Con delegates

Advocates who
have been appointed judges of the
high court of delegates are so culled.
Shelf, on Lun. 310.

CONDEMNATION, mar. law , is
the sentence of a court of competent
jurisdiction that a ship or vessel taken
as a prize on the high seas, was liable
to capture, and was properly and
legally captured.

2. — By the general practice of the
law of nations, n sentence of condem-
nation is, at present, generally deemed
necessary in order to divest the title
of a vessel taken as a prize ; until this
has been done the original owner may
regain his property ulthough the ship
may have been in possession of the
enemy twenty-four hours, or carried
infra pnesidia. 1 Rob. Rep. 134 ; 3
Rob. Rep. 97, n. ; Carth. 423; Chit.
Law of Nat. 99, 100; 10 Mod.
79; Abb. on Sh. 14; Wesk. on Ins.
h. t. ; Marsh, on Ins. 402. A sen-
tence of condemnation is generally

binding everywhere. Marsh, on Ins.
402.

3. — The term condemnation is also
applied to the sentence which declares
a ship to bo unlit for service ; this sen-
tence and the grounds of it may how-
ever be re-examined and litigated by
parties interested in disputing it. 0
Esp. N. 1*. C. 05 ; Abb. on Shipp. 4.

Condemnation, civil law, is a sen-
tence of judgment which condemns
some one to do, to give, or to pay some-
thing ; or which declares that his claim
or pretensions arc unfounded. This
w'ord is also used by common lawyers,
though it is more usual to say convic-
tion, both in civil and criminal cases.
It is a maxim that no man ought to be
condemned unheard, or without the op-
portunity of being heard.

CONDICTION, Lat. condictio. This
term is used in the civil law in the same
sense as action. Condictio certi , is an
action for the recovery of a certain
thing, us our action of replevin ; con-
dictio inccrli , is an action given for the
recovery of an uncertain thing. Dig.
12,1.

CONDITION, contracts , wills. In
its most extended signification a condi-
tion is a clause in a contract or agree-
ment which has for its object to suspend,
to rescind, or to modify the principul
obligation ; or in cast* of a will, to sus-
pend, revoke, or modify the devise or
bequest.

2. — Conditions suspend the obliga-
tion when it is to have no effect until
they are fultilled ; as, if I bind myself
to pay you one thousand dollars on
condition that the ship Thomas Jefter-
son shall arrive in the United States
from Iluvre; the contract is suspended
until the arrival of the ship.

3. — The condition rescinds the con-
tract ; as, when 1 sell you my horse,
on condition that he shall be alive on
the first day of January, and he dies
before that time.

4. — A condition may modify the con-
tract; us, if I s«*ll you two thousand
bushels of corn, upon condition that my
crop shall produce that much, and it
produces only fifteen hundred bushels.

284

CON

CON

5. — In a less extended acceptation,
but in a true sense, a condition is a
future and uncertain event, on the
existence or non-existencc of which is
made to depend, either the accomplish-
ment, the modification, or the rescision
of an obligation or testamentary dis-
position.

0. — There is a marked difference
between a condition and a limitation ;
when a thing is given generally, but
the gift may be defeated upon the hap-
pening of an uncertain event, the latter
is called a condition; but when it is
given to be enjoyed until the event ar-
rives, it is a limitation. See Limitation ,
('States. It is not easy to say when a
condition will be considered a covenant
and when not, or when it will be holden
to be both. Platt on Cov. 71.

7. — Events foreseen by conditions
are of three kinds ; some depend on the
acts of the persons who deal together,
as if the agreement should provide
that a partner should not join another
partnership; others are iudc|>endent of
the will of the parties, us, if I 84*11 you
one thousand bushels of corn, on con-
dition that my crop shall not lie de-
stroyed by a fortuitous event, an act of
God; nn<l some depend in part on the
contracting parties and partly on the
act of God, ns if it Ik* provided that such
merchandise shull arrive by a certain
day.

8. — A condition may be created by
inserting the very word e audition , or
on eorulition , in the deed or agreement ;
there are, however, other words that
will do so as effectually, as proviso, if,
&c. Bnc. Ah. Conditions, A.

!). — Conditions arc of various kinds :
1, ns to their form, they are express or
implied ; 2, as to their object , they are
lawful or unlawful ; 3, as to tin* time
token tlictj arc to take effect , they are
precedent or subsequent; 4, as to their
nature, they arc possible or impossible;
5, as to their ojteration , they art; posi-
tive or negative ; H, ns to their divisi-
bility, they are copulative or disjunc-
tive; 7, as to their agreement with the
contract , they are consistent or repug-
nant ; 8, as to their effect, they arc re-

solutory or suspensive. These w ill be
severally considered.

10. — An express condition is one
created by express words, as for in-
stance, a condition in a lease that it
the tenant shall not pay the rent at the
day, the lessor may re-enter. Litt.
328. Vide Re-entry.

11. — An implied condition is one
created by law, and not by express
words ; for example, at common law,
the tenant for life holds uj>on the im-
plied condition not to commit waste.
Co. Litt. 233, b.

12. — A lairful or legal condition is
one made in consonance with the law ;
this must be understood of the law as
existing at the time of making the con-
dition, for no change of the law, can
change the force of the condition. For
example, a conveyance was made to
the grantee, on condition that he should
not aliene until he reached the age of
twenty-five years. Before he acquired
this age he aliened, and made a second
conveyance alter he obtained it ; the
first dee<l was declnred void, and the
last valid. When the condition was
imposed, tw'onty-fivc was the age of
majority in the state ; it was afterwards
changed to twenty-one; under these
circumstances the condition was held
to l»c binding. 3 Miss. U. 40.

13. — An unlawful or illegal condi-
tion is one forbidden by law. Unlaw-
ful conditions have for their object, 1st,
to do something malum in se, or malum
prohibitum ; 2dly, to omit the perlbrm-
ance of some duty n'quired by law ;
3dly, to encourage such act or omis-
sion. 1 1*. Wins. 185). When the
law prohibits, in express terms, the
transaction in respect to w hich the con-
dition is entered, and declares it void,
such condition is then void. 3 Binn.
R. 333 ; but when it is prohibited,
without being declared void, ulthough
unlawful, it is not void. 12 S. & U.
237.

1 4. — A condition precedent is one
which must be j»crformed Ixfore the
estate will vest, or the obligation is to
lx? formed. 2 Dali. It. 317. Whether
a condition shall be considered as pre-

CON

CON

285

cedent or subsequent, dejiends not on
the form or arrangement of the words,
but on the manifest intention of the
parties, on the fair construction of the
contract. 2 Fairf. K. 318 ; 5 Wend.
R. 496; 3 Pet. R. 374; 2 John. R.
148; 2 Caines, R. 352; 12 Mod. 461 ;
6 Cowen, R. 627 ; 9 Wheat. R. 350 ;
2 Virg. Cas. 138; 14 Mass. R. 453;
1 J. J. Marsh. R. 591 ; 6 J. J. Marsh.
R. 161; 2 llibb, R. 547; 6 Litt. R.
151 ; 4 Rand. R. 352.

1 5. — A subst'quent condition is one
which enlarges or defeats an estate or
right, already created. A conveyance
in fee, reserving a life estate in a part
of the land, and made ujion condition
that the grantee shall pay certain sums
of money at divers times to several
persons, passes the fee upon condition
subsequent. 6 Greenl. R. 106. Some-
times it becomes of great importance to
ascertain whether the condition is pre-
cedent or subsequent. When a prece-
dent condition becomes itn|>ossiblc by
the net of God, no estate or right vests;
but if the condition is subsequent, the
estate or right becomes absolute. Co.
Litt. 206, 208; I Sulk. 170.

10. — A jjossiff/r condition is one
which may Ik; performed, and there is
nothing in the laws of nature to pre-
vents its performance.

17. — An impossible condition is one
which cannot be nccoinplislied accord-
ing to the laws of nature; ns, to go
from the United States to Europe in
one day ; such a condition is void. 1
Swift’s Dig. 93; 6 Toull. n. 481.
When a condition becomes impossible
by the act of God, it either vests the
estate, or does not, us it is precedent
or subsequent : when it is the former,
no estate vests ; when the latter, it be-
comes absolute. Co. Litt, 206, a, 218,
a; 3 Pet. R. 374; 1 Hill. Ah. 249.
When the performance of the condition
becomes impossible by the act of the
party who imposed it, the estate is ren-
dered absolute. 3 Bro. Pari. Cas.
359. Vide 1 Paine’s R. 052 ; Bac.
Ab. Conditions, M ; Roll. Ab. 420 ; Co.
Litt. 206 ; 1 Rop. Leg. 505 ; Swinb.
pt. 4, s. 6 ; Inst. 2, 4, 10 ; Dig. 28, 7,

1 ; Id. 44, 7, 31 ; Code 6, 25, 1 ; 6
Toull. n. 486, 686 ; and the article

Impossibility,

18. — A positive condition consists in
the case where a thing that may or
may not happen, shall happen ; ns, If
1 marry. Poth. Ob. part. 2, c. 3, art.

Mi.

19. — A negative condition is that
which consists in the case where some-
thing that may or may not happen,
shall not happen ; as, If I do not marry.
Poth. Ob. n. 200.

20. — A copulative condition, is one
of severul distinct matters, the whole of
which arc made precedent to the vest-
ing of an estate or right. In this case
the entire condition must be performed,
or the estate or right can never arise
or take place. 2 Frecm. 186. Such
a condition differs from a disjunctive
condition, which gives to the party the
right to perform the one or the other ;
for, in this case, if one becomes impos-
sible by the act of God, the whole w ill,
in general, Ik; excused. This rule,
however, is not without exception. 1
B. & P. 242; Cro. Eli*/.. 780; 5 Co.
21; 1 Lord Raym. 279. Vide Can-
j u net i vc ; 1) is jit native .

21. — A disjunctive condition is ono
which gives the party to be affected by
it, the right to |>erform one or the other
of two alternatives.

22. — A consistent condition is one
which agrees with other parts of the
contract.

23. — A repugnant condition is ono
which is contrary to the contract ; as,
if I grant to you a house and lot in fee,
upon condition that you shall not
aiienc, the condition is repugnant and
void, as being inconsistent with the
estate granted. Bac. Ab. Conditions,
L; 9 Wheat. 325; 2 Ves. jr. 324.

24. — A resolutory condition is one
which has for its object, when accom-
plished, to revoke the principal obliga-
tion. This condition does not suspend
either the existence or the execution of
the obligation, it merely obliges the
creditor to return what lie lias re-
ceived.

25. — A suspensive condition is ono

286

CON

CON

which suspends the fulfilment of the i
obligation until it has been performed ; j
as, if a man bind himself to pay one
hundred dollars, upon condition that (
the ship Thomas Jefferson shall arrive
from Europe. The obligation in this
case, is suspended until the arrival of |
the ship, when the condition having
been performed, the obligation becomes 1
absolute, and it is no longer conditional. I
A suspensive condition is in fact a con-
dition precedent,

26. — Pothier further divides condi-
tions into potestative, casual and mixt.

27. — A jx)tc slat ire condition is that
which is in the power of the person in
whose favour it is contracted ; ns if 1
engage to give my neighbour a sum of
money, in case he cuts down a tree
which obstructs my prospect. Poth.
Obi. Pt. 2, c. 3, art. 1, § 1.

28. — A casual condition is one which
depends altogether upon elmnee, and
not in the power of the creditor, as the
following ; if 1 have children ; if I
have no chitlren ; if such a vessel ar-
rives in the United States, &c. Poth.
Ob. n. 201.

29. — A mixed condition is one which
depends on the will of the creditor and
of a third person, as the following, if
you tnarrv my cousin. Poth. Ob. n.

301.

Condition, j)crsons , is the situation
in civil society which creates certain
relations between the individual, to
whom it is applied, and one or more
others, from which mutual rights and
obligations arise. Thus the situation
arising from murriago gives rise to tlie
conditions of husband and wife ; that
of paternity to the conditions of father
and child. Domat, tom. 2, liv. 1, tit. 9,
s. 1, n. 8.

2. — In contracts every one is pre-
sumed to know the condition of the |>er-
son with whom he deals. A man mak-
ing a contract with an infant cannot
recover against him for a breach of the
contract, on the ground that he was
not aware of his condition.

CONDITIONAL OBLIGATION,
is one which is superseded by a condi-
tion under which it was created and

which is not yet accomplished. Poth.
Obi. n. 176, 198.

CON DITIONS OF S ALE, contracts.
The terms upon which the vendor of pro-
perty by auction proposes to sell it ; the
instrument containing these, terms,
when reduced to writing or printing, is
also called the conditions of sale.

2. — It is always prudent and advis-
able that the conditions of sale should
be printed and exposed in the auction
room ; when so done, they are binding
on both parties, and nothing that is said
at the time of sale, to add to or vary
such printed conditions, will be of any
avail. 1 II. Bl. 289 ; 12 East, 6 ; 6
Ves. 330 ; 15 Ves. 521 ; 2 Munf. Rep.
119; 1 Dcsauss. Ch. Rep. 573 ; 2 De-
gauss. Ch. R. 320; 11 John. Rep.
655 ; 3 Camp. 285. Vide forms of
conditions of sale in Bnbington on
Auctions, 233 to 243; Sugd. Vend.
Appx. No. 4. Vide Auction; Auc-
tioneer; Pujfcr.

CONDONATION, a term used in
the canon law. It is a forgiveness by
the husbnnd of his wile, or by a wife
of her husband, of ndultery committed,
with an implied condition that the in-
jury shall not bo repeated, and that the
other party shall lx* treated with con-
jugal kindness. 1 Ilagg. R. 773 ; 3
Eccl. Rep. 310. Sec 5 Muss. 320 ; 5
Muss. 69 ; 1 Johns. Ch. R. 488.

2. — It may be express or implied, ns
if a husband knowing of his wife’s in-
fidelity, cohabit with her. 1 Hagg.
Rep. 789 ; 3 Eccl. R. 338.

3. — Condonation is not, for many
reasons, held so strictly against a wifo
as against a husband. 3 Eccl. R. 330;
lb. 341, n.; 2 Edw. R. 207. As all
condonations by operation of law, arc
expressly or impliedly conditional, it
follows that the effect is taken oil’ by
the repetition of misconduct. 3 Eccl.
R. 329 ; 3 Phillim. Rep. 6 ; 1 Eccl.
R. 35 ; and cruelty revives condoned
adultery. YVorsley v. Worslcy, cited
in Durant v. Durant, 1 Ilagg. Rep.
733; 3 Eccl. Rep. 311.

4. — In New York, an act of cruelty
alone, on the part of the husband, does
not revive condoned adultery, to entitle

CON

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287

the wife to a divorce. 4 Paige’s R.
4G0. Sec 3 Edw. R. 207.

6. — Where the parties have separate
beds, there must, in order to found con- |
donation, be something of matrimonial
intercourse presumed ; it does not rest
merely on the wife’s not withdrawing
herself. 3 Eccl. R. 341, n. ; 2 Paige,
R. 108.

6. — Condonation is a bar to a sen-
tence of divorce. 1 Eccl. Rep. 284 ;

2 Paige, R. 108.

7. — In Pennsylvania, by the act of
the 13th of March, 1815, §7,0 Reed’s
Laws of Penna. 288, it is enacted that
“ in any suit or action for divorce for
cause of adultery, if the defendant shall
allege and prove that the plaintiff has
admitted the defendant into conjugal
society or embraces, after lie or she
knew of the criminal fact, or that the
plaintiff (if the husband) allowed of his
wife’s prostitutions, or received hire for
them, or exposed his wife to lewd com-
pany, whereby she became ensnared
to the crime aforesaid, it shall be a
good defence, and jxirpctual Ixir against
the same.” The same rule may be
found, perhaps, in the codes of most
civilized countries. Villanova Y Maries,
Materia Criminal Forcnsc, Obs. 11, c.
20, n. 4. Vide generally, 2 Edw.
207 ; Dev. Eq. R. 352 ; 4 Paige, 432 ;

1 Edw. R. 14 ; Shelf, on M. & D. 445.

1 John. Ch. R. 488; 4 N. Damp. R.
4 62 ; 5 Mass. 320.

CONDUCT, law of nations, is used
in the phrase safe conduct, to signify
the security given, by authority of the
government, under the great seal, to a
stranger, for his quietly coming into
and passing out of the territories over
which it has jurisdiction. A safe con-
duct ditlcrs from a passport, the former
is given to enemies, the latter to friends
or citizens.

CONDUCTOR OPERARUM, civil
law. One who undertakes, for a re-
ward, to jK-rform a job or piece of
work for another. See locator Ope-
ns.

CONFEDERACY, intern, law , is
an agreement between two or mom
states or nations, by which they unite

for their mutual protection and good.
This term is applied to such agreement
j between two independent nations, but it
is list'd tab signify the union of different
states of the same nation, as the con-
federacy of the states.

2. — The original thirteen states in
1781, adopted for their federal govern-
ment the “ Articles of confederation
and perpetual union between the
States,” which continued in force until
the present constitution of the United
States went into full operation, on the
30th day of April, 1789, when Presi-
dent Washington was sworn into office.
Vide 1 Story on the Const. B. 2, c. 3
and 4.

Confederacy, crim. law , is an
agreement between two or more per-
sons to do an unlawful act, or an act,
which though not unlawful in itself,
bccomc.s so by the confederacy. The
technical term usually employed to sig-
nify this offence, is conspiracy, (q. v.)

Confederacy, equity pleading. The
fourth part of a bill in chancery usual-
ly charges a confederacy ; this is either
general or special,

2. — The first is by alleging general
charge of confederacy between the de-
fendants and other jiersons to injure or
defraud the plaintiff. The common
form of the charge is, that the defend-
ants combining and confederating toge-
ther, to and with divers other jiersons
as yet to the jiluintiff unknown, but
whose names, when discovered, he
prays may be inserted in the bill, and
they be made jiarties thereto, with pro-
jicr nnd apt words to charge them with
the jiremises, in order to injure nnd
oppress the plaintiff in the premises,
do absolutely refuse, &c. Mitf. Eq.