CERTIFICATE, practice. A writing made in any court, and
properly authenticated, to give notice to another court of anything
done therein; or it is a writing by which an officer or other person
bears testimony that a fact has or has not taken place.
2. There are two kinds of certificates; those required by the law, and those
which are merely voluntary. Of the first kind are certificates given to an
insolvent of his discharge, and those given to aliens, that they have been
naturalized. Voluntary certificates are those which are not required by law, but
which are given of the mere motion of the party. The former are evidence of the
facts therein mentioned, while the latter are not entitled to any credit,
because the factscertified, may be proved in the usual way under the solemnity
of an oath or affirmation. 2 Com. Dig. 306; Ayl. Parerg. 157; Greenl. Ev.
CERTIFICATE, JUDGE'S, English practice. The judge who tries the cause
is authorized by several statutes in certain cases to certify, so as to decide
when the party or parties shall or shall not be entitled to costs. It is of
great importance in many cases, that these certificates should be obtained at
the time of trial. See 3 Camp. R. 316; 5 B. & A. 796; Tidd's Pr. 879; 3 Ch.
Pr. 458, 486.
2. The Lord Chancellor often requires the opinion of the judges upon a
question of law; to obtain this, a case is trained, containing the admissions on
both sides, and upon these the legal question is stated; the case is then
submitted to the judges, who, after hearing counsel, transmit to the chancellor
their opinion. This opinion, signed by the judges of the court, is called their
certificate. See 3 Bl. Com. 453.
CERTIFICATE, ATTORNEY'S, Practice, English law. By statute 37 Geo.
III., c. 90, s. 26, 28, attorneys are required to deliver to the commissioners
of stamp duties, a paper or note-in writing, containing the name and usual place
of residence of such person, and thereupon, on paying certain duties, such
person is entitled to a certificate attesting the payment of such duties, which
must be renewed yearly. And by the 30th section, an attorney is liable to the
penalty of fifty pounds for practising without.
CERTIFICATION or CERTIFICATE OF ASSISE. A term used in the old English
law, applicable to a writ granted for the reexamination or re-trial of a matter
passed by assise before justices. F. N. B. 181 3 Bl. Com. 389. The summary
motion for a new trial has entirely superseded the use of this writ, which was
one of the means devised by the judges to prevent a resort to the remedy by
attaint for a wrong verdict.
CERTIORARI, practice. To be certified of; to be informed of. This is
the name of a writ issued from a superior court directed to one of inferior
jurisdiction, commanding the latter to certify and return to the former, the
record in the particular case. Bac. Ab. h. t.; 4 Vin. Ab. 330; Nels. Ab. h. t.;
Dane's Ab. Index, h. t.; 3 Penna. R. 24. A certiorari differs from a writ of
error. There is a distinction also between a hab. corp. and a certiorari. The
certiorari removes the cause; the hab. corp. only supersedes the proceedings in
below. 2 Lord Ray. 1102.
2. By the common law, a supreme court has power to review the proceedings of
all inferior tribunals, and to pass upon their jurisdiction and decisions on
questions of law. But in general, the determination of such inferior courts on
questions of fact are conclusive, and cannot be reversed on certiorari, unless
some statute confers the power on such supreme court. 6 Wend. 564; 10 Pick. 358;
4 Halst. 209. When any error has occurred in the proceedings of the court below,
different from the course of the common law, in any stage of the cause, either
civil or criminal cases, the writ of certiorari is the only remedy to correct
such error, unless some other statutory remedy has been given. 5 Binn. 27; 1
Gill & John. 196; 2 Mass. R. 245; 11 Mass. R. 466; 2 Virg. Cas. 270; 3
Halst. 123; 3 Pick. 194 4 Hayw. 100; 2 Greenl. 165; 8 Greenl. 293. A certiorari,
for example, is the correct process to remove the proceedings of a court of
sessions, or of county commissioners in laying out highways. 2 Binn. 250 2 Mass.
249; 7 Mass. 158; 8 Pick. 440 13 Pick. 195; 1 Overt. 131; 2 Overt. 109; 2 Pen.
1038; 8 Verm. 271 3 Ham. 383; 2 Caines, 179.
3. Sometimes the writ of certiorari is used as auxiliary process, in order to
obtain a full return to some other process. When, for example, the record of an
inferior court is brought before a superior court by appeal, writ of error, or
other lawful mode, and there is a manifest defect, or a suggestion of
diminution, a certiorari is awarded requiring a perfect transcript and all
papers. 3 Dall. R. 413; 3 John. R. 23; 7 Cranch, R. 288; 2 South. R. 270, 551; 1
Blackf. R. 32; 9 Wheat. R. 526; 7 Halst. R. 85; 3 Dev. R. 117; 1 Dev. & Bat.
382; 11 Mass. 414; 2 Munf. R. 229; 2 Cowen, R. 38. Vide Bouv. Inst. Index, h.
CESSET EXECUTIO. The staying of an execution.
2. When a judgment has been entered, there is sometimes, by the agreement of
the parties, a cesset executio for a period of time fixed upon and when the
defendant enters security for the amount of the judgment, there is a cesset
executio until the time allowed by law has expired.
CESSET PROCESSUS, practice. An entry made on the record that there be
a stay of the procas or proceedings.
2. This is made in cases where the plaintiff has become insolvent after
action brought. 2 Dougl. 627.
CESSAVIT, Eng. law. An obsolete writ, which could formerly have been
sued out when the defendant had for two years ceased or neglected to perform
such service or to pay such rent as he was bound to do by his tenure, and had
not upon his lands sufficient goods or cbattels to be distrained. F. N. B.
CESSIO BONORUM, civil law. The relinquishment which a debtor made of
his property for the benefit of his creditors.
2. This exempted the debtor from imprisonment, not, however, without leaving
an ignominious stain on his reputation. Dig. 2, 4, 25; Id. 48, 19, 1; Nov. 4, c.
3, and Nov. 135. By the latter Novel, an honest unfortunate debtor might be
discharged, by simply affirming that he was insolvent, without having recourse
to the benefit of cession. By the cession the creditors acquired title to all
the property of the insolvent debtor.
3. The cession discharged the debtor only to the extent of the property
ceded, and he remained responsible for the difference. Dom. Lois Civ. liv. 4,
tit. 5., s. 1, n. 2. Vide, for the law of Louisiana, Code, art. 2166, et seq. 2
M. R. 112; 2 L. R. 354; 11 L. R. 531; 5 N. S. 299; 2 L. R. 39; 2 N. S. 108; 3 M.
R. 232; 4 Wheat. 122; and Abandonment.
CESSION, contracts. Yielding up; release.
2. France ceded Louisiana to the United States, by the treaty of Paris, of
April 30, 1803 Spain made a cession of East and West Florida, by the treaty of
February 22, 1819. Cessions have been severally made of a part of their
territory, by New York, Virginia, Massachusetts, Connecticut) South Carolina,
North Carolina, and Georgia. Vide Gord. Dig. art. 2236 to 2250.
CESSION, civil law. The, act by which a party assigns or transfers
property to a other; an assignment.
CESSION, eccl. law. When an ecclesiastic is created bishop, or when a
parson takes another benefice, without dispensation, the first benefice becomes
void by a legal cession, or surrender. Cowel, h. t.
CESTUI. He. This word is frequently used in composition as, cestui que
trust, cestui que vie, &c.
CESTUI QUE TRUST, A barbarous phrase, to signify the beneficiary of an
estate held in trust. He for whose benefit another person is enfeoffed or seised
of land or tenements, or is possessed of personal property. The cestui que trust
is entitled to receive the rents and profits of the land; he may direct such
conveyances, consistent with the trust, deed or will, as he shall choose, and
the trustee (q. v.) is bound to execute them: he may defend his title in the
name of the trustee. 1 Cruise, Dig. tit. 12, c. 4, s. 4; vide Vin. Ab. Trust, U,
W, X, and Y 1 Vern. 14; Dane's Ab. Index, h. t.: 1 Story, Eq. Jur. 321, note 1;
Bouv. Inst. Index, h. t.
CESTUI QUE VIE. He for whose life land is holden by another person;
the latter is called tenant per auter vie, or tenant for another's life. Vide
Dane's Ab. Index, h. t.
CESTUI QUE USE. He to whose use land is granted to another person the
latter is called the terre-tenant, having in himself the legal property and
possession; yet not to his own use, but to dispose of it according to the
directions of the cestui que use, and to suffer him to take the profits. Vide
Bac. Read. on Stat. of Uses, 303, 309, 310. 335, 349; 7 Com. Dig. 593.
CHAFEWAX , Eng, law. An officer in chancery who fits the wax for
sealing, to the writs, commissions and other. instruments then made to be issued
out. He is probably so called because he warms (chaufe) the wax.
CHAFFERS. Anciently signified wares and merchandise; hence the word
chaffering, which is yet used for buying and selling, or beating down the price
of an article. The word is used in stat. 3 Ed. III. c. 4.
CHAIRMAN. The presiding officer of a committee; as, chairman of the
committee of ways and means. The person selected to preside over a popular
meeting, is also called a chairman or moderator.
CHALDRON. A measure of capacity, equal to fifty-eight and two-third
cubic feet nearly. Vide Measure.
CHALLENGE. This word has several significations. 1. It is an exception
or objection to a juror. 2. A call by one person upon another to a single
combat, which is said to be a challenge to fight.
CHALLENGE, criminal law. A request by one person to another, to fight
2. It is a high offence at common law, and indictable, as tending to a breach
of the peace. It may be in writing or verbally. Vide Hawk. P. C. b. 1, c. 63, s.
3; 6 East, R. 464; 8 East, R. 581; 1 Dana, R. 524; 1 South.. R. 40; 3 Wheel. Cr.
C. 245 3 Rogers' Rec. 133; 2 M'Cord, R. 334 1 Hawks. R. 487; 1 Const. R. 107. He
who carries a challenge is also punishable by indictment. In most of the states,
this barbarous practice is punishable by special laws.
3. In most of the civilized nations challenging another to fight. is a crime,
as calculated to destroy the public peace; and those who partake in the offence
are generally liable to punishment. In Spain it is punished by loss of offices,
rents, and horrors received from the king, and the delinquent is incapable to
hold them in future. Aso & Man. Inst. B. 2, t. 19, c. 2, 6. See, generally,
6 J. J. @larsh. 120; 1 Munf. 468; 1 Russ. on Cr. 275; 6 J. J. Marsh. 1 19;
Coust. Rep. 10 7; Joy on Chal. passim.
CHALLENGE, practice. An exception made to jurors who are to pass on a
trial; to a judge; or to a sheriff.
2. It will be proper here to consider, 1. the several kinds of challenges; 2.
by whom they are to be made; 3. the time and manner of making them.
3. - 1. The several kinds of challenges may be divided into those which are
peremptory, and those which are for cause. 1. Peremptory challenges are those
'which are made without assigning any reason, and which the court must allow.
The number of these which the prisoner was allowed at common law, in all cases
of felony, was thirty-five, or one under three full juries. This is regulated by
the local statutes of the different states, and the number except in capital
cases, has been probably reduced.
4. - 2. Challenges for cause are to the array or to the polls. 1. A challenge
to the array is made on account of some defect in making the return to the
venire, and is at once an objection to all the jurors in the panel. It is either
a principal challenge, that is, one founded on some manifest partiality, or
error committed in selecting, depositing, drawing or summoning the jurors, by
not pursuing the directions of the acts of the legislature; or a challenge for
5. - 2. A challenge to the polls is objection made separately to each juror
as he is about to be sworn. Challenges to the polls, like those to the array,
are either principal or to the favor.
6. First, principal challenges may be made on various grounds: 1st. propter
defectum, on account of some personal objection, as alienage, infancy, old age,
or the want of those qualifications required by legislative enactment. 2d.
Propter affectum, because of some presumed or actual partiality in the juryman
who is made the subject of the objection; on this ground a juror may be objected
to, if he is related to either within the ninth degree, or is so connected by
affinity; this is supposed to bias the juror's mind, and is only a presumption
of partiality. Coxe, 446; 6 Greenl. 307; 3 Day, 491. A juror who has
conscientious scruples in finding a verdict in a capital case, may be
challenged. 1 Bald. 78. Much stronger is the reason for this challenge, where
the juryman has expressed his wishes as to the result of the trial, or his
opinion of the guilt or innocence of the defendant. 4 Harg. St. Tr. 748; Hawk.
b. 2, c. 43, s. 28; Bac. Ab. Juries, E 5. And the smallest degree of interest in
the matter to be tried is a decisive objection against a juror. 1 Bay, 229; 8 S.
& R. 444; 2 Tyler, 401. But see 5 Mass. 90. 3d. The third ground of
principal challenge to the polls, is propter delictum, or the legal incompetency
of the juror on the ground of infamy. The court, when satisfied from their own
examination, decide as to the principal challenges to the polls, without any
further investigation and there is no occasion for the appointment of triers.
Co. Litt. 157, b; Bac. Ab. Juries, E 12; 8 Watts. R. 304.
7. - Secondly. Challenges to the poll for favor may be made, when, although
the juror is not so evidently partial that his supposed bias will be sufficient
to authorize. a principal challenge, yet there are reasonable grounds to suspect
that he will act under some undue influence or prejudice. The causes for such
cballenge are manifestly very numerous, and depend, on a variety of
circumstances. The fact to be ascertained is, whether the juryman is altogether
indifferent as he stands unsworn, because, even unconsciously to himself, be may
be swayed to one side. The line whicb separates the causes for principal
challenges, and for challenge to the favor, is not very distinctly marked. That
the juror has acted as godfather to the child of the prosecutor or defendant, is
cause for a principal cballenge; Co. Litt. 157, a; while the fact that the party
and the juryman are fellow servants, and that the latter has been entertained at
the house of the former, is only cause for challenge to the favor. Co. Litt.
147; Bac. Ab. Juries, E 5. Challenges to the favor are not decided upon by the
court, but are settled by triers. (q. v.)
8. - 2. The challenges may be made by the government, or those who represent
it, or by the defendant, in criminal cases; or they may be made by either party
in civil cases.
9. - 3. As to the time of making the challenge, it is to be observed that it
is a general rule, that no challenge can be made either to the array or to the
polls, until a full jury have made their appearance, because if that should be
the case, the issue will remain pro defectu juratorum; and on this account, the
party who intends to challenge the array, may, under such a contingency, pray a
tales to complete the number, and then object to the panel. The proper time, of
challenging, is between the appearance and the swearing of the jurors. The order
of making challenges is to the array first, and should not that be supported,
then to the polls; challenging any one juror, waives the right of challenging
the array. Co. Litt. 158, a; Bac. Ab. Juries, E 11. The proper manner of making
the challenge, is to state all the objections against the jurors at one time;
and the party will not be allowed to make a second objection to the same juror,
when the first has been over-ruled. But when a juror has been challenged on one
side, and found indifferent, he may still be challenged on the other. When the
juror has been cliallenged for cause, and been pronounced impartial, he may
still be challenged peremptorily. 6 T. R. 531; 4 Bl. Com. 356; Hawk. b. 2, c.
46, s. 10.
10. As to the mode of making the challenge, the rule is, that a challenge to
the array must be in writing; but when it is only to a single individual, the
words " I challenge him " are sufficient in a civil case, or on the part of the
defendant, in a criminal case when the challenge is made for the prosecution,
the attorney-general says, We challenge him." 4 Harg. St. Tr. 740 Tr. per Pais,
172; and see Cro. C. 105; 2 Lil. Entr. 472; 10 Wentw. 474; 1 Chit. Cr. Law, 533
11. Interest forms the only ground at common law for challenging a judge. It
is no ground of challenge that he has given an opinion in the case before. 4
Bin. 349; 2 Bin. 454. By statute, there are in some states several other grounds
of challenge. See Courts of the U. S., 633 64.
12. The sheriff may be challenged for favor as well as affinity. Co. Litt.
158, a; 10 Serg. &. R. 336-7. And the challenge need not be made to the
court, but only to the prothonotary. Yet the Sheriff cannot be passed by in the
direction of process without cause, as he is the proper officer to execute
writs, except in case of partiality. Yet if process be directed to the coroner
without cause, it is not void. He cannot dispute the authority of the court, but
must execute it at his peril, and the misdirection is aided by thc statutes of
amendment. 11 Serg. & R. 303.
CHAMBER. A room in a house.
2. It was formerly hold that no freehold estate could be had in a chamber,
but it was afterwards ruled otherwise. When a chamber belongs to one person, and
the rest of the house with the land is owned by another the two estates are
considered as two separate but adjoining dwelling house's. Co. Litt. 48, b; Bro.
Ab. Demand, 20; 4 Mass. 575; 6 N. H. Rep. 555; 9 Pick. R. 297; vide 3 Leon. 210;
3 Watts. R. 243.
3 . By chamber is also understood the place where an assembly is held; and,
by the use of a figure, the assembly itself is called a chamber.
CHAMBER OF COMMERCE. A society of the principal merchants and traders
of a city, who meet to promote the general trade and commerce of the place. Some
of these are incorporated, as in Philadelphia.
CHAMBERS, practice. When a judge decides some interlocutory matter,
which has arisen in the course of the cause, out of court, he is said to make
such decision at his chambers. The most usual applications at chambers take
place in relation to taking bail, and staying proceedings on process.
CHAMPART, French law. By this name was formerly understood the grant
of a piece of land by the owner to another, on condition that the latter would
deliver to him a portion of the crops. IS Toull. n. 182.
CHAMPERTOR, crim. law. One who makes pleas or suits, or causes them to
be moved, either directly or indirectly, and sues them at his proper costs, upon
condition of having a part of the gain.
CHAMPERTY, crimes. A bargain with a plaintiff or defendant, campum
partire, to divide the land or other matter sued for between them, if they
prevail at law, the champertor undertaking to carry on the suit at his own
expense. 1 Pick. 416; 1 Ham. 132; 5 Monr. 416; 4 Litt. 117; 5 John. Ch. R. 44; 7
Port. R. 488.
2. This offence differs from maintenance, in this, that in the latter the
person assisting the suitor receives no benefit, while in the former he receives
one half, or other portion, of the thing sued for. See Punishment; Fine;
Imprisonment; 4 Bl. Com. 135.
3. This was an offence in the civil law. Poth. Pand. lib. 3, t. 1; App. n. 1,
tom. 3, p. 104; 15 Ves. 139; 7 Bligh's R. 369; S. C. 20 E. C. L. R. 165; 5 Moore
& P. 193; 6 Carr. & P. 749; S. C. 25 E. C. L. R. 631; 1 -Russ. Cr. 179
Hawk. P. C. b. 1 c. 84, s. 5.
4. To maintan a defendant may be champerty. Hawk. P. C. b. 1, c. 84, s. 8 3
Ham. 541; 6 Monr. 392; 8 Yerg. 484; 8 John. 479; 1 John. Ch. R. 444;, 7 Wend.
152; 3 Cowen, 624; 6 Coaven, 90.