1. 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 Pac. 674. 2. As 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. t. 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 Jer vis, 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 C. 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 Pac. 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. (C. C.) 106 Fed. 551; U. S. v. Block, 24 Fed. Cas. 1,174. Common law assignments. Such forms of assignments for the benefit of creditors as were known to the common law, as distinguished from such as are of modern invention or authorized by statute. Ontario Bank v. Hurst, 103 Fed. 231, 43 C. C. A. 193. Common law cheat. The obtaining of money or property by means of a false token, symbol, or device; this being the definition of a cheat or “cheating” at common law. State v. Wilson, 72 Minn. 522, 75 N. W. 715; State v. Renick, 33 Or. 584, 56 Pac. 275, 44 L. R. A. 266, 72 Am. St. Rep. 758. Common law conrts. In England, those administering the common la,w 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. 219. 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 prsesenti, 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 L. R. A. 411. Common law mortgage. One possessing the characteristics or fulfilling the requirements of ». Sortgage at common law; not known in Louisiana, where the civil law prevails; 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 18G0, respectively, for the amendment of the procedure in the common law courts. The common law procedure act of 1852 is St. 15 & 16 Vict. c. 76; that of 1854, St. 17 & 18 Vict. c. 125; and that of I860. St. 23 & 24 Vict. c. 126. Mozley & Whitley. Common law wife. A woman who was party to a “common law marriage,” as above defined; or 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 At>p. Div. 610, 49 N. Y. Supp. 803. Common lawyer. A lawyer learned in the common law. Common opinion is good authority in law.
Law Dictionary – Alternative Legal Definition
(A) The common law is that which derives its force and authority from the universal consent and immemorial practice of the people. It has never received the sanction of the legislature, by an express act, which is the criterion by which it is distinguished from the statute law. It has never been reduced to writing; by this expression, however, it is not meant that all those laws are at present merely oral, or communicated from former ages to the present solely by word of mouth, but that the evidence of our common law is contained in our books of Reports, and depends on the general practice and judicial adjudications of our courts. 2. The common law is derived from two sources, the common law of England, and the practice and decision of our own courts. In some states the English common law has been adopted by statute. There is no general rule to ascertain what part of the English common law is valid and binding. To run the line of distinction, is a subject of embarrassment to courts, and the want of it a great perplexity to the student. Kirb. Rep. Pref. It may, however, be observed generally, that it is binding where it has not been superseded by the constitution of the United States, or of the several states, or by their legislative enactments, or varied by custom, and where it is founded in reason and consonant to the genius and manners of the people. 3. The phrase common law occurs in the seventh article of the amendments of the constitution of the United States. In suits at common law, where the value in controversy shall not exceed twenty dollar says that article, the right of trial by jury shall be preserved. The common law here mentioned is the common law of England, and not of any particular state. The term is used in contradistinction to equity, admiralty, and maritime law. 3 Pet. 446; 1 Bald. 554. 4. The common law of England is not in all respects to be taken as that of the United States, or of the several states; its general principles are adopted only so far as they are a
pplicable to our situation. (B) (I) Law that was decided and declared by justices in Great Britain, which has become the basis of custom and usage in society and upon which legal precedents have been made and developed over a course of several hundred years. (II) That which derives its force and authority from the universal consent and immemorial practice of the people.