20 It seems, that courts of justice cannot commit for contempts, for an indefinite time; or until the further order of the court. Yates v. The People. 6 Johns. Rep. 337. 21 A person out of court cannot be committed for a contempt by an order of the court, without a writ or warrant. Ib.

Woods & Bemis v. Young. 4 Cranch

237.

22 A person, who has been regularly committed, and afterwards set-at large, cannot be recommitted by an 1 order grounded upon, and reciting the original writ or attachment. Ibid.

23 It is a contempt of the court to

withhold a venire. 1 Dallas, 29. 24 It is a contempt, for which an attachment lies, to endeavor to prejudiee the public mind in writings respecting a cause depending in court. 1 Dallas, 319.

25 When the defendant is present, on a rule to show cause why an attachment should not issue against him for a contempt, the court will not make the rule absolute, but proceed to give judgment for the offence.

1

Ib.

CONTINUANCE.

Continuance not entered in B. R. till the plea roll is made up. Curluis v. Padley. 1 Salk. 179. 2 L. Raym. 872.

2 Continuances cannot be returned upon the same certiorari with the original. Tyson v. Hilliard.

1

Salk. 269. 2 L. Raym. 1122. 3 The court will not continue an indictment at the motion of the defendant on account of the absence of a witness, unless such witness reside within the jurisdiction of the court. 1 Mass. 6.

4 The court will continue an indictment for fraud pending a civil action for the same cause. 1 Mass.

2

3

206.

CONTRACT.

If a person sends an order to a merchant for a particular quantity of goods, on certain terms of credit, and the merchant sends a less quantity, at a shorter credit, and the goods so sent are lost by the way, the merchant must bear the loss, for there is no contract, express or implied, between the parties. Bruce and Bruce v. Pearson. 3 Johns. Reports, 534.

All contracts are by speciality or parol; and if written, and not sealed, they are parol agreements. Ballard v. Walker. 3 Johns. Cas. 60.

A. signed a written agreement, reciting, that whereas he had sold to B. a lot of land, who had agreed to pay him 300l. by a certain day, and to execute a bond and mortgage to secure the payment; A. therefore promised and agreed to deliver to B. a good and sufficient deed for the land, on delivery of the bond and mortgage by B. In an action brought by B. against A. on this agreement, it was held, that this being a mutual agreement for the sale and purchase, there was a valid consideration; and that being a writing signed by the party to be charged, it was sufficient under the statute of frauds; but four years having elapsed from the date of the agreement, before B. gave notice to A. that he should insist on the agreement, and five years before he tendered a performance on his part it was presumed that the parties had rescinded the contract; and though A. had, within a year of the contract; sold and convèved the land to C. so as to incapacitate

himself to perform his agreement
with B. yet that circumstance was
not held sufficient to control the le-
gal presumption that the contract
Ib.
was rescinded.

4 Where A. agreed to deliver to B. by the last of May, from 700 to 1000 barrels of meal, for which B. agreed to pay, on delivery, at the rate of 6 dollars per barrel, and A. delivered 700 barrels, and afterwards, before the day, tendered to B. 300 barrels more, to make up the 1000 barrels; which B. refused; it was held, that B. was bound to receive and pay for the whole 1000 barrels; the delivery of any quantity between 700 and 1000 barrels, being at the option of A. only, and for his benefit. Desbrough and others v. Neilson and others. 3 Johns. Cas. 81.

5 A contract may be optional as to one party, and obligatory on the other. Ib.

6 In what cases the relation of an

inferior and superior officer, will bind the latter to discharge the contracts of the former. 1 Dallas, 140.

7 The time of payment is part of the original contract, and if no time of payment is expressed in a note, the law adjudges it to be payable immediately; and parol evidence is inadmissible to show a different time of payment. Thompson v. Ketcham. 8 Johns. Rep. 189.

8

9

If part of one

15

A letter of credit, directed by mistake to John and Joseph, instead of John and Jeremiah, and delivered to John and Jeremiah who furnished goods upon the faith of it, does not constitute a contract between the writer of the letter and John and Jeremiah, to whom it was delivered, and parol proof cannot be admitted to make it such. Grant v. Naylor. 4 Cranch, 224. 16 The promise to pay the debt of another, must be in writing, and cannot be explained by parol. Grant v. Naylor. 4 Cranch, 235. 17 B., in Philadelphia, agreed to pay to A.'s agent in Amsterdam, 170,000 guilders on the first of March, and if he should fail so to do, then to repay to A. the value of the guilders at the rate of exchange current in Philadelphia at the time demand of payment should be made, together with damages at 20 per cent. in the same manner as if bills of exchange had been drawn for that sum, and they had been returned protested for non-payment, and lawful interest for any delay of payment which might take place after the demand. B. paid the 170,000 guilders in Amsterdam to the agent of A. on the 13th of May,

A. is

instead of the 1st of March. not entitled to the 20 per cent. damages, but may, in a suit upon the bond given to perform the contract, recover interest on the 170.000 guilders from the 1st of March, to the 13th of May. United States v. Gurney. 4 Cranch, 333. 18 When a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot devest those rights. Fletcher v. Peck. 6 Cranch,

88.

19 A party to a contract cannot pronounce its own deed invalid, although that party be a sovereign State. Ib.

30 A grant is a contract executed. Ibid. s

21 A law, annulling conveyances, is unconstitutional, because it is a law impairing the obligation of contracts, within the meaning of the constitution of the United States. Fletcher v. Peck. 6 Cranch, 89. 22 A contract cannot be enforced in a court of justice, if contrary to an act of the State, or of Congress. 4 Dallas, 269, 298, 308, 342.

CONTRIBUTION.

The masts, spars, rigging and sails of a vessel at sea were carried away by the violence of the weather, and after hanging by the vessel's side for half an hour, were cut loose for the preservation of the vessel and cargo afterwards being met by another ship, part of the cargo was taken on board the ship, and brought into port, the wreck being left; a salvage of one third of the cargo saved, was decreed to the salvors; and it was held that the owner of the cargo saved, was not liable to the owner of the vessel lost for a contribution to the loss of the masts, &e. Nickerson & al. v. Tyson. 8

ass. 467.

1

2

3

CONUSANCE.

Claim of conusance refused to the university of Oxford, the party, though a member, not being resident at Oxford. Hayes v. Long. 2 Wils.

310.

An ejectment for land in the isle of Ely, after not guilty pleaded, a suggestion made upon the roll without the nient dedire, or confession of the other party, yet held well. Cotten v. Johnson. 1 Salk. 183.

Conusance must be claimed in the first instance, or at the first day. Rex v. Agar. 5 Burr. 2820. 4 Conusance of pleas refused to the university of Oxford, because it was neither claimed in due form, nor in due time. Leasingby v. Smith, Savilian Professor of Geometry in the University of Oxford and Doctor in Physic. 2 Wils. 406.

5

6

7

8

Claim of conusance ought to be entered on a roll, and an affidavit to verify a certificate of a chancellor of an university. Paternoster v. Graham. 2 Str. 810. See also Kendrick v. Kynaston. 1 Black.

454.

An allowance in K. B. or in eyre is a sufficient ground for a claim of cognizance, and in stating the claim it ought to state one such allowance on the record, without shewing an immemorial usage. Forster v. Hexam. 1 L. Raym. 427. 1 Salk. 183. Conusee cannot assign his interest after extent and liberate, if conusor continues in possession. Hammond v. Wood. 2 Salk. 563.

When either of the universities claims cognizance of a cause, it must be before imparlance. Wells v. Trahern and another. Willes, 233. When an attorney is plaintiff, the university is not entitled to cognizance of the cause.

ib.

CONVEYANCE VOLUNTARY.

1 A voluntary settlement of lands

made in consideration of natural love and affection is void against a subsequent purchaser for a valuable consideration, though with notice of the prior settlement, before all the purchase money was paid, or the deeds executed; and though the settlor had other property at the time of such prior settlement, and did not appear to be then indebted, and there was no fraud in fact in the transaction: for the law, which is in all cases the judge of fraud and covin arising out of facts and intents, infers fraud in this case, upon the construction of the stat. 27 Eliz. c. 4. Doe d. Otley v. Manning. 9 East, 59.

2 Conveyance by tenant for life in fee, by deed recorded, is no forfeiture of his estate. 3 Dallas, 486.

CONVICTION.

1. Evidence, Statement of. II. Form of.

III. Game Laws.

IV. Lottery Acts.

V. Malt Acts.

VI. Separate Penalties.

VII. Quashing or Appealing from.
VIII. Surplusage in.

IX. Duty of Justices; Execution on &c.

1. Evidence, Statement of.

1 In a conviction it is sufficient if enough appears, to shew that the evidence was given in the presence of the defendant; without stating that he was actually present at the time. R. v. Kempson. Cowp. 241. 2 A conviction by a justice of peace is void, unless it sets forth the evidence. Rex v. Read. 2 Doug. 486. 3 If a statute authorizes officers to enter certain houses, either by day or night, provided that in case of any entry by night a constable be with them, and imposes a penalty upon the house keeper, if he refuses to aid them in doing certain acts;

4

5

6

in a conviction for a refusal, if the information and conviction state that he entered lawfully, it need not shew whether he entered by day or night. Rex v. Theed. 2 L. Raym. 1375. 1 Str. 608.

Conviction good, where only laid that the evidence was read to the party. The King v. Baker. 2 Str. 1240.

A conviction may state an offence to have been committed in a will, though the statute upon which it is grounded, gives part of the forfeiture for such offences to the poor of the parish in which they are committed. The King v. Wyatt. 2 L. Raym. 1478.

Upon a conviction, the defendant's summons, appearance, defence, and conviction, must not be stated to have happened on a day before that on which the information is alleged to have been exhibited and the witnesses examined. Rex v. Kent. 2 L. Raym. 1546.

7 If a statute directs that a person convicted by a justice of an offence, shall for want of a sufficient distress for a penalty he incurs on the eonviction, suffer imprisonment; the justice must, before he can issue a warrant for his commitment, state on the conviction that he has not such distress, and enter an adjudication that he be imprisoned. Rex v. Chandler. 1 L. Raym. 545. If a statute varies a punishment of a particular offence, according to the rank and age of the offender, if the information in a conviction states his rank and age, and the evidence refers to the person mentioned in the information, it need not shew his rank and age. Rex v. Tuck. 2 L. Raym 1396.

19 And this, even though it be stated that their appearance was at A., and that the evidence was given at B. R. v. Swallow. 8 Term Rep. 284.

20 It is a good objection to a conviction, that it does not state that the evidence was given in the defendant's presence. 6 Term Rep. 75. 21 Per Lord Kenyen. One point in the case of R. v. Thompson, (2 Term Rep. 18.) has always afforded me great dissatisfaction; namely, that the court would in any case intend that the evidence was given in the defendant's presence, without its so appearing upon the face of the conviction. 1 Term Rap. 648, n.

14 Where power of conviction is by statute given to a magistrate, he is the sole judge of the weight of the evidence given before him; and the court of K. B. will not examine whether or not he has drawn a right conclusion from the evidence: but if no evidence appear in the conviction to support a material part of the information, the court will quash the conviction. R. v. J. Smith. 8 Term Rep. 588. 15 Conviction quashed because the witness was not sworn and examined in the defendant's presence. R. v. T. S. Crowther. 1 Term Rep. 125. 16 It is not sufficient to read over the deposition of a witness in the defendant's presence. 1 Term Rep.

22 It is enough that the conviction sets forth that the witness was examined on oath, without stating that the magistrate had authority to administer the oath. R. v. Pic2 East, 195. 23 Where a penalty is to be sued for before justices of the peace within a certain time after the offence committed, upon a conviction for such offence returned by certiorari into B. R. it ought to appear on the face of the evidence stated in such conviction, that the prosecution was in time; and if the witness be only stated to have mentioned the month in which the offence was committed, omitting the year, and there be no word of reference to connect it with the true date, the omission cannot be supplied either by reference to the offence charged in the information, or by presumption arising from the justices having convicted the defendant. Rex v. Woodcock. 7 East, 146.

24 A conviction stated to be made by justices of the peace, &e. at the public office in Great MarlboroughStreet, &c. does not legally denote that it was made by one of the police magistrates under the statute 42 G. 3. c. 76, &c. The King v. Seale. 8 East, 568.

25 Though it be proper for a magis

trate in drawing up a conviction