Definition of Common Law

I. As distinguished from the Roman law, the modern civil law, the canon law, and other systems, the common law is that body of law and juristic theory which was originated, developed, and formulated and is administered in England, and has obtained among most of the states and peoples of Anglo-Saxon stock. Lux v. Haggin, 69 Cal. 255, 10 Pan. 674. 2. An distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England. Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92, 21 Sup. Ct. 561, 45 L. Ed. 765; State v. Buchanan. 5 Har. & J. (Md.) 365, 9 Am. Dec. 534; Lux v, Haggin, 69 Cal. 255, 10 Pac. 674; Barry v. Port Jervis, 64 App. Div. 268, 72 N. Y. Supp. 104. 3. As distinguished from equity law, it is a body of rules and principles, written or unwritten, which are of fixed and immutable authority, and which must be applied to controversies rigorously and in their entirety, and cannot be modified to suit the peculiarities of a specific case, or colored by any judicial discretion, and which rests confessedly upon custom or statute, as distinguished from any claim to ethical superiority. Kle-ver v. Seawall, 65 Fed. 395, 12 O. C. A. 661. 4. As distinguished from ecclesiastical law, It is the system of jurisprudence administered by the purely secular tribunals. 5. As concerns its force and authority in the United States, the phrase designates that portion of the common law of England (including such acts of parliament as were applicable) which had been adopted and was in force here at the time of the Revolution. This, so far as it has not since been expressly abrogated, is recognized as an organic part of the jurisprudence of most of the United States. Browning v. Browning, 3 N. M. 371, 9 Pan. 677; Guardians of Poor v. Greene, 5 Bin. (Pa.) 557; U. S. v. New Bedford Bridge, 27 Fed. Cas. 107. 6. In a wider sense than any of the foregoing, the "common law" may designate all that part of the positive law, juristic theory, and ancient custom of any state or nation which is of general and universal application, thus marking off special or local rules or customs. As a compound adjective "common-law" is understood as contrasted with or opposed to "statutory," and sometimes also to "equitable" or to "criminal." See examples below. -Common-law action. A civil suit, as distinguished from a criminal prosecution or a proceeding to enforce a penalty or a police regulation ; not necessarily an action which would lie at common law. Kirby v. Railroad Co. (Cl Ct) 106 Fed. 551; U. S. v. Bloc 33 Or. 584, 56 Pac. 275, 44 L. R. A. 266, 72 Am. St. Rep. 758.
—Common-law courts. In England, those administering the common law. Equitable L. Assur. Soc. v. Paterson, 41 Ga. 364, 5 Am. Rep. 535.
—Common-law crime. One punishable by the force of the common law, as distinguished from crimes created by statute. In re Greene (C. C.) 52 Fed. 104.
— Common-law jurisdiction. Jurisdiction of a court to try and decide such cases as were cognizable by the courts of law under the English common law; the jurisdiction of those courts which exercise their judicial powers according to the course of the .common law. People v. McGowan. 77 111. 644, 20 Am. Rep 254; In re Conner, 39 Cal. 98, 2 Am. Rep. 430; U. S. v. Power, 27 Fed. Cas. 607,
—Common-law lien. One known to or granted by the common law, as distinguished from statutory, equitable, and maritime liens; also one arising by implication of law, as distinguished from one created by the agreement of the parties. The Menominie (D. C.) 36 Fed. 197; Tobacco Warehouse Co. v. Trustee, 117 Ky. 478. 78 S W. 413, 64 L. R. A. 2l9.
—Common-law marriage. One not solemnized in the ordinary way, but created by an agreement to marry, followed by cohabitation; a consummated agreement to marry, between a man and a woman, per verba de præsenti, followed by cohabitation. Taylor v. Taylor, 10 Colo. App. 303, 50 Pac. 1049; Cuneo v. De Cuneo, 24 Tex. Civ. App. 436, 59 S. W. 284 ; Morrill v. Palmer, 68 Vt. 1, 33 Atl. 829, 33 In R. A. 411,
— Common-law mortgage. One possessing the characteristics or fulfilling the requirements of n. Mortgage at common law; not known in Louisiana, where the civil law prevnils; but such a mortgage made in another state and affecting lands in Louisiana, will be given effect there as a "conventional" mortgage, affecting third persons after due inscription. Gates v. Gaither, 46 La. Ann. 286, 15 South. 50.
— Common-law procedure acts. Three acts of parliament, passed in the years 1852, 1854. and I860, respectively, for the amendment of the procedure in the common-law courts. The common-law procedure act of 1852 is St. 15 & 16 Viet. c. 76; that of 1854, St. 17 & 18 Viet. c. 125; and that of 1860, St. 23 & 24 Viet. c. 126. Mozley & Whitley.
—Common-law wife. A woman who was party to a "common-law marriage," as above defined; ot one who, having lived with a man in. a relation of concubinage during his life, asserts a claim, after his death, to have been his wife according to the requirements of the common law. In re Brush, 25 App. Div. 610, 49 N. Y. Supp. 803.
—Common lawyer. A lawyer learned in the common law. Common opinion is good authority in law. Co. Litt. 186a; Bank of Utica v. Mer-sereau, 3 Barb. Ch. (N. Y.) 528, 577, 49 Am. Dec. 189.