl). the modern term "opening." Yearb. M. 11 Hen. VI. 6. CONGÉ D'ESLIRE, (or D'ELIRE.) L. Fr. [Lat. venia eligendi.] In English law. Leave to elect. The royal license or permission, sent to a dean and chapter, when any bishopric becomes vacant, empowering them to proceed to the election of a new bishop. Termes de la Ley. Cowell. Blount. 1 Bl. Com. 379, 382. 3 Steph. Com. 61, 67. ( 348 ) 8, § 34, et seq. Applied to rights. Bell's Dict. Connected. Applied to persons. voc. Conjunct person. Id. (349) Equity, 210. Ersk. Inst. b. 3, tit. 8, § 14. 2 Bl. Com. 242. Id. 48. In Scotch law, conquest has always been distinguished from heritage or succession. Bell's Dict. voc. Succession. querra p' brefe de droit; the eldest neverthe- estate out of the common course of inheriless shall recover by writ of right. Id. c. 119. tance. Craig de Jur. Feod. lib. 1, tit. 10, (350) was warlike subjugation by force of superior military tactics." Wharton's Lex. voc. Tenure. But, whatever may be said of the historical fact, the etymology of the term itself, and its acknowledged use in feudal, Norman and early English law, demonstrate its original meaning to have been acquisition, without reference to the exercise of superior military force. The opinion of Blackstone is sustained by the high authority of Sir Henry Spelman, who has conclusively shown that "victory" and "military subjugation" are comparatively modern senses, which the word has illegitimately (ceu per adulterium,) acquired. Gloss. vocc. Conquestus, Questus. peFrom what cause, and by what process the term conquest came to lose its original, and acquire its modern sense, or, in other words, how and when it came to be disused in English law, and exclusively adopted as a word in ordinary language, cannot now be easily explained. Spelman adopts the opinion that, as the enforcement of the Conqueror's acquired right to the crown was accomplished by means of the signal victory obtained over Harold and the Saxons, the ideas of victory and subjugation become so strongly attached to his culiar title of Conquestor as gradually to obscure, and finally to supplant its original and proper meaning. That conqueror continued to be used after the Norman invasion in its technical sense, appears from the passage already quoted under that word, from the Monasticon Anglicanum. That the verb conquerer was used in the same sense as late as the time of Edward I. will appear from the passages given from Britton, under that word. As a general head of law, however, the same writer expresses the idea of acquisition by the act of the party, by the word purchas, the English form of which is still retained in modern law, in the same sense. Britt. cc. 33, 35, 36, 38. Conquest is used in the sense of subjugation, by King Henry IV. in his declaration of thanks on being made king. 1 How. St. Trials, 154. Lord Bacon appears to use the word in both senses, in the following passage: "When any king obtaineth by war any country whereunto he hath right by birth, he is ever in upon his ancient right, not upon his purchase by conquest." Arg. Case of the Postnati of Scotland, Works, iv. 356. In the Scotch law, the word conquest has come down to modern times, in its full original sense as a term of jurisprudence. See supra. An "heir of conquest" is said to be so called "because his right of succession is confined to the subjects which the ancestor himself had acquired or conquished by some singular title." Ersk. Inst. b. 3, tit. 8, § 14. See Heir of conquest. (351) (352) ( 353 ) st. 1, c. 6. 4 Bl. Com. 69.) Termes de la Ley. Cowell. These offences, when committed at sea, they were empowered to hear and determine according to the ancient marine law, then practised in the admiral's court; when committed within the body of a county, to determine, with two men learned in the law of the land, according to that law. 4 Bl. Com. 69. Their powers were afterwards given by statute 29 Hen. VI. c. 2, to the lord chancellor, associated with either of the chief justices. And see Stat. 31 Hen. VI. c. 4, which is still in force. 4 Bl. Com. 70. 4 Steph. Com. 245. (354) (355) ascribing it to the ancient kings of Arragon; others contending, with Azuni, that it was framed at Pisa, in Italy. The precise date of its compilation is not known, but it seems to be certain that it was completed and in force as early as the eleventh century, and that during a succession of the ages that followed, it was received and obeyed as law by all the nations of Southern Europe. It has formed the basis of most of the subsequent collections of maritime laws, and is supposed to have still the force of law in the tribunals of Italy. 1 Duer on Ins. Introd. Discourse, lect. ii. 3 Kent's Com. 10-12. Story, J. 3 Story's R. 465, 479. ( 356 ) ( 357 ) of trying for high treason, and the especial right of regulating all trials by combat, tilts, tournaments, and other feats of chivalry. Id. 1 Bl. Com. 355. He was one of the great officers of state who sat in the Aula Regis; and, together with the lord mareschal, held also a separate court called the court of chivalry. 3 Bl. Com. 68. 4 Inst. 123. See Keilw. 170 b. Norman Conquest, with a regular gradation in the realm, which could not be deterof rank, from the lord high constable to the mined by the common law. Spelman, voc. constable of the smallest franchise, uniting Constabularius. He had also the power military with civil powers; and that they were, in each case, commanders of the levies of their particular districts, in case of domestic tumults, or the incursions of robbers. Willcock's Office of Constable, Introd. On the whole, there seems little doubt that the office of constable, though partaking of many of the characteristics of the ancient Saxon peace officers, (the tithing man being little distinguishable from the petty constable,) is essentially of Norman origin. The military or half military character which has always belonged to it in England, (a decidedly Norman feature, as well as the name itself,) makes strongly in aid of this opinion. Under the statute of Winchester, it seems to have differed little from that of a modern militia inspector, and it is worthy of remark that the enrolment of the militia, providing them with quarters when called out, &c., form to this day in England part of the duties of a constable. Stat. 52 Geo. III. c. 38. See 12 Mod. 254. 5 Id. 427. Willcock's Off. Constable, 76, 78, 80. Dr. Wooddesson concurs in the opinion of Blackstone, that the officers now called constables derived that appellation at or after the statute of Winchester; although it is his conclusion that the office itself, in substance and effect, subsisted from immemorial antiquity in the English laws. 1 Wooddes. Lect. 152, 153. The opinion of Sir William Blackstone, that the modern office unites in itself those of the Saxon tithingman, and Norman constable, (properly so called,) is the one which perhaps best reconciles the different views which have been taken on this point of origin. 1 Bl. Com. 356. See Tithingman. (358) stable of the tower of London. Bract. fol. tury. Constabulus is used by Regino, an 360 b, 361. Italian writer at the beginning of the (359) son appointing an attorney in fact is called his constituent. See Reg. Orig. 20, 21. (360) (361) Feudorum Libri, (Books of Fiefs,) usually annexed to the Corpus Juris Civilis. 3 Kent's Com. 496. (362) (363) or upon consultation; the consultation the bankrupt law, or of proceedings in a itself being, as is clearly shown, not among court of bankruptcy; but a contemplation the justices of the superior court, but beof the breaking up of one's business, or an tween the judges of the two courts, in the inability to continue it. Randall, J. Crabbe's nature of a conference. The term conR. 529, 532. sultation itself is taken from the Roman (364) rule or process of court is said to be in contempt. 4 Steph. Com. 19. See Attachment, Commitment. Disregard or disobedience of the rules of a legislative body. (365) (366) 172. Steph. Com. 259. Ward on Legacies, calls it an entry in law, and says that it is as strong as an entry in deed. Co. Litt. 256 b. It has been lately abolished in England, by stat. 3 & 4 Will. IV. c. 27, § 11. 1 Steph. Com. 472. (367) action, keeping pace with every step of it, and accounting for every thing that was done during its progress, so as to show the proper reason for it, viz. the direction of the court. A compliance with these two principles was facilitated by the circumstances of the parties personally appearing and pleading in open court, and of the record being a contemporaneous minute of the proceedings. See Record. (368) act, no prescription runs. Statutes of limi- munitions of war. 1 Kent's Com. 135, et tations do not run against parties under seq. Brande. Provisions and other articles disability. Broom's Max. 398, 399, [700]. See 6 Texas R. 223. (369) tion created by it, the obligation of which the state legislature cannot impair. 27 Mississippi R. 517. ***Mr. Stephen objects to the definition of Blackstone (supra,) 1, that the word agreement itself requires definition as much as contract; 2, that the existence of a consideration, though essential to the validity of a parol contract, forms properly no part of the idea; and 3, that the definition takes no sufficient notice of the mutuality which properly distinguishes a contract from a promise. 2 Steph. Com. 109, note. His own words of definition are: "A contract or agreement is where a promise is made on one side, and assented to on the other; or where two or more persons enter into engagement with each other, by a promise on either side." Id. 108, 109. As to the word agreement, it may be observed that some word of the kind seems essential to constitute the basis of any definition of contract that can be attempted. Agreement appears to be the translation of conventio in the civil law definition of the term, but falls short of the original (a coming together) in expressiveness, besides being liable to the objection of being a synonyme (or nearly so,) of the word which it is selected to define. Its use, however, has the support of the highest authority in ancient and modern law. As to the idea of a consideration, it will be seen that it has been admitted into the best definitions of contract, both ancient and modern, (except that of Chief Justice Marshall,) that have been framed; and its materiality to complete the idea of a contract is forcibly shown by the circumstance, that in that class of contracts (those by specialty or under seal) in which no consideration in fact is required, one is always presumed by law, the form of the instrument being held to import a consideration. See 2 Kent's Com. 450, note.-The third objection of Mr. Stephen to the definition of Blackstone, that it takes no sufficient notice of the mutuality of a contract, has apparently more weight; although, from Blackstone's own analysis of his definition, it would seem that he intended the idea of mutuality to be conveyed by, and implied in the word agreement itself, which, in another passage, he describes as a mutual bargain or convention." 2 Bl. Com. 442. On the whole, notwithstanding these objections, the correctness of the definition of Blackstone remains essentially unimpeached, and it certainly enjoys the preferVOL. I. ence of the best authority. 2 Kent's Com. 499, 450. Story on Contracts, ubi supra. The modern use of the word contract, as a generic term for all sorts of obligations, (including those created by record and by specialty,) though established on high authority, seems to be an undue extension of the proper meaning of the term, and has thrown much difficulty in the way of accurate definition. Contract is obviously derived (through contractus, a term of the civil law,) from contrahere, to draw together; importing the same radical idea with agreement, but with a stronger expression of mutuality in the use of the particle con. See Agreement. Mutuality, indeed, is of its very essence; not only mutuality of assent, implying free and deliberate action of the parties in coming into the contract, but mutuality of act also,-mutuality in the things agreed to be done by the contract; each party engaging to do, or not to do certain things. There is, in Lord Coke's phrase, (though not in the etymological sense in which he used it,) act against act, (actus contra actum). 2 Co. 15. 7 Man. & Gr. 998, arg. and note. Thus, in the contracts of sale, bailment and for the performance of work, there are acts to be done by both parties; the one engaging to deliver the article or perform the work, and the other to pay the price, to use the article carefully, &c. So, in the contracts of partnership and marriage, the engagements are mutual. Engagements of this description, and no others, seem to come properly under the denomination of contracts. In a bond, on the other hand, there is none of this kind of mutuality; there is no act to be done by the obligee to make the instrument binding; the obligation is all upon the side of the obligor. In a judgment, there is not only no mutuality of act, but not even mutuality of assent; the obligation being fastened upon the party by the law, whether he wills it or not; judicium redditur in invitum. Hence, judgments have very properly been denied to be contracts, notwithstanding the doctrine of Blackstone, that a contract is, in such cases, implied. Lord Mansfield, 3 Burr. 1545. 1 Cowen's R. 316. Story, J. 1 Mason's R. 288. The impropriety of applying the term contract to bonds and judgments seems to be virtually admitted by Mr. Chitty, who uses obligation as an alternative word of description, in regard to both. Chitty on Contracts, 2, 4. See Obligation. (370) CONTRACT, Obligation of. See Obligation of Contract. (371) ee for etre. exon for excepcion. H. 2 E. II. 30. Furiosus nullum negotium contrahere potest. A madman can contract nothing, frakteeet for franktenement. M. 19 H. (can enter into no contract). Id. 50. 17. 5. ( 372 ) by an intervening word, as contra prædicta venire. Cart. Confirm. 49 Hen. III. component parts of this word are separated if a jettison of goods is made, for the sake of lightening the vessel, that which is given up for the good of all shall be made good by the contribution of all. Dig. 14. 2. 1. (373) the Roman antigraphus (q. v.) was of a similar character; cui id muneris injunctum erat, ut observet pecuniam, quam in usum principis vel civitatis collegerunt exactores. Budæus, cited in Cowell. * **This word is frequently written, and sometimes defined, as though it were derived from the Fr. compte, or old English accompt, an account. The error of this derivation, however, is easily seen on reference to the L. Lat. and L. Fr. forms, (contrarotulator, contrerouleur, from the latter of which the English controller is undoubtedly taken,) which show it to be compounded of contra, or contre, against, and rotulator, rouleur, an enroller; making its true signification to be the keeper of a counter-roll, i. e. a roll intended as a check upon another officer's roll or account. See the definition supra. The correctness of this etymology is strikingly confirmed by the composition of the word antigraphus; (Gr. dvri, against, and yoápev, to write,) the title of an officer who was charged with a similar duty in the Roman law. See supra. Controller of the pipe is defined by Cowell, to be an officer who "keeps a contra-rollment [or controlment] of the pipe." So, by the Stat. 3 Edw. I. c. 10, sheriffs are directed to have or keep counter-rolls with the coroners, &c. Termes de la Ley, voc. Counter-rolls. And in Britton, the sheriff is expressly declared to be the coroner's controller in all his office; (son contrerouleur en tout son office). Britt. c. 1. This was so, however, at an earlier period. Bract. fol. 121 b, 140 b. See Counterroll, Roll. (374) CONVENABLE, Covenable. L. Fr. and Eng. In old English law. Suitable; agreeable; convenient; fitting. Litt. sect. 103. Stat. 27 Edw. III. st. 2, c. 21. Stat. 2 Hen. VI. c. 2. Cowell. (375) or nobles. One of the ancient names of the English parliament. 1 Bl. Com. 148. A convent. Bract. fol. 16, 347.