rupees, in contradistinction to batta, which is the still there may be a customary court; for as sum deducted.- Encyc. Lond. CUSTANTIA, costs.

CUSTODE ADMITTENDO, CUSTODE AMOVENDO, writs for the admitting and removing of guardians.

CUSTODES LIBERTATIS ANGLIE AUCTORITATE PARLIAMENTI, the style in which writs and all judicial processes were made out during the grand rebellion from the execution of King Charles I., till Oliver Cromwell was declared Protector.-12 Car. II. c. 3.

CUSTODIA LEGIS, in the custody of the

law.

CUSTODIAM LEASE, a grant from the Crown under the Exchequer seal, by which the custody of lands, &c., seised in the king's hands, is demised or committed to some person as custodee or lessee thereof.

CUSTOM (fr. coutume, Fr.), an underwritten law established by long usage and the consent of our ancestors. If it be universal, it is common law; if particular, it is then properly custom. The requisites to make a particular custom good are these: (1.) It must have been used so long that the memory of man runs not to the contrary; (2.) it must have been continued; and (3.) peaceable; also (4.) reasonable; and (5.) certain; (6.) compulsory, and not left to the option of every person, whether he will use it or not; and (7.) consistent with each other, one custom cannot be set up in opposition to another.

these two courts are distinct (though frequently held at the same time, the same roll serving to record the proceedings of both), the want of freeholders does not preclude the lord from holding a customary court for his copyholders.-1 Cruise's Dig. tit. x. c. 1, s. 19.

CUSTOMARY FREEHOLDS, or, as they are also denominated, PRIVILEGED COPYHOLDS, or copyholds of frank tenure, were known in ancient times, as estates in privileged villenage or villein socage, and are estates held by custom, but not at the lord's will, in which they differ from copyholds: yet now the will of the lord in copyhold is, as we have seen, reduced to a mere fiction. These lands are of such an amphibious nature, that when they are compared with mere copyholds, they may be called freeholds, and when compared with absolute freeholds, they may be denominated copyholds. While the freehold interest or estate rests with the tenant, the freehold tenure is in the lord. (Mr. Sergeant Scriven dissents from this proposition in his work on Copyholds, vol. ii. p. 572 et seq.) They are usually transferred, by surrender, into the hands of the lord and admittance of the new tenant. Their customs, incidents, and services, are similar to those already noticed as relating to copyholds properly so called.

Mr. Cruise divides customary freeholds into two kinds: (1.) those of which the freehold is in the lord, more properly called free copyholds; and (2.) those of which the freehold is in the tenant, strictly called customary freeholds. The CUSTOM-HOUSE, the house or office where former pass by surrender and admittance, the commodities are entered for importation or ex- latter by a conveyance which passes from the portation; where the duties, bounties, or draw- grantor-tenant his freehold, followed by an adbacks payable or receivable upon such importa-mittance (or as the custom is, in some manors, tion or exportation are paid or received; and by surrender and admittance), which marks the where ships are cleared out, &c. The principal change of tenancy.-1 Cruise's Dig. tit. x. c. i. British custom-house is in London, but there are s. 9. custom-houses subordinate to it in all the considerable sea-ports.

CUSTOM-HOUSE BROKERS, persons authorized by the commissioners of customs to act for parties at their option in the entry or clearance of ships, and the transaction of general business. They give a bond to the commissioners in a sum of 1000l., conditioned for their good conduct, and for the purpose of enabling restitution to be made of any loss accruing by their negligence or misconduct.

CUSTOM OF MERCHANTS (lex mercatoria, Lat.). See COMMERCE.

CUSTOMARY COURT-BARON, a court which should be kept within the manor for which it is held, but it may be held anywhere within the manor, at the pleasure of the person holding it, unless some ancient custom require it to be held in a certain place.

The court-baron was to be held from three weeks to three weeks, or, as some think, as often as the lord chose. And it should seem clear, that the lord may hold a customary court as frequently as he pleases, and compel the attendance of his tenants who hold by villein or base services.-2 Wat. Cop. c. i. p. 9.

It is to be observed, that although there should be no freeholders of the manor, by which the court-baron or freeholders' court is lost, yet

CUSTOMS, duties charged upon commodities on their being imported into, or exported out of, a country. They seem to have existed in England before the Conquest, but the king's claim to them was first established by 3 Edw. I. These duties were, at first, principally laid on wool, woolfels (sheep-skins), and leather when exported. There were also extraordinary duties paid by aliens, which were denominated parva costuma, to distinguish them from the former, or magna costuma. The duties of tonnage and poundage, of which mention is so frequently made in English history, were custom duties; the first being paid on wine by the ton, and the latter being an ad valorem duty of so much a pound on all other merchandise. When these duties were granted to the Crown, they were denominated subsidies, and as the duty of poundage had continued for a lengthened period at the rate of 1s. a pound, or five per cent., a subsidy came, in the language of the customs, to denote an ad valorem duty of five per cent. The new subsidy granted in the reign of Wm. III. was an addition of five per cent. to the duties on most imported commodities. The various custom duties were collected for the first time, in a book of rates published in the reign of Charles II. a new book of rates being again published in the reign of George I. But exclu

CUSTUMA ANTIQUA SIVE MAGNA, the old duties on wool, sheepskins, or woolfels, and leather exported.

CUSTUMA PARVA ET NOVA, the alien's duty on imported and exported commodities.

CUTHRED, a knowing or skilful counsellor. CUTPURSE, one who steals by the method of cutting purses; a common practice when men wore their purses at their girdles, as was once the custom.-Ibid.

CUTTER OF THE TALLIES, an officer in the exchequer, to whom it belonged to provide wood for the tallies, and to cut the sum paid upon them, &c.

sive of the duties entered in these two books, business respecting the revenue transacted. — many more had been imposed at different times; Indian. so that the accumulation of the duties, and the complicated regulations to which they gave rise, were productive of the greatest embarrassment. The Customs' Consolidation Act, 27 Geo. III. c. 13, introduced by Mr. Pitt, in 1787, did much to remedy these, among other inconveniences. The method adopted was, to abolish the existing duties on all articles, and to substitute in their stead one single duty on each article, equivalent to the aggregate of the various duties by which it had previously been loaded. The resolutions on which the act was founded amounted to about 3000. A more simple and uniform system was, at the same time, introduced into the business of the custom-house. These alterations were productive of the very best effects, and several similar consolidations have since been effected, particularly in 1853, when the 16 & 17 Vict. c. 107, consolidated the several acts then in force for the management and regulation of customs, the prevention of smuggling, the encouragement of British shipping and navigation, the warehousing of goods, the granting of drawbacks and allowances of customs, the regulation of the trade of the British possessions abroad and of the Isle of Man. As to customs, see 8 & 9 Vict. c. 85, ss. 2, 3; c. 86, ss. 45, 139, 140; c. 87, ss. 10, 124; c. 91, s. 51; 12 & 13 Vict. c. 90, ss. 41, 42, 43; 13 & 14 Vict. c. 95, s. 14; 15 & 16 Vict. c. 47; 16 & 17 Vict. c. 54; 17 & 18 Vict. c. 5; 19 & 20 Vict. cc. 75, 83, s. 5; 20 Vict. c. 15; 20 & 21 Vict. cc. 61, 62; 22 & 23 Vict. c. 37; as to offences against the customs, see 16 & 17 Vict. c. 107, s. 269, &c.—Mc Cull. Comm. Dict.

CUSTOS BREVIUM (the keeper of the writs), a principal clerk belonging to the Courts of Queen's Bench and Common Pleas, whose office it was to keep all the writs returnable into those courts. Abolished by 1 Wm. IV. c. 58. CUSTOS MORUM, the guardian of morals, resident in the Court of Queen's Bench.

CUSTOS PLACITORUM CORONE (the keeper of the pleas of the Crown). The custos rotulorum.

CUSTOS ROTULORUM (the keeper of the rolls or records of the county). He is the principal justice of the peace within the county, but he is rather an officer or minister than a judge. CUSTOS SPIRITUALIUM, he that exercises the spiritual jurisdiction of a diocese, during the vacancy of any see, which, by the canon law, belongs to the dean and chapter, but, at present, in England, to the archbishop of the province by prescription.-Encyc. Lond.

Custos statum hæredis in custodia existentis meliorem, non deteriorem, facere potest. 7 Co. 7. (A guardian can make the estate of an existing heir under his guardianship, better, not worse.)

CUSTOS TEMPORALIUM, the person to whom a vacant see or abbey was given by the king, as supreme lord. His office was, as steward of the goods and profits, to give an account to the escheator, who did the like to the exchequer. - Encyc. Lond.

CUTCHERRY, a court of justice, also the public office where the rents are paid and other

CUTWAL, KATWAL, the chief officer of police in a large town or city; the superintendent of the markets. - Indian.

CYGNETS belong equally to the owners of the cock and hen.-7 Rep. 17.

CY-PRES. The Court of Chancery frequently obviates a perpetuity by applying the rule of cy-près or approximation. The principle of this doctrine is, that where a testator has two, objects, one primary or general, and the other secondary or particular, which are incompatible, the particular must be sacrificed in order that effect may be given to the general object as near as may be to the testator's intention, according to law. Thus, if a testator manifest a general intention that a particular unborn devisee and his issue should take certain property, but in consequence of the interests of the issue being limited by purchase, the particular mode adopted by the testator of carrying into effect his primary intent be contrary to law, the courts have, in support of the testator's general intention to provide for the issue of the devisee, sometimes held that the issue shall take derivatively through the ancestor, by vesting an estate tail in him, which is conformable to the rules of law.

There must, however, be a clear indicium of an intention that the issue of the unborn person should take estates tail, or should succeed in a mode analogous to the course in which an entail would descend. Wherefore a limitation to the issue of an unborn tenant for life as the parent shall appoint, without any express gift cannot be validated by cy-près, and the limitation following the life estate fails. Again, the doctrine is not applicable where there is only a single intent to create a perpetuity, and not a general intention of providing for all the line of issue, combined with an inconsistent particular intent in regard to the mode of effecting that object. Nor is it applicable to limitations of personal estate, since it is not transmissible by entail, unless in the case of a conjoint or referential disposition of both realty and personalty, when, quoad the realty, an estate-entail vests in the unborn child, and, quoad the personalty bequeathed upon the like trusts, an absolute interest vests in such a child. The doctrine is not applicable to limitations in deeds, its indulg ence being confined to the construction of wills only.

Of course, the persons or class to be made

tenants-in-tail by the application of cy-près, must be entitled to a freehold interest.

The inclination of the courts is not to extend the doctrine.-Lewis on Perp. 426–454.

It is also applied to charitable legacies; it matters not how uncertain the persons or the objects may be, or whether the persons who are to take are in esse or not, or whether the legatee be a corporation capable in law of taking or not, or whether the bequest can be carried into exact execution or not, for in all these and the like cases the court will sustain the legacy, and give it effect according to its own principles. And where a literal execution becomes inexpedient or impracticable the court will execute it as nearly as it can, according to the original purpose, or, as the technical expression is, cy-près. The doctrine as applied to charities was formerly pushed to a most extravagant length. But this sensible distinction now prevails, that the court will not decree the execution of a charitable trust in a manner different from that intended, except so far as it is seen that the intention cannot be literally executed. In that case another mode will be adopted consistent with the general intention, so as to execute it, though not in mode, yet in substance. If the mode should become by subsequent circumstances impossible, the general rule is not to be defeated, if it can in any other way be obtained. Where there are no objects remaining to take the benefit of a charitable corporation, the court will dispose of its revenues by a new scheme upon the principles of the original charities, cy-près.

king; a son or child of the people. It is manifestly a patronymic, like Escing, son of Æsc; Uffing, son of Uffa; Elling, son of Elle; Cerdicing, son of Cerdic; Iding, son of Ida; Cryding, son of Cryda; Etheling, son of the Ethel, or noble.-Anc. Inst. Eng.

CYPHONISM, a punishment used by the ancients, which some suppose to have been the smearing of the body with honey, and exposing the person to flies, wasps, &c. But the author of the notes on Hesychius says, under the word xvpwr, that it is derived from the word zuяtw, to bend or stoop, and signifies that kind of punishment still used by the Chinese, called by Sir George Staunton, the wooden collar, by which the neck of the malefactor is bent or weighed downward.-Encyc. Lond. CYRCE, a church.

CYRICBRYCE, a breaking into a church. CZAR (written more properly Tzar, Sclav.), the title of the Emperor of Russia, first assumed by Basil, the son of Basilides, under whom the Russian power began to appear, about 1470.

CZARINA, the title of the Empress of Russia. CZAROWITZ, the title of the eldest son the czar and czarina.

D.

Da tua dum tua sunt, post mortem tunc tua non sunt. 3 Buls. 18. (Give the things which are yours whilst they are yours; after death then they are not yours.)

ĎÆD-BANA, the actual perpetrator of a homicide.

DAGUS, or DAIS, the raised floor at the upper end of a hall.

DAM, a boundary or confinement; a mole. DAMAGE (fr. damnum agere, Lat., dommage, Fr.), any hurt or hindrance that a person receives in his estate, but particularly a part of what the jurors are to inquire of and bring in, when a verdict passes for the plaintiff. It is plainly derived from the Anglo-Saxons, and taken in two several significations, the one pro

There is also a modification of the strictness of the common law, as to conditions precedent in regard to personal legacies, which is at once rational and convenient, and promotive of the intention of the testator. It is, that where a DAKER, or DIKER, ten hides.—Blount. literal compliance with the condition becomes DALUS, DAILUS, DAILIA, a certain meaimpossible from unavoidable circumstances, and sure of land; such narrow slips of pasture as are without any default of the party, it is sufficient left between the ploughed furrows in arable land. that it is complied with as nearly as it practically-Cowel. can be, i. e. cy-près. This modification is derived from the civil law, and stands upon the presumption that the donor could not intend to require impossibilities, but only a substantial compliance with his directions, as far as they should admit of being fairly carried into execution. It is upon this ground that courts of equity constantly hold in cases of personal legacies, that a substantial compliance with the condition sa-perly and generally, as it is in cases wherein tisfies it, although not literally fulfilled. Thus, if a legacy upon a condition precedent shall require the consent of three persons to a marriage, and one or more of them should die, the consent of the survivor or survivors would be deemed a sufficient compliance with the condition. And, à fortiori, this doctrine would be applied to conditions subsequent.-Sugd. Powers, 549; 1 Story's Eq. Jur. 235, and vol. ii. 386, 390.

CYCLE (fr. zúzos, Gk.), a measure of time; a space in which the same revolutions begin again; a periodical space of time.-Encyc. Lond. CYNE-BOT, or CYNE-GILD, the portion belonging to the nation of the mulet for slaying the king, the other portion or 'wêr' being due to his family.

CYNING (fr. cyn, Sax., gens, natio, Lat.), a

damages are founded upon the statutes, where costs are included within the word damages, and taken as such; the other relatively, when the plaintiff declares for the wrong done to him to the damage of such a sum, this is to be taken for the wrong which passed before the action commenced, and is assessed by reason of the foregoing trespass and cannot extend to the costs, which are future and of another nature. The plaintiff cannot recover greater damages than he has laid in the conclusion of his declaration.

In real actions no damages are recoverable. In the mixed action of ejectment the damages were ordinarily nominal (unless under 1 Geo. IV. c. 87), the actual damages sustained by the detention of the property, &c., being usually recovered in an action of trespass for mesne profits.

But they can now be recovered in the ejectment tract, or agreement, it shall be lawful for the by C. L. P. A. 1852, s. 214. Damages are re- same court, if it shall think fit, to award damages coverable in all personal actions, and in assump- to the party injured, either in addition to, or in sit, covenant, case, trover, and trespass, they are substitution for such injunction or specific perthe sole object of the action, whilst in debt and formance, and such damages may be assessed in detinue they are nominal; in replevin, if the ac- such manner as the court shall direct.”—(s. 2.) tion be in the detinet, the damages are measured It shall be lawful for the Court of Chancery, by the actual injury sustained; but if in the if it shall think fit, to cause the amount of such detinuit, the damages are given for the injury damages in any case to be assessed, or any questhe plaintiff has sustained by the taking only, tion of fact arising in any suit or proceeding to which is usually the expenses of the replevin be tried by a special or common jury before bond. the court itself; and the Court of Chancery may By the 3 & 4 Wm. IV. c. 42, s. 28, it is en- make all such rules and orders upon the sheriff acted "that upon all debts or sums certain, pay- or any other person for procuring the attendance able at a certain time or otherwise, the jury on of a special or common jury, for such assessment the trial of any issue, or on any inquisition of of damages or the trial of such question of fact, damages, may, if they shall think fit, allow in- as may be made by any of the superior courts terest to the creditor, at a rate not exceeding of common law at Westminster, and may also the current rate of interest from the time when make any other orders which to the Court of such debts or sums certain were payable, if such Chancery may seem requisite; and every such debts or sums be payable by virtue of some jury shall consist of persons possessing the quawritten instrument at a certain time, or if pay-lifications, and shall be struck, summoned, balable otherwise, then from the time when demand loted for, and called in like manner, as if such of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the time of payment; provided that interest shall be payable in all cases in which it is now payable by law." By s. 29, "the jury on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, give damages in the nature of interest, over and above the value of the goods at the time of the conversion or seizure, in all actions of trover or trespass de bonis asportatis, and over and above the money recoverable in all actions on policies of assurance made after the passing of this act." See C. L. P. A. 1852, s. 95; and 19 & 20 Vict. c. 97, s. 2.

Double and treble damages are in some cases given by particular statutes, but at common law the damages are always single. Damages may be limited, increased, or reduced, according to circumstances.-1 Reeve, 14; 2 Turner's AngloSax. v. ii. app. iii. c. ii; Sayer on Damages; 1 Chit. Arch. Prac. by Pren. 434.

Compensation or damages are usually decreed in equity only as incidental to other relief, or where some peculiar equity intervenes. The mode by which such compensation or damages has been hitherto ascertained, was either by a reference to chambers, or by directing an issue, quantum damnificatus, which is tried by a jury. -2 Story's Eq. Jurisp. 93.

Chancery labored under the infirmity of not being enabled to award damages by way of compensation for a perpetrated fraud, or for the non-performance of a contract relating to the sale and purchase of realty, although a "floating idea" was once abroad as to its power in the latter case. However, the 21 & 22 Vict. c. 27, has amended this. The act takes effect from 1st November, 1858, and may be cited as "The Chancery Amendment Act, 1858.”—(s. 17.)

66

In all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, con

jury were a jury for the trial of any cause in any of the said superior courts, and every juryman so summoned shall be entitled to the same rights and subject to the same duties and liabilities as if he had been duly summoned for the trial of any such cause in any of the said superior courts; and every party to any such proceeding shall be entitled to the same rights as to challenge and otherwise as if he were a party to any such cause; and generally for all purposes of or auxiliary to the assessment of damages or the trial of questions of fact by a jury before the court itself, and in respect of new trials, the Court of Chancery shall have the same jurisdiction, powers, and authority in all respects as belong to any superior Court of Common Law, or to any judge thereof for the like purposes, provided that from any order made by the court, on an application made for a new trial, there shall be the same right of appeal as from any other order of the court."—(s. 3.)

Any question of fact and any question as to the amount of damages which shall be so ordered to be tried by a jury before the court itself shall be reduced into writing in such form as the court shall direct, and at the trial the jury shall be sworn to try the said question, and a true verdict to give thereon according to the evidence; and upon every such trial the Court of Chancery shall have the same powers, jurisdiction, and authority as belong to any judge of any of the said superior courts sitting at Nisi Prius."—(s. 4.)

"It shall also be lawful for the Court of Chancery, if it shall think fit, to cause the amount of such damages in any case to be assessed, or any question of fact arising in any suit or proceeding to be tried before the court itself without a jury, and to cause the evidence on the trial of that question to be taken by the oral examination of witnesses and other proofs in open court; and any question of fact, and any question as to the amount of damages which shall be so ordered to be tried before the court itself, shall be reduced into writing in such form as the court shall direct; and the verdict of the judge shall be of the same effect as the verdict of a jury

"It shall also be lawful for the Court of Chancery, in any case in which it shall think fit so to do, to cause the amount of such damages to be assessed by a jury before any judge of one of the superior Courts of Common Law at Nisi Prius, or at the assizes, or before the sheriff of any county or city, and for that purpose to issue a precept to the sheriff of such county or city as the Court of Chancery shall think fit, or where the sheriff is interested, then to the coroner, requiring him to return, summon, and impanel a common or special jury for the purpose aforesaid, in like manner as is done in cases of writs of inquiry at common law, which are to be exe-ing damage). If a stranger's beasts are found cuted before a judge or before the sheriff; and in another person's ground without his leave or the Court of Chancery shall have power to set license, and without the fault of the possessor of aside the verdict or inquisition on such inquiry, the close (which may happen from his not reand to direct a new inquiry, in such manner and pairing his fences), and there doing damage by on such terms as the court shall think fit."-feeding or otherwise to the grass, corn, wood, (s. 6.)