CUL

(405) also jurisdiction of the accessory. Bract. 481 a. 2 Inst. 493. they are not illegal, repugnant or impossible. Id. ibid. So, the founder of an eleemosynary corporation has, on this princiCujus per errorem dati repetitio est, ejus consulto dati donatio est. He who gives a thing by mistake, has a right to recover it back; but if he gives designedly, it is a gift. Dig. 50. 17. 53. ple, the right of visitation, that is, the right of inspecting the management of the institution. 2 Kent's Com. 302. Cujus est divisio, alterius est electio. Whichever [of two parties] has the division [of an estate], the choice [of the shares] is the other's. Co. Litt. 166 b. In partition between coparceners, where the division is made by the eldest, the rule in English law is, that she shall choose her share last. Id. ibid. 2 Bl. Com. 189. 1 Steph. Com. 323. The reason of the rule Lord Coke declares to be "for avoiding of partiality, which might apparently follow if the eldest might both divide and choose." The form of this maxim, (which in its terms obviously contemplates but two parties, one dividing and the other choosing,) seems hardly to convey the full meaning usually given it, which would be more exactly expressed by reading cujus est divisio, ejus est ultima electio. This may have led to the use of the word ulterius for alterius, in some of the editions of Blackstone. Cujus est instituere, ejus est abrogare. Whose right it is to institute, his right it is to abrogate. Sydney's Disc. 15, cited Broom's Max. [681,] notes. Cujus est solum, ejus est usque ad cœlum. Whose is the soil, his it is up to the sky. Co. Litt. 4 a. He who owns the soil, or surface of the ground, owns, or has an exclusive right to every thing which is upon or above it, to an indefinite height. 9 Co. 54. Shep. Touch. 90. 2 Bl. Com. 18. Id. 217. Broom's Mar. 172, [289.] Cujus est solum, ejus est usque ad cælum et ad inferos. He who owns the soil owns it to the sky and to the centre of the earth; owns every thing above and below it, to an indefinite extent. Land, in its legal signification, has an indefinite extent upwards as well as downwards; upwards, therefore, no man may erect any building or the like, to overhang another's land; and downwards, whatever is in a direct line between the surface of any land and the centre of the earth, belongs to the owner of the surface. So that the word "land" includes not only the face of the earth, but any thing under it or over it. 2 Bl. Com. 18. See Land. Cujus juris [i. c. jurisdictionis] est principale, ejusdem juris erit accessorium. He who has jurisdiction of the principal, has Cujusque rei potissima pars est principium. The chiefest part of every thing is the beginning. Dig. 1. 2. 1. 10 Co. 49 a. See Causa et origo est materia negotii. The word principium is translated in Branch and Wharton, principle. An abbreviation of culpabilis, guilty. "If he be cul. of making, writing and composing," &c. Lord Holt, Comb. 359. Non cul. not guilty. Id. 393. Nient cul. not guilty. 4 Bl. Com. 339, 340. (406) mit [or be guilty of] gross fault, or neglect. Heinecc. Elem. Jur. Civ. lib. 3, tit. 14, 8787. Levis culpa; ordinary fault or neglect; the want of that diligence which the generality of mankind use in their own concerns, that is, of ordinary care. Jones on Bailm. 22. The omission of that care which every man of common prudence, and capable of governing a family, takes of his own concerns. Id. 118. Qui omittunt diligentiam a frugi patrefamilias adhiberi solitam, levem [culpam committere dicuntur;] they who omit that care which is usually taken by a careful head of a family, [are said to be guilty of] ordinary [fault or neglect.] Heinecc. Elem. Jur. Civ. lib. 3, tit. 14, § 787. Levissima culpa; slight fault or neglect; the omission of that care which very attentive and vigilant persons take of their own goods, or, in other words, of very exact diligence. Jones on Bailm. 22. The omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels. Id. 118. Qui eam non adhibent diligentiam quam solent patresfamilias ad rem attentissimi, culpam levissimam [committere dicuntur;] they who do not observe that care which the most attentive heads of families usually exercise, [are said to be guilty of] slight neglect. Heinecc. Elem. Jur. Civ. lib. 3, tit. 14, § 787. Lata culpa plane dolo comparabitur. Gross neglect may clearly be put on a level with fraud, [is clearly equivalent to fraud]. Dig. 11. 6. 1. Otherwise expressed, Lata culpa dolo æquiparatur. Magna negligentia culpa est; magna culpa dolus est. Gross negligence is fault; gross fault is fraud. Dig. 50. 16. 226. The doctrine embodied in these maxims, in the literal sense given to them, is adopted by Sir William Jones in his Essay on the Law of Bailments, and seems to have been formerly recognised to nearly the same extent in the common law. The modern doctrine, however, is, that gross negligence, though it may be evidence of fraud, is not the same thing; or, in other words, it may in certain cases amount to fraud, but it is not fraud by inference of law, but matter of fact for a jury. Parker, C. J. 17 Mass. R. 500. Lord Tindal, C. J. 2 Man. & Gr. 852. Lord Denman, C. J. 4 Ad. & Ell. 876. Story on Bailm. § 19. 2 Kent's Com. 560, and note. The true interpretation of the civil law maxims depends obviously on the construction to be given to the emphatic terms culpa and dolus, both of which have been made the subjects of much discussion by civilians and jurists. The exact meaning of culpa, indeed, does not seem to have been entirely settled in the Roman law. It is usually translated negligence, and is expressly used by Justinian as a synonyme of that word, (negligentia,) and also of desidia, (remissness). Inst. 3. 26. 9. But the language of the rule in the Digests already quoted,-Magna negligentia culpa est, magna culpa dolus est,-obviously makes it to be something more than mere negligence, being a high degree of negligence, just as fraud was a high degree of culpa; and the same idea is very significantly conveyed by that common expression in modern law,―culpable negligence,-which clearly implies that all negligence is not culpable. It will be seen, moreover, that the maxim last quoted fixes culpa as a mean between negligentia on the one side, and dolus on the other. Sir William Jones attributes this want of uniformity or precision, in the use of the word culpa, to the intrinsic poverty of the Latin language, as compared with the Greek, and the want of proper words to express the various shades of fault. Jones on Bailm. 33. Heineccius defines culpa, from the Digests, to be factum inconsultum quo alter injuria læditur, vel quod quum a diligente provideri potuerit, non sit provisum; an act done without purpose, (or settled design,) by which another is injured; or an injurious act which no care was taken to foresee and prevent, when it might have been foreseen and prevented by a careful person. Heinecc. El. Jur. Civ. lib. 3, tit. 14, § 784. And see Ayliffe Pand. b. 2, tit. 13, cited in Story on Bailm. § 20 b, note. As to the meaning of the important word dolus, see Dolus. (407) to meddle with a thing not belonging to, or concerning him. Dig. 50. 17. 36. 2 Inst. 208. Culpa tenet [teneat] suos auctores. Misconduct binds [should bind] its own authors. It is a never-failing axiom that every one is accountable only for his own delicts. Ersk. Inst. b. 4, tit. 1, § 14. Id. b. 4, tit. 4, § 103. Lord Campbell, 6 Bell's Appeal Cases, 539. Culpæ pœna par esto. Let the punishment be proportioned to the offence. Branch's Princ.