J < . u z u . C > t/1 IP < u Z . J jnj THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF John Adams J < . u z u . c > Ifl oi < id z . J -iu m |_ £ <-. m -r \»/ V*0 i_ (1 . < . u) 5 n j A MANUAL ELEMENTARY LAW BEING A SUMMARY OF THE WELL-SETTLED ELEMENTARY PRINCIPLES OF AMERICAN LAW BY WILLIAM P. FISHBACK LATE DEAN OF THE INDIANA LAW SCHOOL FOURTH REVISED IMPRESSION INDIANAPOLIS AND KANSAS CITY THE BOWEN-MERRILL COMPANY 1901 Copyright 1896 BY THE BOWEN-MERRILL CO. PRESS OF CARLON & HOLLENBE^K, INDIANAPOLIS. \3 < PREFACE In this manual an effort has been made to put the reader in possession of a summary of the well-settled elementary principles of the law, by stating them dogmatically in language ay simple as the subject admits of. After all that is said derisively about the glorious uncertainty of the law, there are many rules of civil action regulating the political, business and domestic relations of life which may be said to be settled. It has been the effort in these pages to collect these rules from authoritative sources and print them in a form at once comprehensive and compact. What may be objected to as a defect I count one of the chief merits of the book, viz., the absence of notes and citations. There is no claim to originality except in the matter of the method of stating and arranging the materials which have been accumulated by the labors of others. The fruit of these labors has been appropriated with freedom and without compunction, and it is my belief that no rule of law is stated which is not supported by adequate authority. It would have been an easy matter to swell the size of the volume by a collection of foot-notes and a list of decided cases; but for the beginner I believe that such citations tend to con- fuse, ratherthan to instruct. Of course, this does not (v) yi PREFACE. apply to advanced students, or to those who are pur- suing a post-graduate or university course of tech- nical professional instruction, but it is relevant to the vast majority of beginners who are to make up the bulk of the legal profession. The book may have its use in other fields. The general reader may find here in outline a statement of the sources and foundations of the laws under which we live, as well as many rules and principles of business which may serve to admonish and guide him in the performance of the duties of citizenship. Some knowledge of these should form a part of the education of every citizen, and a familiar acquaint- ance with them will create in the minds of all a higher sense of the dignity and usefulness of the legal profession, and a better appreciation of the value of upholding a system of jurisprudence, the maintenance of which is essential to the progress if not to the preservation of society. W. P. F. January, 1896. TABLE OF CONTENTS. CHAPTER I. laws in general. Section. Page. 1. Necessity for laws 1 2. Human laws 1 3. Laws in the United States 2 4-5. Law r s and morals 2 6. Municipal law 3 7-8. The law-making power 4 9. The supreme court 4 10-12. Kinds of laws in the United States 6 CHAPTER II. INTERNATIONAL LAW AND CITIZENSHIP. 13-14. International law 8 15-16. Neutrality 9 17-19. Interstate law 10 20-21. Citizenship 11 22. Aliens 13 CHAPTER III. WRITTEN LAWS. 23. Constitutions 14 24. Statutes 14 25. Rules as to validity 15 26. Retroactive statutes 16 27. Public or private 16 28-31. Interpretation 17 (Vii) Vlll TABLE OF CONTENTS. CHAPTER IV. unwritten laws. Section. Page. 32. Common law 20 33. Its sources 20 34. Its growth 21 35. Function of the courts 22 36. Common law in the United States 23 37. Importance of precedents.... 24 38-39. Customs 24 CHAPTER V. RIGHTS. 40. Legal rights 28 41. Meaning of natural rights 29 42. Right to personal security 29 43. Right to life 29 44. Right of personal liberty 30 45. Habeas Corpus 31 46. Right to health 31 47. Right to reputation 31 48-49. Right of property 32 CHAPTER VI. PROPERTY IN GENERAL. 50. Basis of ownership 34 51. Origin of private ownership 35 52. Its importance 35 53. Kinds of property 36 CHAPTER VII. REAL PROPERTY. 54-55. Titles in the United States 39 56. Lands acquired by treaty 40 57. Indian titles 40 58. Injustice to the Indians 41 59. Definitions 42 60. Lands bounded by streams 43 61-62. Islands 44 TABLE OF CONTENTS. ix Section. Paqb. 63-64. Fixtures 4") 65-66. Boundaries 47 67. Land bounded by highways 47 68. Appurtenances 48 CHAPTER VIII. INCORPOREAL PROPERTY. 69. Kinds of incorporeal property 49 70. Advowson 49 71. Tithes 49 72. Right of common 50 73. Right of way 51 74. Private rigbts of way 5 I 75. Temporary right of way 54 76. Easement 54 77. Offices and dignities 55 78. Franchises 56 79. Rents 56 L 80-81. Liens 56 CHAPTER IX. FEUDAL SYSTEM. 82. Origin and nature 59 83. Allodial lands 60 84. Wardship and marriage 61 85. Local courts H_» 86. Homage and fealty 62 87. Military service 63 88. Other obligations of tenant 6 I 89. Domesday book '14 90. Escuage »>4 91. Changes in feudal system 65 92. Abolition of the system 65 CHAPTER X. ANCIENT TENCRES. 93-94. Tenure <17 95. Lord paramount 67 96. Middle lord and tenant paravail 67 X TABLE OF CONTENTS. Section. Page. 97. Free or base tenure 67 98. Frank tenement or villenage 68 99. Knight-service 68 100. Aids 68 101. Relief 68 102. Primer seizin 69 103. Wardship 69 104. Marriage 69 105. Fines 1 69 106. Escheat 69 CHAPTER XI. MODERN TENURES. 107-108. Influence of feudal system 70 109-110. Restoration of allodial tenure 71 111. Estates 71 — 112. Fee-simple 72 113. Fee in abeyance 72 114. Use of word " heirs " 72 —115. Estates for life 73 116. Rights of life tenant 74 117. Emblements „ 74 118. Taxes and interest 75 119. Waste 75 —120. Estates for years 75 121. Rent 76 122. Duration of tenancy 77 123. Distress 78 124. Apportionment of rent 79 -425. Estates at will 79 126. Estates at sufferance 79 127. Base fee 79 128. Conditional fee 80 129-130. Estates in tail..... 80-81 131. Tenancy by the curtesy 82 132. Dower 82 133. Assignment of dower 83 --134. Estates upon condition 83 135. Estates upon condition implied 83 136. Estates upon condition expressed 84 137. Conditions precedent or subsequent 84 TABLE OF CONTENTS. XI Section. Page. 138. Estates in remainder 85 139. Rule in Shelley's Case 87 140. Executory clevises 87 141. Estates in reversion 88 142. Estates in severalty 88 143. Joint tenancy 88 144. Tenancy in common 89 CHAPTER XII. TITLE TO REAL PROPERTY — HOW ACQI'IRED. 145. "Ways of acquiring title 90 146. Title by occupancy 90 147. Adverse possession 91 148. Occupying claimant 92 149. Title by marriage 92 150-151. Title by descent 92 152. Title by devise 93 153-157. Wills 94 158. Title by purchase 96 159. Title bonds 97 160. Deeds by dispossessed owners 97 161. Form of deeds 98 162. Record of deeds 98 163. Parties to deeds 98 164. Guardians' deeds 99 165. Deeds of partners 99 166. Deeds of corporations 99 167. Powers of attorney 100 168. Deeds by officers 100 169. Description of land 100 170-172. Title by eminent domain 101 173. Title by escheat 103 174. Title by forfeiture 103 CHAPTER XIII. PERSONAL PROPERTY. 175. Definition 104 17t;. Title— How acquired 104 177. Burial rights 105 Xll TABLE OF CONTENTS. CHAPTER XIV. decedents' estates. Section. Page. 178. Testator and intestate 106 179. Statutes of descent and distribution 10tf 180. Administrator 106 181. Executor 107 CHAPTER XV. CONTRACTS IN GENERAL. 182-183. Growth of right to contract 109 184. Contract denned 110 185. Capacity of parties -11 186. Void and voidable contracts Ill 187. Executory or executed contracts 112 188. Written contracts 112 189. Parol contracts 113 190. Express contract 113 191. Meeting of minds 113 192. Time of contract 114 193. Implied contracts 114 194. Contracts of record 115 CHAPTER XVI. PARTIES TO CONTRACTS. 195. Who may make valid contracts 116 196. Infants 117 197. Infants' contracts for necessaries 117 198. Frauds of infants 118 199. Executed contracts of infants 118 200. Disaffirmance by infants 118 201. Duress 119 202. Insane persons 119 203. Drunkenness 120 204. Married women 121 205. Corporations 121 206-209. Contracts by agents 122 TABLE OF CONTENTS. Xlll CHAPTER XVII. of particular contracts. Section. Page. 210. Sale and exchange 127 211. Existence of thing sold 127 212. Transferof title 129 213. Delivery 129 214. Interpretation of contract 130 215. Bailment 131 216. Common carrier 132 217. Partnership 134 218. Formation of partnership 135 219. Rights of partners 135 220-222. Dissolution of partnership 136 223. Individual and partnership creditors 137 224. Rights after dissolution 138 225. Limited partnerships 138 226. Good will 138 CHAPTER XVIII. negotiable instruments. 227. Definitions 139 228. Origin of the law merchant 139 229. Foreign and inland bills 140 230. Form of bills 140 231. Indorsement 140 232. Duty of the holder 141 233. Special indorsements 141 234. Signatures and date 142 235. Certainty 142 236. Surety, guarantor, indorser and assignor 143 237. Law of the place 144 238. Agents 144 239. Capacity of parties 145 240. Consideration 145 241. Purchase for value without notice 145 242. Bills of lading 145 mr x i v TABLE OF CONTENTS. CHAPTER XIX. contracts of insurance. Section. Page. 243. Definition 147 244. Contract, how made 147 245. How interpreted 148 246. AVarranty or representation 148 247. Payment of premium 149 248. Waiver of payment 149 249. Insurable interest 150 250. Increase of risk 150 CHAPTER XX. CONSIDERATION. 251. Definition 151 252. Adequacy of consideration 152 253. Prior obligation as consideration 152 254. Release by creditors 153 255. Disputed claims 153 256. Impossible and illegal considerations 153 257. Executed and executory considerations 154 258. Past considerations 154 259. Failure and waiver of consideration 154 CHAPTER XXI. STATUTE OF FRAUDS. 260. History of the statute 156 261. Provisions of the statute 156 262. Promises of executors or administrators 157 263. Debt, default and miscarriage 158 264. Original or collateral obligation 158 265. Agreements in consideration of marriage 159 266. Contracts for sale of lands 159 267. Agreements not to be performed within a year 160 268. The note or memorandum 160 269. Signature to memorandum 162 270. Sale of goods, wares and merchandise 162 TABLE OF CONTENTS. xv CHAPTER XX I L corporations. Section. Page. 271. Definition 164 272. Powers of corporations 165 273. Organization of corporations 165 274. Charter 166 275. Vested rights 166 276. Dissolution 167 CHAPTER XXIII. SECURITY OF THE PERSON. 277. The right to life 168 278. When life may be taken 168 279. Remedies 169 280. Recovery for injuries causing death 169 CHAPTER XXIV. ASSAULT AND BATTERY. 281. Assault defined 171 282. Ability and intent to injure 171 283. Battery defined 172 284. Intent of the wrong-doer 172 285. Consent of the one injured 172 286. Justification for battery 172 287. Self-defense 173 288. The remedies 174 CHAPTER XXV. FALSE IMPRISONMENT. 289. Definition 176 290. The detention or restraint 17t> 291. Unlawfulness of the restraint 17(1 292. Lawful restraint without legal process 177 293. Lawful restraint with legal process 17!> 294. Officers 179 295. Remedy 180 296. Privilege from arrest 180 297. Remedy for arrest of privileged persons 181 XVI TABLE OF CONTENTS. CHAPTER XXVI. malicious prosecution. Section. Page. 298. Elements of the wrong 182 299. The malicious motive 183 300. Absence of probable cause 184 301. Proceeding must have terminated 185 302. Malicious prosecution of civil actions 186 303. Malicious abuse of process 186 304. Remedy 187 CHAPTER XXVII. DEFAMATION. 305. The right to reputation 189 306. Libel and slander 190 307. Slander I 90 308. Slander imputing crime 191 309. Slander imputing disease 192 310. Slander affecting office, trade or profession 192 311. Slander not actionable per se 192 312. Slander of title 193 313. Libel I 93 314. Definition 193 315. Newspapers 194 316. Publication 195 317. Construction 196 318. Certainty 197 319. Malice 198 320. Justification 200 321. Privilege 201 322. Absolute privilege 201 323. Legislative proceedings 202 324. Judicial proceedings 202 325. Naval and military matters 203 326. Qualified privilege 203 327. Matters of public interest and concern 204 328. Communications made under duty 200 329. Communications made in self-defense 207 330. Remedy 207 331. Damages . 2 °7 TABLE OF CONTENTS. xv ii CHAPTER XXVIII. injuries to civil am) political rights. Section. Page. 332. General nature I'll 333. Right of suffrage 211 334. Right to assemble 212 335. Right to bear arms 213 336. Freedom of speech and of the press 213 337. Right to office 214 338. Religious liberty 214 339. Right to education 215 340. Unlawful searches 215 341. Performance of official duties 216 342. Duties of the legislature 217 343. Executive and administrative duties 218 344. Judicial duties 219 345. Public duties by private persons 220 346. Right to own property 221 347. Right to make contracts 222 348. Right to labor, employ labor and do business 222 349. Strikes 221 350. Remedy 224 CHAPTER XXIX. FRAUD. 351. Kinds of fraud 225 352. Frauds in confidential relations 225 353. Husband and wife 226 354. Parties engaged to marry 226 355. Illegal sexual relations 227 356. Parent and child 228 357. Trustees 228 358. Principal and agent 22!' 359. Partners 230 360. Corporations 230 361. Attorneys, physicians and clergymen 231 362. Persons of weak mind 2.S1 363. Frauds between equals 233 364. Definition of fraud 233 365. Frauds by silence 234 366. Equal opportunities for knowledge 235 XViii TABLE OF CONTENTS. Section. Page. 367. Elements of fraud 235 368. Representations 236 369. Clearness and certainty 236 370. Matters of law..... 237 371. Matters of opinion 237 372. Matters of fact 238 373. Fraudulent promises 238 374. Materiality 239 375. Falsity 239 376. Wrong-doer's knowledge 239 377. Wrong-doer's intent that the representation be acted on 240 378. Who entitled to rely on representations 240 379. Representations must have been acted on 241 380. Injured party's belief 241 381. Damage 242 382. Remedy 242 383. Personal injuries through fraud 242 CHAPTER XXX. NUISANCE. 384. How related to negligence 244 385. Nuisance defined 245 386. " Coming to a nuisance " 247 387. Intent or motive immaterial 248 388. Care or negligence in nuisance 248 389. What may be nuisances 249 390. Kinds of nuisance 251 391. Public nuisances 251 392. Private nuisances 251 393. Nuisances both public and private 252 394. Authorized nuisances 252 395. Obstruction of highways 253 396. What is a highway 253 397. Purprestures 254 398. What is an obstruction 254 399. Duration of the obstruction 255 400. Objects near the highway 255 401. Authorized obstructions 255 402. The special injury ." 256 403. Remedies 257 404. Evidence of nuisance 258 TABLE OF CONTENTS. X ix CHAPTER XXXI. negligence. Section. Page. 405. Actionable negligence 259 406. Contractor tort 259 407. Elements of actionable negligence 260 408. Definition 260 409. The inadvertence 260 410. Inevitable accident 261 411. Ordinary care under the circumstances 261 412. No degrees in negligence 262 413. Acts or omissions 262 414. Legally responsible person 262 415. Intoxication 263 416. Physical infirmity 263 417. The person to whom the duty is owing _' Hearsay evidence 347 Exceptions to the rule excluding hearsay evidence 347 Examination of witnesses 348 Burden of proof 349 Arguments and instructions 349 Verdicts 349 Motions for new trial 350 Motions in arrest of judgment 351 Forms of judgment 351 Appeals and writs of error 352 Execution 352 xx i v TABLE OF CONTENTS. CHAPTER XLII. equity and proceedings in equity. Section. Page. 575-576. Equity jurisdiction 354 577. Injunctions— Prohibitory and mandatory 355 578. General scope of equity jurisdiction 355 579. Administering full relief 356 580. Suits in equity— Pleadings 357 581. Evidence on hearing 358 CHAPTER XLIII. ADMIRALTY law and procedure. 582. Origin and history 359 583. Admiralty jurisdiction 360 584. Admiralty procedure 361 CHAPTER XLIV. extraordinary remedies and special proceedings. 585. Mandamus 363 586. Nature of the action 363 587. Quo warranto 364 588. How obtained 365 589. Prohibition 365. 590. Habeas corpus 365 591. What application must show — Return 366 592. When legality of restraint will not be inquired into 366 593. Contempt 367 594. Direct or constructive contempt 368 595. Attachment 368 596. How writ served 369 597. Garnishment 369 598. Capias 370 599. Arbitration 370 600. Accord and satisfaction 371 601. Partition 371 602. Certiorari 373 TABLE OF CONTENTS. xxv CHAPTER XLV. criminal law. Section. Pace. 603. Crimes in the United States 374 004. Capacity to commit crime 374 605. Criminal statutes— How construed 375 606. Infamous crimes 375 607. Crimes classified 375 608. Compounding 375 609. Attempts 375 610. Aiding, counseling, etc 376 611. Unlawful intent and overt act 376 612. Criminal carelessness 376 613. Ignorance or mistake of fact 377 614. Ignorance of law 377 615. Self-defense 377 616. Offenses committed by wife 377 617. Principal's liability for offense of agent 378 618. Principal and accessory 378 619. Drunkenness 378 620. Insanity 379 621. Punishment 379 622. Jurisdiction of crimes 380 623. Territorial jurisdiction 380 624. Jurisdiction over sovereigns, ambassadors, etc 381 CHAPTER XLVI. CRIMINAL OFFENSES. 625. Abortion 383 626. Adultery 383 627. Abduction and kidnaping 384 628. Affray 384 629. Arson 384 630. Assault :;s: > 631. Assault and battery 385 632. Assault with intent 386 633. Justification for assault 386 634. Barratry 387 635. Sodomy 387 636. Bigamy or polygamy ;vs 637. Briberv 388 X xvi TABLE OF CONTENTS. Section. Page. 638. Burglary 389 639. Cheating 390 640. Conspiracy 390 641. The agreement 391 642. Dueling 391 643. Embezzlement 391 644. Extortion 392 645. False imprisonment 392 646. Forgery 393 647. Fornication 393 648. Homicide 393 649. Voluntary manslaughter 394 650. Involuntary manslaughter 394 651. Justifiable homicide 395 652. Malice 396 653. Incest 396 654-656. Larceny 397 657. Libel 397 658. Malicious trespass or mischief 398 659. Mayhem 398 660. Nuisance 398 661. Perjury 399 662. Piracy 400 663. Rape 400 664. Riot 400 665. Robbery 401 666. Seduction 402 667. Treason and misprision of treason 402 CHAPTER XLVII. CRIMINAL PROCEDURE. 668. Arrest : 404 669. Warrant for arrest 404 670. Validity of warrant 405 671. Arrest by officer without warrant 405 672. Arrest by private person 406 673. Arrest upon hue and cry 406 674. Service of warrant 406 675. Extradition 407 676. Examination, bail, etc 408 677. Right to speedy trial 409 TABLE OF CONTENTS. xxvii Section. Pace. 678. Right to have counsel 409 679. Change of venue 410 680. Continuance 410 681. Indictment— Information 411 682. Pleas to indictment 412 683. Arraignment 412 684. Jury impaneling 413 685. Opening statements of counsel 413 686. Examination of witnesses 414 687. Rules of evidence 414 688. Special rules in criminal cases 415 689. Arguments of counsel 416 690. Conduct of jury— Verdict 417 691. Motion for new trial — Arrest of judgment — Execu- tion 417 ELEMENTARY LAW. CHAPTER I. LAWS IN GENERAL. § 1. Necessity for law. — Laws, in their most gen- eral signification, are the necessary relations of things. In this sense all beings have their laws, the Deity has his laws, the material world has its laws, the beasts have their laws, man has his laws. Or as Plutarch expresses it, law is queen of gods and men. Human laws are the conditions under which men, naturally independent, unite themselves in society. The suspension of law in the material universe would result inchaos; to suspend the operations of law in society would result in anarchy. The ancient Persians, to impress upon the people the necessity for laws, suspended all laws for a period of five days after the death of a sovereign. Of all men the law- yer should be foremost in maintaining respect for existing laws. § 2. Human laws. — We have to deal here alone with the laws which men impose upon themselves. Discarding old theories, such as the divine right of kings, civilized peoples recognize the fact that sover- eignty, ultimately and of right, rests in the governed. Each individual in society sacrifices part of his lib- (1) 2 ELEMENTARY LAW. § 3 erty to save the rest, and the sum of these sacrifices constitutes the sovereignty of the nation, whether the depository be king or representative. § 3. Laws in the United States. — In the United States the sovereignty is lodged in different deposito- ries, and the limit to the powers of each is to be determined by reference to the constitutions of the nation and the states. By these instruments the sov- ereign people have delegated certain portions of the sovereignty to their agents, the legislature, the judi- ciary and the executive. Within the limits prescribed by these constitutions, the agents of the people exer- cise their functions; beyond those limits they have no power. In England the sovereignty of the people is lodged in fact in Parliament, which is said to be, in the matter of making and executing laws, omnipo- tent. The English courts have a duty to perform in interpreting statutes, but they have no power, as the courts of the United States have, to declare an act of the legislature inoperative and void because it in- fracts some clause of the constitution. This power of our courts startles some foreign jurists, who regard it as a dangerous anomaly in government. Experience has taught us that the security of person and prop- erty, and the permanence of our institutions, rest largely on this power. § 4. Laws and morals. — We have been speaking of what is termed municipal law, which Blackstone has defined to be a rule of civil conduct prescribed by the supreme power of the state, command- ing what is right and prohibiting what is wrong. Those things which we possess and enjoy under the protection of the law are our rights. Wrongs are those § 5 LAWS IN GENERAL. 3 things which are done in violation of the rules of civil conduct prescribed by the supreme power of the state. Of moral right and obligation, of moral duty and moral wrong, this is not the place to speak. Munic- ipal law deals with acts, morality deals with motive-. Courts of law are not always courts of conscience. As Professor Amos says: "A man may be a bad hus- band, a bad father, a bad guardian, without violating a law. He may bean extortionate landlord, a waste- ful tenant, a hard dealer, an unreliable tradesman, and law can not touch him. lie may be a rascally politician, a demagogue and indolent aristocrat, and yet satisfy to the utmost the claims of the law." So law, as we use the term in this treatise, is "a body of commands addressed to individual members of the human race forming the component elements of a state." § 5. A right resting upon municipal or civil law can be enforced or vindicated by a court, and such a right implies a perfect obligation to do or forbear. A right resting upon moral or social laws may be valu- able and its transgression may cause pain , suffering and discomfort, but it can not be enforced or vindicated by a court or by any positive sanction. It is the province of courts and lawyers to deal with rights of perfect obligation alone. § 6. Municipal Law. — The law, and herein we speak only of municipal law, prescribes certain rules of civil conduct. These rules are (1) for the pro- tection of our persons, (2) for the protection of oui property, (3) for the protection of our reputation. The value of these rules consists in the fact that they emanate from and are enforced by the whole people, ELEMENTARY LAW. §7 acting through their legislatures, their courts and their executive officers. The entire physical power of a nation is pledged to their enforcement. § 7. The Law-making Power. — These rules of civil conduct are prescribed by the supreme power of the state. This supreme power is exercised in a despotism by a single ruler, such as the Czar. In a constitutional monarchy such as England, Germany and Italy, tins power is lodged in the ruling sover- eign and the legislature. In a republic, such as the United States, this power is subdivided. The supreme power of legislation is lodged in the legis- lative body and the executive, who may approve or veto a bill passed by the legislature. The supreme power of declaring what a legislative enactment means, in other words the power of interpretation, is lodged in the supreme court. The supreme power of enforcing the law rests with the executive. The value and permanence of our institutions depend upon the preservation to each of the departments — the legislative, the executive and the judiciary — its separate and appropriate functions. § 8. Good citizenship requires implicit obedience to the laws enacted by the legislature within the scope of its constitutional power, to the orders and decrees of the judiciary in all matters of which they have jurisdiction, to the commands of the executive in preserving the peace and enforcing the laws. §9. The Supreme Court of the United States.— Professor Maine says the Supreme Court of the United States is the unique and important contribution of America to the science of government. He speaks, of course, of its transcendent power to annul an act § (j LAWS IN GENERAL. of the legislature approved by the executive, when, in the opinion of the court, the act in question is contrary to the provisions of the constitution. This power was disputed soon after the adoption of the constitution. It has never been denied since Chief Justice Marshall uttered those memorable words in his opinion in the case of Marbury v. Madison, lCranch 177. lie says: "It is emphatically the province and duty of the judicial department to say what the law- is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other the court must decide on the operation of each. So, if a law be in opposition to the constitution, if both the law and the constitu- tion apply to a particular case, so that the court must either decide that case conformably to the law, disre- garding the constitution, or conformably to the con- stitution, disregarding the law, the court must de- termine which of these conflicting rules governs the case. This is the very essence of judicial duty. If then the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the consitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be considered in court as a para- mount law are reduced to the necessity of maintain- ing that courts must close their eyes to the constitu- tion and see only the law. This doctrine would sub- vert the very foundation of all written constitutions. It would declare that an act which, according to the theory of our government, is entirely void is yet, in practice, completely obligatory. It would declare 6 ELEMENTARY LAW. § 10 that if the legislature shall do what is expressly for- bidden, such act, notwithstanding the express prohi- bition, is, in reality, effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their pow- ers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleas- ure." § 10. Kinds of laws in the United States. — As in Rome, as in England, and the United States, law is divided into written and unwritten. Justinian, speaking of Roman law, says: "Our law is writ- ten and unwritten, just as among the Greeks some of their laws were written and others not written. The written part consists of laws plebiscita, sena- tus-consulta, enactments of emperors, edicts of mag- istrates, and answers of jurisprudents." Black- stone says: "The municipal law of England or the rule of civil conduct prescribed to the inhabitants of this kingdom may with sufficient propriety be di- vided into two kinds : The lex non scripta, the un- written or common law, and the lex scripta, the writ- ten or statute law." § 11. Owing to the peculiar form of our govern- ment, our written laws are of different dignity and authority. Our national constitution declares that "the constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary §12 LAWS IN GENERAL. notwithstanding." Next in dignity and authority are the written constitutions of the several states and the acts of the legislatures of the states respect- ively; to these may be added the ordinances of cities and towns. These constitutions, treaties, act- of congress and acts of the legislature, and ordinances, constitute the written laws which govern the people of the United States. These written laws emanate from the sovereign will of the people and are self-imposi 1. § 12. The unwritten law in the United States may be defined in the words of Justinian as being "that which usage has established ; for ancient customs, being sanctioned by those who adopt them, are like laws." It is customary law, and is as obligatory as any other law. In a pending controversy the courts announce the rule of civil conduct, i. e., the law which fixes the rights and liabilities of the parties before it, whether that rule is found in the written or the unwritten law. This unwritten or common law is different in different states. The United States as a nation has no common or unwritten law. The national or federal courts administer the common law as they find it to exist in the states respectively. The common law of Louisiana, for instance, is based upon the principles of the civil law which came to Louisiana from France. The common law of most of the other states finds its source in the common law as it was established and administered in Eng- land and her colonies at the time of the separation. CHAPTER II. INTERNATIONAL LAW AND CITIZENSHIP. § 13. International law. — This is composed of the rules which fix the rights and duties of civilized na- tions in their intercourse with one another. Pro- fessor Maine defines it as the law of negotiation and diplomacy . The horrors of war on land and sea made international law a necessity. There are, however, no fixed sanctions or penalties to punish violations or to enforce obedience to this law; there is no tribunal to hear and determine questions touching breaches of the law. If two nations have a controversy, it can be settled in one of three ways. First, by negotiation between the parties concerned. Second, by arbitra- tion agreed upon by the parties. Third, by war. The Amphyctionic Council was established for a law of nations for the Greek states, but it failed. Aris- totle pleaded for the humane treatment of prisoners of war. As late as the Middle Ages the usages of war were barbarous. The church exercised her in- fluence to soften its rigors. Her efforts were supple- mented by the laws of chivalry, and Inter, nations by treaties bound themselves to certain rules for the conduct of war, and these rules by constant usage have come to be settled law among all civilized peo- ples. The scope of international law includes also the customs and usages which fix the rights of neu- (3) §14 INTERNATIONAL LAW AND CITIZENSHIP. trals, the navigation of the high seas, the extent of the jurisdiction of nations over the seas at their coast lines, the punishment of piracy, treatment of am- bassadors and consuls, passports, in fact of all mat- ters growing out of and related to the intercourse of the subjects of nations with each other. § 14. What is called the conventional law of na- tions is composed of those stipulations and rules which have been incorporated in treaties, a law which is only binding upon the parties to the treaty. To promote harmony and to facilitate the settlement of controversies between nations, and the subjects of dif- ferent nations, it is customary for nations to have ac- credited representatives at the seat of government of other nations. These representatives, whether called ministers or ambassadors, are not subject to the jurisdiction of the courts of the country to which they are sent, and the same rule extends to the members of their families and households. § 15. Neutrality. — When two nations are at war, other nations should observe the duties of neutrality towards the belligerents. To enforce these duties most nations enact neutrality laws for the purpose of punishing such of their subjects as violate their duties. A neutral must abstain from giving aid to the belligerents. § 10. When war exists. — Each belligerent has the right to seize and possess itself of all property with- in its borders belonging to the enemy or the enemy's subjects. Exceptions are made in favor of debts owing to foreign creditors and to ships in porl which have not had sufficient time to leave alter hostilities began. Where and to what extent the- IQ ELEMENTARY LAW. § 17 property of an enemy may be seized and confiscated is in this country a political question which must be determined by congress. §17. Interstate law. — Akin to international law is what may be called interstate law in this country. In a large measure the rights of citizens of one state to travel in, to carry on business, to make contracts, and to acquire and enjoy property in the other states are secured by the constitution of the United States ; but in many things their rights are restricted by state laws. Corporations organized under the laws of one state doing business in another, must submit to and perform such conditions as may be imposed upon them by the latter state. So, con- tracts made in one state will be enforced in another state only according to the methods of procedure of the latter state. As when the laws of the state in which a suit is brought to collect a debt contracted in another has a statute of limitations which bars a recovery sooner than it would be barred in the state where the contract was made, the shorter limit will be applied. § 18. While the federal courts take judicial notice of the laws of the United States, and of all the laws of all the states, the state courts only take judicial notice of the laws of the United States and of their own states. Ordinarily, the laws of one state are limited in their operations to the geographical boundaries of the state. When, however, a contract is made in one state, the law of that state must be resorted to in measuring the rights of the parties to it. The law of the place where the contract is made determines their rights, and the law of the place § 19 INTERNATIONAL LAW AND CITIZENSHIP. H where redress is sought in the courts determines the manner of the remedy. § 19. Where a man having a domicil in one state dies intestate, leaving property in two or moresti it is a rule of law that the personal property shall be distributed amongst his heirs according to the law of the place of his domicil, and that the real estate shall descend to his heirs according to the laws of the place where it lies. § 20. Citizenship. — Citizenship is the state of be- ing vested with the rights and privileges of a citizen. In this country there are two kinds of citizenship and allegiance — one national and the other state. It is for congress to determine who shall enjoy the privi- leges of national citizenship within the limits pre- scribed by the constitution, and the laws of the several states fix the conditions under which state citizenship is acquired. No state can make or enforce a law which shall abridge the privileges and immunities of citizens of the United States; nor can any state de- prive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws. This is a provision of the constitution of the United States — and any state law to the contrary is void. It is further provided in the constitution that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. The right of a citizen to expatriate himself and become a subject of another nation was questioned in this country until congress passed a law recognizing such right. § 21. Citizenship is acquired by birth or by natural- 12 ELEMENTARY LAW. § 21 ization. Congress has sole power to establish uniform rules of naturalization. It is in the power of the states to adopt citizens on easier terms than the laws of congress may impose, but they have no power to exclude from citizenship those who have been natural- ized according to the laws of congress. By these laws the applicant must make oath before the proper officer, at least two years before his admission, that it is his intention to become a citizen, and renounce his allegiance to his own sovereign. At his final ad- mission to citizenship he shall make oath that he will support the constitution of the United States and renounce all allegiance to any foreign power, especially his own sovereign. He must prove by at least two citizens that he has resided in the United States five years and within the state or territory where he is located, one year; that he has been a moral person and is attached to and well disposed toward the principles of this government. He must also renounce all titles to nobility, if he have any. A minor alien (not a Chinese), who shall have resided within the United States three years next preceding his majority, and so resides at the time of making his application, may, after reaching his majority, and having resided in the United States five years, including the three years during his minority, be given citizenship without a preliminary declaration. An alien who is over twenty-one years of age, who has enlisted and served in the armies of the United States as a regular or volunteer, and has been honor- ably discharged, can, if he has resided in the United States one year, be admitted to citizenship without a preliminary declaration. Children of naturalized § 22 INTERNATIONAL LAW AND CITIZENSHIP. 13 parents, who were under age when the parents were naturalized, shall, if residing in the United States, be considered citizens. By the laws of some states aliens who have declared their intention to become citizens of the United States and have resided in the United States one year are allowed to vote in the state where they reside. § 22. Aliens. — The rights of aliens to acquire and hold property by purchase or descent are fixed and regulated by the laws of the several states, and in most, if not all of them, aliens may take and hold property by devise, deseent, or purchase in the same manner as citizens. In some states this right is limited to such right as citizens of the United States may have to take and hold property within the country of such aliens. CHAPTER III. WRITTEN LAWS. § 23. Constitutions. — We come now to inquire as to the manner in which the supreme power of the state prescribes the rules of civil conduct, as they are embodied in the written law. The constitution of the nation, or of the state, is the direct and im- perative expression of the will of the people. Legis- latures and courts are under the constitution, and are created by it or by its authority. This para- mount written law, the constitution of the United States, can only be amended by a vote of three- fourths of all the states of the Union. The consti- tutions of the several states may be amended in such manner as is provided in the constitutions them- selves. § 24. Statutes. — The powers of congress are fixed by the constitution, as it is interpreted by the supreme court. If the power to legislate on a sub- ject is conceded to congress, the supreme court will not inquire into the policy of a law, or the motives, which led to its enactment, or the manner in which it was enacted. It is only when the law violates a provision of the constitution that the court by its judgment pronounces it null and void. Courts of justice should bring every law to the test of the con- (14) § 25 WRITTEN LAWS. 15 stitution, first of the United States and then of their own state, as the paramount and supreme law, to which every inferior power must conform. As the laws enacted by congress and by the state legislature \ must be brought to the test of the constitution, so t the ordinances of towns and cities, which arc the creatures of legislative power, must be brought to the test of the laws or charters by virtue of which • they exist. Laws enacted by congress are in fore from and after their passage, unless the time of the taking effect of the law is postponed to a later date by the law itself. It would be manifestly unjust to enact laws without providing some means of publish- ing them, so in civilized nations legislative enact- ments which have the force of laws are published by authority. In some states of the Union, general laws are not in force until they are printed and dis- tributed to every county in the state. In Indiana > if in the body of the act it is declared that an emer- gency exists for the immediate taking effect of a law, it is in force from and after its passage. § 25. Validity of statutes— it is a rule of decision which the courts recognize, that whenever the con- stitutionality of a statute is doubtful, it will be sus- 3 tained. No statute by any fiction or relation shall have any effect before it be actually passed. And a statute is not passed so as to have effect until the legislature has given the required number of votes in its favor. When the fact of its receiving this many votes is certified to the governor or president, by the presiding officers of the two houses, and the executive signature and approval are affixed thereto, it is a law and not before, unless in exceptional cas 16 ELEMENTARY LAW. § 26 where the legislature may re-enact a law by passing it over the veto of the governor or president, as provided in the constitution. § 26. Retroactive statutes. — It is a maxim that a legislative enactment ought to be prospective and not retroactive. A retroactive statute would partake in its character of the mischief of an ex post facto law, as to all cases of crimes and penalties; and in cases relating to contracts or property it would mili- tate against every sound principle. A retrospective statute affecting and changing vested rights is gen- erally considered as grounded on unconstitutional principles, and consequently is void. Bat this doc- trine does not apply to remedial statutes, which may be of a retrospective nature, provided they do not impair contracts or disturb vested rights, and only tend to confirm rights already existing, by curing defects and aiding in enforcing existing obligations. Such statutes are held valid when clearly just and reasonable, and conducive to the general welfare, even though operating in a degree upon existing rights; as a statute to confirm marriages defectively celebrated or a sale of lands defectively made or ac- knowledged. § 27. Public and private statutes. — Statutes may be public or private. Public statutes relate to the country or state at large and private statutes con- cern the particular interests of certain individuals. Public statutes bind everybody, private statutes do | not bind strangers in interest by their provisions. Courts take judicial notice of public statutes, but not of private statutes . A party to a suit basing a claim upon a private statute must plead it specially, but one who W § 28 WRITTEN LAWS. 17 bases his claim upon a public statute need not plead it at all. § 28. Interpretation of statutes. — After a law is enacted in due form and its constitutionality is es- tablished or conceded, questions may arise as to the meaning of the law. Here the duty of interpreting , ^^ the law is devolved upon the courts, whenever in an action before them the parties to the action insist upon different interpretations. Interpretation is the art of finding out the true sense of any form of words, that is, the sense which their author intend- ed. And here let us note some of the rules of inter- pretation, /it is not permitted to interpret what needs ^ no interpretation. ;AV here the intention of the law-mak- ing power is plainly manifest from a reading of the statute, that intention must prevail over the literal sense of the terms used. TThe intention of the lawgiver is to be deduced from a view of the whole and of every part of a statute compared together, just as a contract or a will is interpreted and the meaning of the parties ascertained by considering every part of the instrument under consideration. i^Vhere the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the object and remedy in view; and the intention is to be taken ac- cording to what is consonant to reason. i-The words of a statute, if of common use, are to be taken in their plain, obvious and ordinary sense. ^If techni- cal words are used they are to be taken in a technical sense, unless it clearly appears from the context or other parts of the law that the words were intended 2 13 ELEMENTARY LAW. § 29 to be applied in a different sense. If the tech- nical meaning of terms is in doubt or disputed, the court may call to its aid those whose calling has made them acquainted or familiar with the meaning of such words. *7 Statutes should be inter- preted according to the natural and obvious import of the language without resorting to subtle or forced constructions. tfAll the statutes of the same legisla- ture relating to the same subject are to be taken to- gether, for they are considered as having one object in view, and as acting on one system. •■<. So, whenever it is clear that a power is given by the statute, the court will construe it as implying the right to make it effective. It is a rule in some, but not all of the states, that statutes enacted in derogati on of the c om- mon law are to be strictly construed. Reme dial statutes are to be liberally construed; while penal statutes are to be strictly construed. Beccaria says: "Penal laws should be so plain that no judge should be tempted to interpret them. There is nothing more dangerous than the axiom, the spirit of the law is to be considered." If the sovereignty, the legisla- tive power has not spoken plainly, there is no law. § 29. It is better thus than to allow judicial legis- lation concerning the lives and liberties of the subject. The disorders that may arise from a rigorous observ- ance of the letter of the penal laws are not to be compared with those produced by the interpretation of them. Statutes against frauds are liberally con- strued, and the reason is that they deprive no man of his right. They inflict no punishment, they simply prevent a wrong-doer from taking or keeping what he seeks or holds by fraud. The common law gives § 30 WRITTEN LAWS. 19 place to a statute, and an old statute gives place to a new one. §30. Where the provisions of a now statute are repugnant to the provisions of an earlier statute, the earlier is said to be repealed by implication, the later statute being the more recent expression of legisla- tive intention. Repeals by implication are not fa- vored. Statutes limiting the powers of future legis- latures are void. A legislature can not enact an irrep ealable statute unless it is in the form of a contract — such as a charter, under which rights £y have become vested. Ordinarily the repeal of a re- pealing statute revives the statute which had been repealed. Some states have by law abolished this rule. § 31. Where a literal construction would violate {lie legislative intention, it will not be adhered to. A saving clause or pi-oviso repugnant to the body of he statute is void. Where a statute contains a word whose meaning is known to the common law, that meaning will be adopted. In construing a doubt- ful statute, the preamble and title may be consulted. Long-continued practice may affect the construction of a statute, and the contemporaneous construction of a statute is of high authority. CHAPTER IV. UNWRITTEN LAWS. § 32. Common law. — We have now to speak of the unwritten or common law. The phrase comm on law is here used in contradistinction to statute law and law as contained in written constitutions, al- though it may also be appropriately used in contra- distinction to the civil or canon law, admiralty and maritime jurisprudence, and very often to equity. In the sense here used it is an unwritten law, which receives its binding force from immemorial usage and universal reception in distinction from written or statute law. Its rules or principles are to be found in the text-books written by men learned in the law, in the records of the courts and in the reports of judicial decisions. As a rule of civil conduct it is of binding obligation upon all until it is modi- fied or overruled by statute law. § 33. Sources of the common Law. — The origin or source of the common law has been said to be un- discoverable. It is the sum of innumerable accre- tions from ancient customs and usages which began among the people of England, which customs are sometimes designated as the "ancient Saxon privi- leges," or the body of laws framed by Alfred the Great and re-affirmed by Edward the Confessor. In (20) § 34 UNWRITTEN LAWS. 21 making this compilation, Allied drew upon the Mercian laws existing in the counties bordering on Wales and retaining old British customs; upon the West Saxon of southern and southwestern counties of England ; and upon the Danish of the western coast, where a Danish settlement had been effected. Some affirm, with apparent good reason, that it was framed in part from the Old Testament; portions of it were undoubtedly taken from the principles of the Roman Pandects. These were compiled by Roman lawyers by command of Justinian from the writings and opin- ions of the old Roman jurists and formed a part of the body of the civil law of Rome, which has been ac- cepted as the basis of mediajval legislation and of nearly all European law. The spirit of these laws found its way into England through the clergy, who were the only learned class of that period. Some cen- turies later the laws themselves became embodied in the common law of England in a more positive and extensive form. § 34. Growth of the common law. — At the time of the Norman conquest the invaders found the English people living under a code of laws which was compiled by Edward the Confessor, upon the basis of the code of Alfred, which has already been mentioned. The renewal by Magna Charta of the "ancient Saxon privileges" was the re-enactment of a part of the code of Edward. Although the com- mon law is an unwritten law, its rules and principles have been handed down from generation to genera- tion, and sometimes have almost approached in ex- actitude the complete and precise form of statute law. An illustration of the adaptability of the com- 22 ELEMENTARY LAWS. § 35 mon law to the wants of society is found in the man- ner in which the rules of the law merchant were in- corporated into or were assimilated by the common law. During the operation of the feudal system the rules of the common law were inadequate to the needs of the mercantile classes. As controversies came before the courts, they were in the habit of ap- plying to commercial contracts the rules which had been adopted among merchants in their business dealings, just as courts now interpret and enforce the contracts of men engaged in the various callings of life, according to the customs and usages prevail- ing in such callings. So numerous w 7 ere the rules of the law merchant, and so important had the mercan- tile classes become, that by a statute enacted during the reign of James I these rules were declared to be a part of the common law. And substantially as they were when this statute was enacted, they have come to be a part of the common law of the United States. § 35. Functions of the courts. — The unwritten or common law constitutes the great bulk of the Eng- lish and American system of law. Of this system the lawyers and judges are the visible artificers. "The state has," as Prof. Holland says, " in gen- eral two and only two articulate organs for law-mak- ing purposes — the legislature and the. tribunals. The first organ makes new law ; the second attests and confirms old law, though under cover of doing so it introduces many new principles." It is the function of the legislature to innovate, for it is the desire or object of the legislator to do away with something old or establish what is new. On the § 36 UNWRITTEN LAWS. 23 other hand it is the province of the tribunal not to innovate, but to declare and confirm what already is assumed to exist. And while courts may and many courts do seek to make new rules, in so doing they enter upon the dangerous ground of judicial legisla- tion. Judge-made law, or law made by one man. is, in this country at least, an abomination. It is a usurpation by one branch of the government upon the powers of another. It is the foulest injustice to remove landmarks, and to corrupt the law is to poison the very fountains of justice. Judicial laws are always retrospective and are worse than retro- spective statutes. xVgainst retrospective statutes there is the bar of constitutional provisions. There is no such bar against the capricious legislation of a judge. A judicial superseding of legislative intent is an act of mere executive insubordination. It is dangerous and may easily become the source of the gravest abuse. § 30. Common law in the United States. — The common law of the states comprising the United States consists of the common law of England as modified by English statutes previous to the colonization of America, so far as it was adapted to the altered conditions and circumstances of the colonies, and those English statutes passed afterwards prior to the American Revolution, which were prac- tically accepted and adopted in America and became a part of the common law. The common law is presumed to exist in the colonial states and in states of which the population was made up from those states, in fact all the states except Louisiana have in one form or another adopted the common law. The 24 ELEMENTARY LAW. § 37 United States as a nation has no law that is not em- bodied in the constitution, treaties or laws enacted by congress, and the common law could be made a part of our federal system only by legislative adoption. § 37. Precedents, importance of. — What is com- mon law is declared by the courts, and what the courts have declared to be the law is found in their records and published decisions. When a rule of law has once been declared it ought not to be disturbed un- less by a court of appeal or review, and never by the same court, unless upon very urgent reasons and upon a clear manifestation of error; any other prac- tice leaves the citizen in a perplexing uncertainty as to the law. A precedent, even where it appears to be flatly unreasonable and unjust, may and should be followed if it has been acquiesced in for a long period, or if it has become a rule of property, so that titles have been acquired in reliance upon it, and vested rights will be disturbed by overruling it. In such a case the better course is to leave the correction of the error with the legislature which can so shape its action as to make it prospective only, and thus pre- vent the injurious consequences that must follow from judicially declaring the previous decision unfounded. § 38. Customs. — Customs form a large part of the common law, and these customs are general or par- ticular. It is a matter of historical observation that long before any supreme political authority has come into being a series of practical rules determine the main relations of family life, the conditions of ownership, the punishment of the more violent forms § 38 UNWRITTEN LAWS. 25 of moral wrong-doing, and the adjustment of con- tracts. The mode in which such rules are formulated seems to be the following : A spontaneous practice is first followed, and if good and useful, is generally copied over and over again, the more so as habit and association always render the imitation of an old and familiar practice easier than inventing a new and untried one. It is the peculiarity of the clasa of customs which are the true germs of future law that they are being constantly brought to mind and tested by application to actions. Customs pre- scribing the formalities and conditions of marriage are brought into distinct consciousness on the forma- tion of every fresh family. The incessantly active vicissitudes of birth and death in every community call for an unintermittent series of decisions upon the competing claims of survivors in matters of ownership, and upon the responsibilities of those who may already be called "personal represent- atives" in matters of contract. The main ma- chinery for the conversion of desultory and un- certain customs into fixed rules are the decisions which are constantly demanded for the purpose of ascertaining the nature and extent of an alleged cus- tom. These decisions may be made by a casually se- lected arbitrator, a village council, or any man or body of men agreed upon, or who may have authority to hear the matter. The grounds of decision may be the personal mercy of the judge, or expediency, or analogy. Such decisions become precedents and by them the uncertain custom becomes fixed and solidi- fied as a rule of civil conduct, or law. 26 ELEMENTARY LAW. § 39 § 39. A custom is defined as being such a usage as by common consent and uniform practice has become the law of the place, or of the subject-matter to which it relates. A particular custom is distinguished from a rule of the common law in this, that the latter is uni- versal, while the former is particular to this or that place. It is distinguished from usage in this, that custom is the rule of which usage is the legal evi- dence. The difference between prescription and cus- tom is that while prescription is the making of aright, custom is the making of a law. General customs are such as constitute a part of the common law, of the country, and extend to the whole country; par- ticular customs are those which are confined to a particular district; or to the members of a particular class; the existence of the former is to be determined by the court, of the latter by the jury. Customs are said to be good in law : (a) where they have existed time out of mind; (b) have been uninterrupted; (c) have been peaceably enjoyed or acquiesced in; (d) are reasonable; (e) are certain; (f) are compul- sory; (g) are consistent with one another. Local usages or customs, applying to particular callings, will be enforced between parties who have dealt with reference to them. Usages, which are plainly repug- nant to well known rules of law, are not recognized and can not be proven. Customs of trade are proven to show the intention of parties in mak- ing contracts. But customs of trade can not be enforced against a stranger who is ignorant of them. For instance, a merchant can not charge a customer interest on a running account because it is his custom, unless the customer knows it. Nor will r 39 UNWRITTEN LAWS. 27 a custom be allowed to control the interpretation of a written instrument in opposition to its express terms, and courts are always averse to holding cus- toms good where they vary the common law obliga- tions of the parties. CHAPTER V. RIGHTS. § 40. Legal rights. — The object of law is to pro- tect us in the enjoyment of our rights and to punish invasions of these rights. Aright in one person implies a duty in all other persons to respect that right. Absolute rights belong to individuals in a single, unconnected state. Relative rights are those which arise from the civil and domestic relations. We speak also of natural rights, by which we mean (a) right to life; (b) right to liberty; (c) right to form the family relation; (d) right to ac- quire property ; (e) right to make contracts. Moral claims, often called rights, can not be enforced by law: as obedience to parents, politeness to equals and inferiors, the duty of charity, and the like. These can only be enforced by public opinion and the individual conscience. A disregard of them is pun- ished by the opprobrium which public opinion casts upon the offender. We have here to do with legal rights, or those to which the state has given its sanction; they are such rights as can be enforced by legal means against the persons or the community whose duty it is to respect them. These rights may be enforced in actions at law or equity by the courts, or by the public prosecution of offenders against them, (28) § 41 BIGHTS. 29 in which the sanction may he penal or compensa- tory, or hoth. §41. Meaning of natural rights. — Blackstone says the absolute rights of man may be summed up in one general appellation and denominated the natural liberty of mankind, whereupon Judge Cooley remarks that there is no such thing as natur- al liberty. He says: "Every man enters into society by being born into it, and he gives up no natural liberty but acquires liberty by becoming a member of the civil state. This liberty is civil liberty and it constitutes the sum of a man's civil rights as they are declared and protected by law." So that man's liberty and rights are deter- mined by the law, written and unwritten, of the society or state of which he is a member. The rights thus given by law are enforced in suits in the courts, brought by or in behalf of individuals whose rights are invaded. As to the forms of procedure in en- forcing these rights more will be said hereafter. § 42. The right of personal security. — The right of personal security is the most important of all rights and it consists in a person's legal and uninterrupted enjoyment, (a) of the right to life, (b) of the right to limbs, body, etc., including the right to use them in lawful labor, (c) right to the preservation of health, (d) the right to one's reputation, (e) the right of free speech and locomotion. These rights are only determined by death. § 43." The right to life.— The right to life begins with the first pulsations in the unborn child. It is everywhere a moral wrong, and inmost civilized coun- tries it is a crime to destroy human life, even in its 30 ELEMENTARY LAW. § 44 first manifestations. The right to life implies the right to preserve it, and from this springs the right of self-defense, a right which is not given by law but is recognized by it. It is a right which exists in the jungle when one is set upon by a wild beast, and it is the same right when asserted in the most civilized society where life is threatened by an assassin. Be- sides the right of the individual to repel a deadly as- sault by taking the life of his assailant, society has the right to punish with death any one who unlaw- fully takes the life of another. Blackstone and the earlier writers base the right of capital punishment upon the Mosaic law, but the better view now is that it rests upon grounds of public polic} T and can only be justified when and because it is necessary for the preservation and security of society. § 44. The right of personal liberty. — The right of personal liberty is secured by that provision of the constitution which declares that "No person * * shall be deprived of life, liberty or property without due process of law." "The meaning of this is," as Webster said in his speech in the Dartmouth Col- lege case, "that every citizen shall hold his life, lib- erty, property and immunities under the protection of general rules which govern society." This term liberty is, as has been said, a negative term de- noting the absence of restraint. But it is more — it implies the right to think, to speak, to act individu- ally or with others, to labor for one's support without molestation from others ; it means the right to the full exercise of one's faculties in lawful ways. Civil liberty, which is here meant, is liberty restrained so far as is necessary for the common good. §45 RIGHTS. 31 § 45. Habeas corpus. — To prevent unlawful inva- sions of this right to liberty the habeas corpus act of the year 1679 has been re-enacted generally in the American states. And to further secure itthe constitution of the United States declares that ''The privilege of the writ of habeas corpus shall not be sua* pended, unless where, in case of rebellion orinvasion, the public safety may require it." The law also gives one who is unlawfully restrained of his liberty a civil action against the wrong-doer. § 46. Right to health. — The right to the preservation and enjoyment of health is protected and enforced by suitable laws. No one has the right to do anything which will impair the health of another. To create or maintain a nuisance by carrying on a noisome trade in a thickly populated neighborhood, to the discomfort of, or to the injury of the health of, the citizens, would, where the wrong was sufficient to amount to a public nuisance, be punished by the criminal law, and if the injury is confined to one or only a few of the citizens, they have a right of action in which damages for the injury may be re- covered from one who creates or maintains the nuisance, and in a proper case the courts will inter- fere by injunction and prohibit its continuance. § 47. Right to reputation. — The right to one's rep- utation is protected and enforced by the laws on the subject of libel and slander and malicious prosecu- tion. To write and publish anything of another which is false, and which either charges a crime or holds one up to public scorn or ridicule, is libelous, and subjects the author to an action for damages, and in many states to a criminal prosecution also. To 32 ELEMENTARY LAW. § 48 falsely say of a man that he has been guilty of a crime which would subject him to infamous punishment, or to say falsely of a woman that she is unchaste, is slander and the injured part}*" may recover damages of the offender in a civil action. To charge a man falsely before a magistrate with the commission of a crime with malice and without probable cause, is malicious prosecution for which in a proper case damages will be awarded to the injured party. § 48. Right to property.: — The right of property is secured by the fifth amendment to the constitution of the United States which provides that: "No per- son shall be deprived of life , liberty or 'property without due process of law," and by the fourteenth amendment, which provides that : " No state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." § 49. The right of property is the right of dominion, ownership, possession. Law writers have different the- ories of the origin of this right. Blackstone says, "The earth and all things therein were the general property of mankind from the immediate gift of the Creator. * By the law of nature and reason, he who first began to use it (property) acquired therein a kind of transient property that lasted as long as he was using it and no longer ; or to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. Thus the ground was in common and no part was the perma- § 49 RIGHTS. 33 nent property of any man in particular; yet who- ever was in the occupation of any determined spot of it for rest, or shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust and contrary to the law of nature to have driven him by force, but the instant that he quitted the use ,or occupancy of it, another might seize it without injustice.". CHAPTER VI. PROPERTY IN GENERAL. §50. Basis of ownership. — In speaking of the Roman laws the German jurist Savigny says that "all property is founded on adverse possession ripened by prescription. " Sir Henry Maine gives it as his opinion that the "true basis of the right of prop- erty is not an instinctive bias towards the institution of property, but a presumption arising out of the long continuance of that institution that everything ought to have an owner. Where possession is taken of an object which is not or has never been reduced to dominion, the possessor is permitted to become proprietor from a feeling that all valuable things are naturally the subjects of exclusive enjoyment, and that in the given case there is no one to invest with the right of property except the occupant. The occupant, in short, becomes the owner, because all things are presumed to be somebody's property and because no one can be pointed out as having a bet- ter right than he to the proprietorship of this par- ticular thing." The individual right of property, as appears from a closer study of ancient law, seems to be a comparatively modern conception. Ancient law knows next to nothing of individuals ; it is con- cerned not with individuals, but with families ; not with single human beings, but groups. It is more (34) § 51 PROPERTY IN GENERAL. 35 likely that joint ownership and not separate own- ership prevailed in primitive societies. § 51. Origin of private ownership. — Out of this community ownership, in which the rights of all the individuals were blended, there grew the idea of private property. So long as the family or tribe or community held property in common the right of individual or private ownership was practically ignored, if, indeed, it existed at all. This right grew and strengthened as the family, tribe or com- munity disintegrated under the ameliorating influ- ences of advancing civilization, and as the individ- ual escaped from the tyranny of the head of the family or the chief of the tribe. § 52. Its importance. — The power or assertion of exclusive ownership is manifested by boundaries, fences, walls encircling land, and the actual posses- sion and control of personal property. This domin- ion of the individual over his property is permitted and defended by the state as a pure matter of con- vention and policy. In a savage state it is not es- sential, except as to things of little value, but in a civilized society it is the basis of property, and with- out it progress would seem to be impossible. Land be- ing indestructible in character, limited in extent and incapable of increase, can not be regarded as a true subject of permanent individual appropriation. And however important it is that the tenure of the culti- vation of the soil should be secure, the paramount dominion of the state over every part of its territory is a fact which in a high condition of social progress can not be emphasized too strongly or made to be felt too universally and really. By enactments pro- 36 ELEMENTARY LAW. § 53 hibiting the entailment of estates in land by abolishing primogeniture, by succession taxes, and other devices in case of need, the states of the Union have it in their power to prevent the hurtful monopolization of land. To protect this right of property, whatever may be its origin or extent, the law has provided numerous methods to prevent the invasion of the right, and to redress wrongs by which it is violated. The laws for redressing injuries to the rights to life and personal security are comparatively few — the laws for the pro- tection of the right of property are, as we shall see, numerous. § 53 . Kinds of property. — There are three kinds of property which are the subject of individual owner- ship, real, personal and mixed, and these are subdi- vided into corporeal and incorporeal. There can be no individual or exclusive ownership of any object which can not be exclusively possessed or enjoyed ; so that the elements of light, air and water, which a man may occupy and use by means of his windows, his gardens, his walls and other conveniences are his so long as they remain in his possession, but if he ceases to possess them or voluntarily abandons them, they return to the common stock, and the next taker has an equal right to seize and enjoy them. This principle applies to animals ferae naturae, surface and subterranean streams of water, and veins or res- ervoirs of oil or gas beneath the soil. The doctrine of ancient lights which once prevailed in England, that is, the right that the first builder upon ground had to prevent the owner of the adjoining ground from erecting a structure that would shut out the lio-ht or air from the first builder's house, has been § 53 PROPERTY IN GENERAL. abandoned in this country. The owner of the soil has the right, in the absence of boundaiy agree- ments to the contrary, to dig as deep and to build as high as he sees fit, so long as he conforms to the lines of his own boundaries, and does not undermine or injure the land or buildings of his neighbor. Real property consists of land and structures per- manently affixed to land. Personal property consists of such things as are movable and may attend the person of the owner wherever he may go, as goods, money, jewels, chattels and the like. Mixed property is that kind which is not altogether real nor personal, but partakes of the nature of both, such as heirlooms, pews in a church ; and title deeds to an estate have been held to be mixed property. Corporeal property consists of such material things as may be apprehended by the senses, as lands, goods, animals, and may be the subject of actual manual possession and capable of being transferred by delivery. Incorporeal property is that which consists in legal right merely, as choses in action, rights of way, ease- ments and the like. It is a legal right which one man has, not to the property of another, but in it; as in the case of a right of way, the land is owned and in possession of one as corporeal property, while another has the single right of passing over it, which is in- corporeal property. Both are valuable property rights and the owners of them respectively will be pro- tected in their enjoyment by the courts. Incorporeal property may be acquired by agreement, or it may be 38 ELEMENTARY LAW. § 53 created by operation of law, as when one sells a par- cel of land in the center of his own field, the buyer by operation of law acquires a right of way over the seller's other land which surrounds his. , CHAPTER VII. REAL PROPERTY. § 54. Real property. — The law of real property, vU) as it exists to-day in the United States, is full of in- ° tricacy. The commercial spirit of modern times has broken down many of the artificial barriers which / the f eudal sy stem and the English laws of descent and tenures interposed to prevent the quick and easy transfer of landed estates. But enough of the old rules survive to confuse and perplex the student, and to tax the experienced lawyer, when he is called upon to decide concerning the rights of claimants to land. It is only intended here to give in outline some his- torical facts and general rules showing how and from what source titles to land are derived, and how they are transferred from one person to another. § 55. Titles in the United States.— It is a funda- mental principle in the English law that the sover- eign was the original proprietor of all the land in the kingdom. The same principle holds good in the Jr^y United States as to all lands which are known as public lands. By the terms of their charters, the original colonies which became states reserved the right when the Union was formed to hold and dispose of the lands within the boundaries of their respective grants independently of the nation. Virginia, by ces- sion of parts of her territory to the United States, aban- (39) tty 40 ELEMENTARY LAW. § 56 doned her original claim, reserving to herself, how- ever, certain portions now in the states of Kentucky and Ohio, which she bestowed upon her soldiers who served in the Revolutionary War. Titles to lands lying within the territories acquired by purchase and annexation since the formation of the Union, such as Florida, Louisiana, Texas, California, New Mexico, Arizona, Colorado, are held and derived from two sources. § 56. Land acquired by treaty.— In acquiring these territories, so far as they were acquired by , treaties and annexation, the United States agreed that titles held by grant from Spain, France, and Mexico should be respected and treated as If » valid. Lands not granted at the date of the treat- ies became part of the public lands, and titles to such lands are derived from the United States. §57. Indian titles. — In the fifteenth and six- teenth centuries, when navigators from Europe made their discoveries upon the American continent, Spain, France, Holland and England tacitly agreed that discovery and occupancy gave title to the first comer, not only against other European nations, but against the native Indians. The absolute title of the Indians "yielded to the military, intellectual and moral power of the European immigrants." The In- dians were allowed to occupy, but not to dispose of the land, except to the government within whose boundaries they lived. This rule grew out of the ne- cessities of the case. To have allowed the Indian tribes to make transfers of land to other nations would have been a mischievous source of controversy and war. The policy of our government lias been § 58 REAL PROPERTY. 41 to treat the Indians as wards. Whether our duty as guardian has been discharged with a due regard to the rights of our wards is a matter upon which opin- ions differ. Little by little, however, the Indian titles have been extinguished, and the Indians them- selves have been confined to certain reservations, un- til now the lands they are permitted to occupy are a " mere patch " when compared to the immense do- main which they used or possessed when the Euro- peans discovered the continent. § 58. Injustice to Indians. — The whole subject of the relations of our government to the Indians, and of the extent and nature of their title to the lands occupied by them, has been treated so thoroughly and exhaustively in the opinions of Chief- Justice Marshall and Mr. Justice McLean, in the case of Worcester v. The State of Georgia, G Peters, p. 515, that it is deemed better to refer the reader to that source of information, rather than to attempt to set forth here what at best would be but an imperfect statement of it. In closing his lecture upon this topic, Chancellor Kent says: "The federal gov- ernment, since the period of our independence, has pursued a pacific, just and paternal policy to- ward the Indians within their broad territories. It has insisted on no other claim to Indian lands than the right of pre-emption on fair terms ; and its plan of permanent annuities as an ingredient in the con- sideration of purchases has been attended with bene- ficial effect. Our government has labored to pro- tect the Indians from wars with each other, from their own propensity to intemperance, and from the frauds and injustice of the whites, and to impart to 42 ELEMENTARY LAW. § 59 them some of the essential blessings of civilization. The Indians of the present day are a feeble and de- graded remnant of a once proud, spirited, enterpris- ing race, and are hastening to annihilation." The author of the book entitled, "A Century of Dis- honor," who spent many years with the Indians in the western territories, makes the statement that our gov- ernment has broken all the treaties it ever made with the western tribes, and that so far from pursuing " a pacific paternal policy," it has played the role of a very cruel step-father in its intercourse with them. § 59. Definitions. — Having considered the begin- ning or foundation of the titles to land in this country, we come now to speak of the interests which individ- uals may own in land. (Things real consist of land, ''tenements and hereditaments] The term land com- prehends any ground, soil or earth. It also includes all buildings erected upon it, though cases may arise where by agreement of parties, or by the nature of the structure and the intention with which it was placed upon the land, it may have and retain the character of personal property. Under the term land is included the water which covers the land, so that we do not speak of so many acres of water, but of so many acres of "land covered by water," which was the phrase used in pleading and conveyances, but now the term land will cover and include all water, whether of lake or stream, within its bounds. Tenement, in its origi- nal, proper and legal sense, signifies everything that may be holden, provided it be of a permanent nature ; whether it be of a substantial and sensible or of an unsubstantial, ideal kind. But an hereditament, § (30 REAL PROPERTY. 43 says Sir Edward Coke, is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatever may be in- herited, be it corporeal or incorporeal, real, personal or mixed. Hereditaments are of two kinds, corpo- real or such as affect the senses, such as may be seen and handled by the body; incorporeal are not the objects of sensation, can neither be seen nor han- dled, are creatures of the mind, and exist only in contemplation. § 60. Lands bounded by streams. — The grant of a stream of water by that name will not pass the land over which it runs, but the grant of a parcel of land passes the property in a stream of water which runs over it as much as it does the property in the stones at the bottom of the stream. One who owns land on both sides of a stream owns the whole bed of the stream. When a stream bounds the lands of two, each owns to the thread of the stream. The owner of land over which water flows has the right to use the water without diminution or obstruction, except so far as the reasonable use of the same by other ri- parian owners may affect it. Strictly speaking, he has no property in the water itself, but a simple use of it while it passes along. No proprietor of land bounded by a water-course has a right to use the stream to the prejudice of another proprietor. He may not dam it so that it overflows the lands of those above him, except (1) where he gets their per- mission, or (2) where for certain public uses the statute authorizes him to do so upon compensating the owners for the injury. He may not foul the 44 ELEMENTARY LAW. § 61 stream by carrying on a noxious trade which poisons the water or makes it unfit for use. Where land is described as bounded by a non- navigable lake, pond, or stream, the general rule is that the boundary is the center or thread. This rule does not hold where there is anything in the grant to indicate a different intention. Where land abuts on the sea or its estuaries, or upon rivers in which the tide ebbs and flows, — only these being navigable at common law, — the boundary is at high-water mark. In America there is some conflict as to what rule shall be applied to fresh water lakes and the large rivers, which are navigable in fact but not at common law. As to these the weight of authority places the boundary at low-water mark. Where a non-navigable stream gradually changes its course, the boundaries follow the change in the waters ; but if the change be abrupt, the ownership remains ac- cording to the former bounds. § 61. A proprietor of an island in a water-course owns to the thread of each branch of the stream, which in its natural course divides it from the main land. And where a water-course is thus divided by an island, and the smaller portion descends on one side, the proprietor by whose bind such smaller quantity flows is entitled to no more water than naturally runs between his bank and the island. § 62. Islands. — Where islands are formed in the sea or a navigable river, they belong to the sov- ereign ; in rivers not navigable and above where the tide ebbs and flows, they belong to the owners of the adjoining land. If .there be an island exactly in the middle of the stream, it is equally divided between the two proprietors. But if one portion approaches § 63 REAL PROPERTY. 45 nearer to one side of a stream than it does to the other, the greater part belongs to the owner of the nearer estate, according to its approximation thereto. When a river is the boundary line between two na- tions or states, if the original property be in neither and there be no agreement about it, each hold- to the middle of the stream. But where one state is the original proprietor, and grants the territory on one side, as in the cession by Virginia of the territory northwest of the Ohio river, it retains the river within its domain and the boundary of the lands ceded ex- tends only to low- water mark. § 63. Fixtures. — There is much controversy as to what is a proper definition of a fixture. A fixture is something annexed to land, as buildings, machin- ery or The like. Sometimes the manner and purpose of the annexation makes it a part of the realty, some- times though annexed in a permanent manner it re- tains its character of personalty. Thecliattcl must not only be laid upon the land, it must be annexed, set into, or fastened upon it, to become a part of the realty. Nor will every such annexing make it part of the realty. If a tenant puts a building or ma- chinery upon land with the express agreement with the landlord that at the end of the term it may be re- moved, it does not become a part of the realty, un- less during or at the end of the term he fails to re- move it. But where the duration of the tenancy is un- certain, the law allows the tenant a reasonable time for removal of fixtures after the end of the tenancy. The^ geinBral rule, is that in the absence of a valid agreement to the contrary, fixtures once annexed become part of the land, so that conveyances, mort- 46 ELEMENTARY LAW. § 64 gages or other liens upon the land cover them. When the tenant puts up trade fixtures to be used in connection with his particular business, it has been held to be such a declaration of intention as to pre- vent their becoming part of the land. The old rules have been relaxed, so that it may be said that as be- tween landlord and tenant, the latter may remove all such fixtures of a chattel nature as he himself has erected on the premises for ornament, domestic con- venience, or to carry on trade, provided that such removal may be made without material injury to the freehold. The rule is modified sometimes by the usages and customs of particular localities or trades. As b etween vendor an d vendee, the rule is that all fixtures attached to the land by the vendor, and on the land at the time of the sale, pass to the ven- dee, unless they are expressly reserved by the terms of the contract of sale. § 64. As between heir, devisee and executor, the rule is that fixtures annexed to the land by the tes- tator go to the heir or devisee, and the executor has no right to them, unless the intent of the testator to have them treated as personalty has been plainly ex- pressed. In an early case in Ohio the following were enumerated as the requisites of a fixture: (1) That it be actually annexed to the realty, or some- thing appurtenant thereto. (2) That it be appro- priate to the use or purpose of that part of the realty with which it is connected. (3) That it be intended by the party making the annexation to be a permanent accession to the freehold. What the intention was in making the annexation is inferred from the following facts, viz., the nature of the § 65 REAL PROPERTY. 47 article annexed; the relation of the party making the annexation, whether owner, tenant, etc. ; the structure and mode of annexation ; the purpose or use for which the annexation has heen made. § G5. Boundaries. — Land has an indefinite extent, up wards a n d downwar ds. No man has a right to erect a structure, any part of which overhangs the the land of another. If a tree planted on one man's land extends its branches over the adjoining prem- ises, to the injury of another, the owner is responsi- ble for the damages caused thereby, and the injured party may remove so much of it as overhangs his premises. A grant of land carries everything on it or beneath it, whether it be woods, houses, waters or metals, — in a word, it carries everything terres- trial. § 66. Boundary lines may be fixed by agreement. They may be established by^prescription. They may be settled by th^ conduct of the parties amounting to an estoppel. In the absence of these the law fixes boundary limits as a matter of policy, and in the in- terest of peace. A grant of land bounded by a navi- gable river, where the tide ebbs and flows, extends only to the high-water mark, but it has been held that, subject to government supervision and control, the owner of adjacent lands has the right to erect wharves and piers extending to low-water mark. § 67. Land bounded by highways. — Where a pub- lic road is the boundary line, the owners of land at each side own to the center of the road, and they have the exclusive right to the soil, subject to the right of passage by the public, and may use it in any way which does not impair the public right. This rule 48 ELEMENTARY LAW. § 68 as to ownership to the center of the road will always prevail unless there is an express abandonment of the right by the owners. If, under the power of eminent domain, the highway is appropriated in whole or in part for any other public use, the ad- jacent land-owners are entitled to compensation for such increased burden. § 68. Appurtenances. — In grants of land, the phrase, "and all appurtenances," is commonly used. An appurtenance is a thing belonging to an- other thing ancP which passes as incident to the principal thing. It is inferior to the thing granted, but of the same naturej Land can not be appurte- nant to land, and a conveyance of land bounded by the line of an adjoining highway will pass no title to the soil over which the highway passes, but the grant will give the grantee a perpetual right of way as an appurtenance. As a general rule, a grant of land carries with it as appurtenances all apparent benefits and easements that are incident to it and necessary to its beneficial enjoyment, and which the grantor had full power to convey; and they pass, whether acquired by grant or prescription, or originally in- cident to the estate. A grant of a mill with ap- purtenances covers the head of water by which it runs, also all water rights and privileges used with and incident to it. It is not necessary to use the term, "appurtenances," to convey rights that act- ually are such, for they pass as incident to the land, whether that term is employed or not. CHAPTER VIII. INCORPOREAL PROPERTY. § 69. Kino's of incorporeal property. — Judge Cooley criticises Blackstone's definition of an incorporeal hereditament as "a right issuing out of a thing corporate (whether real or personal) or concerning or annexed to, or exercisable within the same," and defines it as "/any intangible right which is capable of being inherited, though it may exist wholly inde- pendent of any corporeal property whatsoever. V Blackstone says there are ten sorts of incorporeal hereditaments : a dvowsons , ti thes, c omm ons, ways, offices, dignities, franchises, corodies or pensions, annuities and rents. §T70. Advowsons. — Ad vowson is the_ right of pre- sentation to a church, the right of the lord~bf a manor to designate what parson shall minister to the parish and enjoy the living appurtenant to it. This subject has no place in American law, under which all religious societies are purely voluntary, and pas- tors are chosen as the people see fit, or as the usages of the particular ecclesiastical organizations pre- scribe. § 71. Tithes. — Strictly speaking, tithes are a tenth of the annual increase and profits of lands and stock upon lands and the personal industry of the inhabi- tants. In all countries where there are religions es- 4 (49) 50 ELEMENTARY LAW. § 72 tablished and maintained by public law, provision is made for the support of the clerg} r . It is supposed that tithes were introduced in England in the sixth century, when Augustin, the monk, planted Chris- tianity among the Saxons. The first decree enforc- c ing the payment of tithes was made A. D. 786. At w first, these tithes were paid to the bishops, who al- lotted them among the clergy of their dioceses, but when the bounds of the parishes became definitely fixed, the tithes were paid directly to the priests of the several parishes. Sometimes, by agreement be- tween the land-owner and the parson, some land or other recompense was given in lieu and satisfaction of tithes. And sometimes by prescription certain lands or persons were exempted from the payment of tithes. A modus, as it is called, was a special manner of tith- ing, whereby the general Law was altered as where something in lieu of the tenth part of the annual increase was paid to the parson. To jnake a modus good, it must be certain and invariable. The thing paid must be beneficial to the parson. It must be different from the thing compounded for. It must be as durable as the tithes discharged by it. Al- though interesting as a historical study of the growth and progress of the law, it is not deemed wise or profitable to consider more fully in this place these matters which do not enter into the practical administration of the law in this country. § 72. The right of common. — This is defined to be a profit which a man hath in the land of another. J By the English law, the lords of manors were re- quired to allow certain of the manorial lands to re- main unenclosed, upon which the inhabitants could § 73 INCORPOREAL PROPERTY. 51 pasture what were called commonable beasts, which were either beasts of the plow, or such as manure the ground. As lands became more valuable, the lords of the manors began to enclose the commons, and par- liament in the reign of George III enacted a law which has been repeatedly amended, regulating the inclosure of commons. T he right of common in the — V, \ United States is a narrow right. In tide- waters the right of taking fish is common to all citizens. In rivers where the tide does not ebb and flow, it is said that the proprietor of the bank has an exclusive right of fishery to the thread of the stream, but it has been held that in large navigable rivers, such as the Sus- quehanna, the public at large have a common right of fishery. For the taking of fish where the public have the right, no person can lawfully go upon the land of another without license. In ordinary streams within the boundaries of a man's land, or where the stream is the dividing line between two proprietors, no one has a right to fish without the li- cense of the riparian proprietors. Kent sums up the American doctrine thus : The right of fishing in navigable or tide waters below high-water mark is a common right. In streams not navigable, the owners of adjacent lands have the ex- clusive right of fishing each on his own side. Such right is held subject to the public use of the waters as a highway and to the free passage of fish. § 73. Right of way. — The right of way is the right of going over another man's, land. Ways are either I public o£ p rivat e. A publicway may be established either by the dedication of the owner of the land, oi by the appropriation of a man's land for the purpose 52 ELEMENTARY LAW. § 73 in proceedings at law, under the authority of the state by virtue of its right of eminent domain. And first of the manner in which the owner may dedicate his land as a public way. Dedication is the setting apart of land for public use. It is essential ' % Ho every valid dedication that it should conclude the owner, and that as against the public it should be accepted by the proper local authorities or by general public user. There are two kinds of ded- ication /statu tpr_y_dedication and .commo nlaw dedi- cation.' Where the statute requires that the dedica- tion shall be evidenced in a particular way, as by < lA^plats or maps, and that they shall be acknowledged : before some competent officer, these requirements must be strictly complied with. Unless the proper local authorities accept the dedication, such ways can not properly be called public highways, in the sense that the expense of maintenance can be cast upon the public. But where lots have been pur- chased, according to plats or maps showing certain streets and alleys upon them, these alleys and streets will be kept open as ways for the benefit of such persons as have made such purchases. A stat- utory dedication is by way of grant, a common law dedication arises by way of an estoppel in pais. No writing is necessary to a common law dedication — no formality. The mere throwing open the land to the use of the public for a way is a dedication if the public accepts it. It must be clear, however, that the land-owner intends to give the right. The fact that the owner acquiesced in the use of the way by the public for twenty years is sufficient evidence of in- A, tent. If the public are in the habit of using such a k ^ M -i. § 74 INCORPOREAL PROPERTY. 53 way, and the owner does not wish to dedicate it, he can by unequivocal acts assert his right, as by putting gates or fences across the way even once in a year. U -vv*^ It lias been said that one act of obstruction by the owner is better evidence of intent than years of ac- quiescence in the use by the public. But if the use is continuous and uninterrupted for twenty years the way is established. Dedication may arise, in a shorter period than twenty years, when the intent to dedicate is positive and manifest, and the question of intent is a question of fact for the jury. When a dedication is once made it can not be revoked. § 74. Private rights of way. — Private rights of way are of two kinds: Those which are purely personal and can not be assigned, and those which are appurte- nant or annexed to an estate and pass with a convey- ance of the estate. A private way maybe created by a jj^w i / grap t, or it may ariseyb y operat ionjDfJaw or necessity. Itarisesby operation of law ornecessity where one sells a parcel of land which is surrounded wholly by the A? lands of the grantor or by his lands and the lands of others. In such case, the vendee has the right of way over the lands of the vendor to the public high- way. The right to locate the way rests first in the vendor. If he fails to locate it within a reasonable time in a convenient manner, the right to locate it is in the vendee, and when once located it must be ad- hered to. The doctrine of dedication has no appli- I ' ,lU*- c cation to a private way, though that right may be es- tablished by uninterrupted user for twenty years. To make good a private way by prescription, the use ^ must be/definite as to manner and location. It must be under a claim adverse to the owner and not un- 54 ELEMENTARY LAW. § 75 der license. It must continue for the whole period, i. e., twenty years, without interruption. § 75. Temporary rights of way. — There is a tem- porary right of way over the adjoining land if a public highway becomes impassable, as by the falling of a tree, the washing away of a bridge or a part of the highway itself. But this is not so of a private right of way, the reason being that the owner of the way may be bound to repair, and the condi- tion of the private way may be owing to his neglect ; but if a public highway becomes impassable, it is for the general good that the people should be entitled to pass in that direction. § 76. Easements. — An easement is a right in the owner of one parcel of land, by reason of such own- ership, to use the land of another for a special pur- pose not inconsistent with a general property in the owner. We have already spoken of rights of way, both public and private, which are both easements. To these may be added the right to water cattle at a spring or pond or stream on the land of another, the right to take and use such water for domestic purposes, the right of the owner of a building to discharge the water from his roof upon another's land, the right to swing doors, shutters, gates over another's land, the right to lay pipes to conduct water, gas, sewage, the right to put a parti- tion fence or a party wall partly on the land of an adjacent proprietor. A mere permission by one land-owner to another to use his land for a given purpose is a license, and will not be an easement. An easement by prescription can only be perfected in the manner pointed out as to rights of way. § 77 INCORPOREAL PROPERTY. 55 A party wall is a wall built by agreement on the division line of estates, which each proprietor has a right to use as a support to buildings. Each owner of land has an easement in the adjoining laud for lateral support of his land in its natural state. This easement does not extend to any structures which increase the weight. In constructing a party wall, the builder must erect it in a skillful manner, and if he does not do so he is liable for any damage that may result. Either party may repair the wall by underpinning, or increasing its height, but he must be careful that no damage is occasioned thereby. Where one erects a wall partly on the land of an- other, who sees it and has reason to believe that the builder looks to him for contribution, the jury may, from such conduct, infer that he agreed to pay for it. Express agreements of the parties in relation to the building, use, repair and payment for party walls are binding. It is an unsettled question, however, whether such agreements continue in favor of and against the assignees or grantees of the parties who make them. Easements may be lost by non-user where an in- tention to abandon may be inferred. They are ex- tinguished where the same party becomes the owner of the dominant and servient estates, the maxim be- ing that no man can have an easement on his own land. § 77. Offices and dignities.— Offices and dignities, which are mentioned by Blackstone as incorporeal hereditaments, cannot be so considered in a country where most offices are elective at stated times for lim- ited terms, and where none are held longer than 56 ELEMENTARY LAW. § 78 during good behavior. Officers in private corpora- tions are mere agents, whose authority and duties will be treated of in their appropriate place. § 78. Franchises. — A franchise is a special privi- lege conferred by government on individuals, which does not belong to the citizens of the country gen- erally by common right. Kent defines it as a particular privilege, conferred by grant from the government and vested in individuals. In a popular sense, it is synonymous with right or privilege, as the elective franchise. Among the most important of modern franchises is the right to be a corporation, the franchise to control a toll road, or bridge, to keep a ferry. § 79. Rents. — Rents are a species of incorporeal property. Rent is a compensation given for the possession of some corporeal inheritance. It may be paid in money, in kind, by services, or in any man- ner agreed upon by the parties. Rent irregularly due and payable on the premises from which it arises. Where a forfeiture of a term for non-pay- ment of rent is attempted, the rent by the old rule was strictly demandable and payable before the time of sunset of the day whereon it is reserved, but nowitis not considered due until midnight of the natural day on which it is payable. The day of payment is usually fixed by the contract, and when this is silent it is payable monthly or quarterly, according to the custom prevailing at the time and place. § 80. Liens. — A lien is the right of a creditor to have his debt or demand satisfied out of specific property. Liens may be classified as statutory, equita- ble, created by contract or common law liens. The § 31 INCORPOREAL PROPERTY. 57 lien of a state or municipality for taxes, liens given to contractors, material men and laborers upon houses or other structures upon which they have bestow- 1 labor, or for which they have furnished material, liens of judgments, a.re_cx£aleil by- statute. An arti- san or mechanic who receives material with which he constructs an article for another, or receives an article to be repaired, has a lien upon the article for his labor. An innkeeper has a lien upon the bag- gage and personal effects of his guest for his board and lodging. A carrier or a workman has a lien for his charges. An attorney has a lien upon papers or funds of his client in his possession for his services. A banker has a lien on his debtors' funds in the^y* bank. These are examples of co mmon la w liens. Ar\ creditor of a failing or insolvent debtor has a lien upon his assets ; a seller of land who receives a part of the purchase-money has a lien upon the land for the unpaid balance ; a partner who has advanced money to the firm has a lien upon the interests of his copartners. Persons not bound by any obligation to do the service, who perform labor in saving a ship or her cargo, or the lives of persons belonging to her, from danger or loss in cases of shipwreck, dere- lict, capture or the like, are salvors and have a lien upon the ship and cargo for the value of the services so rendered. These are some examples of equita ble lieiis. § 81. Liens, by contract are created by the express agreement of the parties, as in case of a loan of money, when at the time the loan is made the bor- rower either verbally or by written instrument pledges a specific piece of property as security for 58 ELEMENTARY LAW. § 81 the repayment of the money. When the property is personal and is placed in the hands of the lender, it is a pledge. When the borrower retains possession, but executes and delivers to the lender an instrument in writing, giving the lender the right to have his debt paid out of the property described in the instru- ment, it is a mortgage which creates a lien upon such property, which may be enforced by foreclosure, if the debt is not paid at maturity. CHAPTER IX. THE FEUDAL SYSTEM. § 82. Its origin and nature. — While it is not intended, nor is it necessary here, to give a minute account of the feudal system of England, some ac- quaintance with its principal features is requisite to an understanding of the subject of estates in land. The germs of a feudal system existed among the Romans, but in its entireness it never subsisted any- where before it arose in the middle ages in those parts of Europe in which the Germanic nations set- tled themselves after the subversion of the Roman empire. The essential character of the estate de- nominated "feud," or " fief " was that from the first and always it continued to be not an estate of ab- solute ownership. The property, the ownership re- mained in the grantor, the grantee was a mere ten- ant. Originally, these "fiefs" were resumable at the pleasure of the grantor, which made the tenure precarious and kept the tenant in a state of timorous vassalage. To incur the displeasure of his chief or grantor meant expulsion from his estate. The grantor was known as the suzerain or lord, and the grantee as vassal or tenant. Subsequently, the relation of lord and tenant was ameliorated, first by giving the tenure a fixed duration for a term of years. Later still, the relation and tenure became permanent, the (59) 60 ELEMENTARY LAW. § 83 vassal taking an oath of fealty to his lord, in which he bound himself to render fixed services, in return for which he was to have his lands, so long as the service was rendered. The obligation was mutual and an attempt of the lord to dispossess a tenant, who was faithful, was looked upon as an act of in- justice. These fiefs were then extended to life tenures. Then they became descendible to the eldest son, and afterwards to the collateral lines, and still later they became inheritable by females. When fiefs first be- came hereditary is a matter of dispute with his- torians, but in all the changes in the system the relation of lord and tenant survived, the ultimate property was still in the lord. Even after fiefs became descendible, the new occupant was required to make a new oath of fealty and acknowledge his vas- salage, and thus obtain, in form at least, a new grant from his lord, and he was bound to the same service which was the consideration for the first grant. In case of the extinction of the descendible line, or where the fief was lost or forfeited by the crime of the vassal, it escheated to the lord. At first it was only sovereign princes who granted fiefs, but when they became hereditary and fixed, the vassal himself would grant portions of his fief to others, and thus there grew up the practice of subinfeudation. § 83. Allodial estates. — Fiefs were not the only sort of land tenures in the ancient Germanic prov- inces. Some lands were allodial, that is they were held by absolute and independent title, and the holder owing no fealty to an over-lord was free from the exactions and burdens to which the holder of a fief was subject. But this freedom from vassalage § 84 THE FEUDAL SYSTEM. 61 had its disadvantages. If the holder by such a ten- ure owed no fealty, he did not enjoy the protection of a superior, which was due to a vassal who held a fief. Wars were frequent among the feudal lords, and these allodial proprietors were often the victims of oppression. They were without organization, had no superior, and were at the mercy of their more powerful neighbors. This led to a surrender of their tenures to the lords, to whom they made their oath of fealty and secured protection. This absorption of the allodial lands was general in Italy, France, Germany, and England. William, the Norman, had witnessed in France the evil effects of the divided al- legiance of the people. The vassal's first and para- mount allegiance was to his lord, and in cases of con- flict with his king, the vassal was true to his im- mediate protector. After the conquest, William im- posed new conditions upon those to whom he gave the lands of England. The vassal took a double oath, first to the king and under him to the lord. So that Coke could say, in writing of English tenures, that "All the lands and tenements in England in the hands of subjects are holden mediately or imme- diately of the king ; for in the law of England we have not properly allodiam." § 84. Wardship and marriage.— Some of the inci- dents of the system, as it existed in some parts of Germany and France and in England, bore with op- pressive weight upon the vassals. These were the incidents of wardship and marriage. The lord was guardian of the person and estate of the infant ten- ant during minority, and the profits accruing there- from added greatly to the lord's revenues. So, be- 62 ELEMENTARY LAW. § 85 fore a female ward became of age, the lord claimed and asserted the right of tendering her a husband. If she rejected the offer she forfeited the value of the marriage, that is, as much as any one would give to the lord for permission to marry her. This right was extended to male and female heirs, and also to widows. § 85. Local courts. — The grant of land as a fief was usually accompanied by a grant of jurisdiction, under which local courts were established, in which legal controversies arising among the subjects living within the bounds of the manor were adjudicated. These manorial courts founded by the Normans exist under different names in England. § 86. Homage and fealty. — Primarily, the feudal tenure was based upon the obligation or duty of the vassal to render military service to his lord. When the fief was granted, the vassal made homage to his lord in this fashion : " He shall be ungirt and his head uncovered, and his lord shall sit and the tenant shall kneel before him on both knees, and hold his hands jointly between the hands of his lord and shall say thus: I become your man from this day for- ward, of life and limb and of earthly worship, and unto you shall be true and faithful, and bear you faith for the tenements that I claim to hold of you, saving the faith that I owe to our sovereign lord, the king ; and then the lord, so sitting, shall kiss him." The obligation of homage, says Fleta, is mutual, binding the lord to protection of the vassal, as well as the vassal to fidelity. Homage was done without an oath, but when a freeholder did fealty to his lord it was required that, " he shall hold his right §87 THE FEUDAL SYSTEM. 63 hand upon a book and shall say thus: 'Know ye this, my lord, that I shall be faithful and true unto you, and faith to you shall bear for the lands which I claim to hold of you, and that I shall lawfully do to you the customs and services which I ought to do atthe terms assigned, so help me God and His saints/ and he shall kiss the book. But he shall not kneel when he maketh the fealty, nor shall make such humble reverence as is aforesaid in homage." § 87. Military service. — The extent of military service due to the lord from his tenant or vassal was indeterminate at first, but afterwards, as the vassal became more independent, it was fixed by usage or custom at forty days on every occasion in which his lord required his services. Women and the clergy were obliged to send substitutes. Certain public offi- cers were wholly exempt from personal military serv- ice. The other duties of the vassal, as Mr. Hallam gives them, were as follows : "It was a breach of faith to divulge the lord's counsel, to conceal from him the machinations of others, to injure his person or fortune, or to violate the sanctity of his roof and the honor of his family. In battle he was bound to lend his horse to his lord, when dismounted ; to adhere to his side while fighting, and to go into captivity as a hostage for him when taken. His attendance was due at the lord's courts, sometimes to witness and sometimes to bear a part in the administration of justice." § 88. Other obligations of the tenant. — "We have mentioned wardship and marriage as two of the in- cidents of the relation of lord and tenant which were a source of pecuniary profit to the lord. His reve- 64 ELEMENTARY LAW. § 89 nues were replenished by other means. Every new entrant upon a fief paid a sum of money which was ealled a " relief." When a tenant left no heir or forfeited his estate for crime, it escheated to the lord. When a tenant sold any part of his fief, a fine was paid for the permission to sell, and finally there were sums paid for various " aids," — to ransom the lord when a prisoner, to make his eldest son a knight, to marry the lord's eldest daughter by giv- ing her a portion. The amount of the last two was fixed by act of parliament in time of Edward III, at twenty shillings each, but these aids were wholly abolished in the reign of Charles II. § 89. Domesday Book. — King William, when he felt secure in his possession of the English throne, held a council to inquire into the state of the nation and by his order the Domesday Book was compiled. This book contains minute and accurate surveys of the lands of the kingdom. The work was committed to five justices in each county, in the year 1081, and it was finished in five years. This book, or books, for it consists of two volumes, is preserved in the chapter house at Westminster. It gave the king full information as to the military resources of the kingdom, and has been invaluable to the English people in settling disputed boundary lines. § 90. Eseuag'e. — As the hereditary character of fiefs became established, the tenant ceased to be de- pendent and subject to his lord. In course of time, a pecuniary payment became the sole method by which the tenant discharged his obligations. Henry II found it inconvenient to keep the military force of the kingdom in a state of efficiency, and he dis- § 91 THE FEUDAL SYSTEM. »;.", pensed with the personal military services of the vassals, and substituted in lieu thereof the payment of a fixed sum called "escuage," which is simply another name for taxes, as we now know them. §91. Changes in feudal system. — The prai of subdivision and sale of feuds worked great changes in the rules of tenure and succession. This practice became so common that it caused alarm, and by a provision of the charter of Henry III, subin- feudation was restricted, and in the time of Edward I it was forbidden. As a substitute, lands were al- lowed to be sold, but the purchaser took and held title just as his grantor did. This applied to sales of a man's entire interest in land, and was held not to prohibit the voluntary alienation of land by persons during their lifetime. Under the feudal system, lands could not be sold for debt. By degrees, how- ever, the power of the creditor over the debtor's land was increased, until by the modern statutes of bank- ruptcy in England the whole of a bankrupt debtor's lands have become absolutely salable for the payment of his debts. So by a statute (3 and 4 Wm. IV, c. 104), all a decease! person's interest in land of whatever kind, not charged by his will with pay- ment of debts, whether he was a trader within the bankrupt laws or not, constitutes assets to be admin- istered in equity for the payment of debts. § 92. Abolition of the system. — In spite of these changes in some parts of the ancient feudalism, many of its substantial provisions remained in force and it was not until after the civil war, which begau in 1641, that the profits of wardship and marriage, 5 66 ELEMENTARY LAW. § 92 and other feudal prerogatives, were swept away. The court of wards was discontinued in 1645, and it was further enacted that all wardships, liveries, primer seizins, values, forfeitures of marriage, etc., by rea- son of any tenure of the king or others, should be totally taken away, and that all fines for alienation, tenures by homage, knight-service and escuage, etc., were abolished. Of which statute Blackstone says: "It was a greater acquisition to the civil property of this kingdom than even Magna Charta itself; since that only pruned the luxuriances that had grown out of the military tenures, and thereby preserved them in vigor; but the statute of King Charles extirpated the whole, and demolished both root and branches. (12 Charles II, c. 24.) CHAPTER X. ANCIENT TENURES. § 93. Tenure. — Before quitting this branch of the subject, and proceeding to a consideration of modern English tenures, and the law of tenures as it prevails in the United States, let us by way of summary or recapitulation give the nature and definitions of the ancient English tenures, as they existed under the laws of feudalism. § 94. All real property was holden of some su- perior, in consideration of certain services to be ren- dered to the lord by the tenant or possessor of the property. The thing holden was a tenement. The possessor was a tenant. The manner of possession was tenure. § 95. Lord paramount. — The king, because all land was holden mediately or immediately of him, was lord paramount. §96. Middle lords and tenant paravail. — Persons who held immediately of the king, and granted por- tion of their lands to others, were called middle lords. The grantee of the middle lord was called tenant paravail, or the lowest tenant. §97. Free and base tenure. — These tenures were held by four different kinds of service. As to quality they were free or base, as to quantity certain or un- certain. Free services were such as were not unbe- (67) 68 ELEMENTARY LAW. § 98 coming to a soldier, such as fighting for his lord, or paying a sum of money. Base services were servile, plowing, making hedges and the like. Certain serv- ices were fixed in quantity, as to days of military service or payment of a fixed sum. Uncertain serv- ices depended on unknown contingencies. § 98. Frank-tenement and villenage. — From these services arose four kinds of tenure. Tenements were of two kinds, frank-tenement and villenage. Some frank-tenements were held in consideration of hom- age and knight service ; others in free-socage, with, the service of fealty only. Of villenage, there was pure villenage and privileged villenage. A tenant by pure villenage was bound to do whatever was com- manded him, and he was bound to an uncertain serv- ice. A tenant by villein socage was bound to do villein service, but it was certain. § 99. Knight service. — Of these, knight service was the most honorable. For a knight's fee, esti- mated at twelve plowlands (about one hundred and twenty acres) each tenant must attend his lord to the wars for forty days in every year, if called upon ; if he held less than a knight's fee, his service was to be in proportion. These were the original services, and the other incidents grew up by a series of fraudulent impositions. § 100. Aids. — Aids were at first mere benevolences granted by the tenant to his lord in time of diffi- culty and distress, but in time they grew to be matters of right. There were three, viz., to ransom the lord, to make his eldest son a knight, and to marry his eldest daughter. § 101. .Relief. — Relief was a fine or sum of money §102 ANCIENT TENUE (59 exacted by the lord from the new tenant when the estate lapsed by the death of a former tenant. § 102. Primer seizin. — Primer seizin was a sum of money equal to a year's profits of the lands from the heirs of a tenant in capite (one holding im- mediately of the king), which the king exacted. § 103. Wardship. — Wardship gave the lord the custody of the lands and person of the tenant un- der age without being compelled to account for profits. § 104. Marriage. — Marriage was the right of the lord to select a husband or wife for his ward, and if his selection was rejected, he could recover whatever a jury would assess as damages, or as much as anyone would bona fide give for the alliance. § 105. Fines. — Fine was a sum exacted from a tenant for a license to sell part of his holding. § 106. Escheat. — Escheat was the resumption of the fee by the lord, when issue failed or where the estate was lost by the crime of the tenant. Brave and spirited people became restive under these onerous burdens, and but for the statute of Charles II, above quoted, which abolished these ex- actions, the monarchy itself might have been sub- verted. CHAPTER XI. MODERN TENURES. § 107. Influence of feudal system. — Judge Cooley, speaking of tenures in America, says: "Although the feudal system never obtained much foothold in this country, there are many things in our law of real estate which require for their understanding that we bear in mind the fact that the American system is based upon the common law of England, and that that law grew up while the feudal system was in force. As lands in England were held under that system, and its maxims thoroughly pervaded the law of real estate, it was not to be expected that when grants of land were made in this country under cir- cumstances unknown in England, a new system of law with new terms and maxims would at once spring into existence to provide for the new condition of things and bearing no trace of the system which it supplanted." § 108. As a matter of fact, however, the early grants in America were made with a reference to a continuation of something like a feudal tenure, and many incidents of that system attached themselves to these grants. The tenure prescribed was tenure in free and common socage, to be held of the king, as of some manor in England. When the colonies threw off allegiance to the crown, and became inde- (70) §109 MODERN TENURES. 71 pendent states, each of tliem succeeded to all the rights of the crown within its limits, while the United States as a sovereignty succeeded to all the right- of the crown to unoccupied territory not within the limits of any of the states and not previously con- veyed. § 109. Revival of allodial tenure. — Being thus possessed of the vacant lands, the United States and the several individual states have proceeded to make sale and conveyance thereof and to give titles which, though called fees, are in truth allodial. At the same time the states by statutory and constitutional provisions have gradually abolished such of the feudal incidents as still attached to the estates previously granted by the crown, until, as Chancellor Kent says, 3 Com. 513, "By one of those singular revolu- tions incident to human affairs, allodial estates once universal in Europe, and then almost universally exchanged for feudal tenures, have now after the lapse of many centuries regained their primitive es- timation in the minds of freemen." § 110. In America as in England the sovereignty is recognized as the source of all title, and the state succeeds thereto in default of heirs; but this right is not peculiar to the feudal system; neither is eminent domain, which is sometimes referred to as a remain- ing incident of the feudal system. § 111. Estates. — An estate inlands, tenements and hereditaments signifies such interest as the tenant has therein. An estate is either for an uncertain period, as for life, for a certain period of year-, or unlimited, as when it is vested in a man and his heirs forever, without mentioning what heirs. This 72 ELEMENTARY LAW. § H2 last is an estate in fee-simple, which is the largest estate a man can have in lands. § 112. Fee-simple. — The fee-simple, or inheritance of lands, is generally vested in some person or other. Inferior estates may be carved out of it. One may have the fee-simple, another may have a term for years, another may have a life-estate, another may have the right of possession, another may be in act- ual possession, of the same land. §113. Fee-simple in abeyance. — A fee-simple may be in abeyance, according to Blackstone, as where there is a grant to John for life, and afterwards to the heirs of Richard. The fee in such can not vest in the heirs of Richard till his death, because no one can be an heir of the living, and John has plainly a life-estate only. The fee, therefore, is in abej^ance while Richard lives. The inconvenience resulting from this notion has led some learned writers to re- pudiate it. Kent says that though the good sense of the thing and the weight of liberal doctrine are strongly opposed to the ancient notion of an abey- ance, the technical rule is that livery of seizin takes the reversion of the inheritance from the grantor, and leaves him no tangible or disposable interest. He cites Preston on Estates as insisting that an estate in freehold, depending on another estate of freehold and limited on a contingency, must be in abeyance.. § 114. Use of word "heirs." — At common law, where it was intended to conve} T a fee-simple estate by deed, the word "heirs" was essential. In many of theUnited States this strict rule has been abrogated by statute. In some states a form of deed is prescribed by statute, §115 MODERN TENURES. '73 which prescribes what the effect may be. The short form in Indiana, which is in substance, "A con- veys and warrants to B " certain land, describing it, is held to be sufficient to convey the land, with the appurtenances and hereditaments to the grantee, his heirs and assigns with covenants of seizin and warranty, as fully as if these words and the full cov- enants were written in the deed. [A government grant in any form the legislature may prescribe will take effect according to the legislative intent. A grant to a sovereignty requires no words of inherit- ance. 'The strict rule requiring the use of the word " heirs," to create or convey a fee, has no applica- tion to wills. Where the testator's intention to create an estate of inheritance is manifest from the whole will, it will be so construed. )Some states have gone so far as to enact by statute that every devise of land shall be construed to convey a fee-simple, unless it appears by express words that a less estate was intended. In suits to compel the specific performance of agreements to convey land equity will sustain the right of a party asking a conveyance in fee where it appears to have been the intention of the parties to contract for a fee. § 115. Estates for life. — Estates for life are next in importance. These outrank estates for hundreds of years, because it is said that no one knows how long a man may live. Where an estate for life is carved out of a fee the land comes back to the grantor when the estate for life ends, and that which the grantor has is an estate in reversion; if, however, a grant is made for life to one, and at his death to an- 74 ELEMENTARY LAW. § 116 other and his heirs, this latter takes a_remalri (I er _jn_ fee. An estate for life may be for the life of the grantee or for the life of another. An estate for life in this country terminates with the natural death of the person. Civil death, as it is called in England, is not now known in this country. When one en- tered a monastery he was civilly dead, and in this country under the first general bankrupt law the bankrupt was regarded as civilly dead. § 116. Rights of life tenant. — The life tenant has certain rights determining the use he may make of the property. He may take such wood and timber as may be necessary to keep up the buildings and in- closures and to supply him with fuel. He has no right to cut down timber and sell it for mere profit, but if there is a disproportion of woodland to arable land he may make a clearing; that is, he may re- move the growing timber and dispose of the same so as to increase the arable land. The general rule is that he is entitled to the temporary use of the estate as he finds it, but in the United States, whether cut- ting any kind of trees in any particular case is waste seems to depend upon the question whether the act is such as a prudent farmer would do with his own land, having regard to the land as an inheritance, and whether the doing of it would diminish the value of the land as an estate. § 117. Emblements. — On the death of a life ten- ant his representatives have a right to the growing crops, upon which the tenant has bestowed his labor. In fact, whenever one holds lands for an uncertain term, and dies, the emblements, or growing crops, which are the fruit of his labor, go to his repre- §118 MODERN TENURES. 75 sentatives. The mere preparation of the land for sowing will not give such right unless the tenant has planted. § 118. Taxes and interest. — The life tenant who receives the profits of the land must keep down the taxes, and if when he comes to the estate it is incum- bered, he must pay the interest on the incumbrance, though he is not bound to discharge the principal. § 119. Waste. — If a life tenant commits or per- mits waste, he may be enjoined at the suit of the re- mainderman or reversioner. If he permits taxes to become delinquent, so that the estate is in danger of being sold, the courts will sometimes, upon a proper showing, decree a forfeiture of the life-estate. § 120. Estates for years. — An estate for years is where one is entitled to the possession and profits of land for a certain period. This estate is always cre- ated by the acts of the parties. The instrument cre- ating it is termed a lease, and the parties are land- lord and tenant. The execution and delivery of the lease perfects the title of the tenant. Sometimes these leases are practically i ntermina ble, though in form and theory they are for a fixed term, as where one leases lands for a term of ninety-nine years, renewable forever. It is quite common for railway companies to lease their lines to other companies for a period of nine hundred and ninety-nine years, and yet in law such estates and terms are deemed to be of less dignity than a life-estate. In some particulars the rights of the tenant for years are the same as those which belong to the tenant for life. The ten- ant for years has no right to emblements, for the term of his tenancy is fixed, but he may take timber suf- 76 ELEMENTARY LAW. § 121 ficient for fuel and to keep up the repairs of build- ings and enclosures, and he may sublet the premises, unless that right is cut off or restricted by the terms of the lease, and he is liable in damages for waste, and may be enjoined in equity from committing or permitting it. § 121. Rent. — Rent, according to Blackstone, is "a certain profit arising yearly out of lands and ten- ements corporeal," or it is a periodical compensation in money or otherwise agreed to be given by the ten- ant to the landlord for the use of realty, the payment of which may be enforced like any other demand. One occupying the land of another, where there is n_o contract to pay a specific rent, is liable not for rent as such, but for the use and occupation of the prem- ises, the amount to be reasonable, and in cases of dispute to be fixed by the jury. If a tenant is evicted by a title superior to that of his landlord, the obligation to pay rent ceases ; but so long as he remains in possession, neither the right of the landlord to demand rent nor the landlord's title can be disputed by the tenant. A destruction of the premises by some inevitable accident will not exonerate the tenant from liability to pay rent for the unexpired term unless the lease contains a stipulation to that effect. There are ex- ceptions to this rule, as where one rents apartments in a block and the whole structure is destroyed, the obligation to pay rent ceases. And it has been held that where the premises are destroyed after the exe- cution of a lease, and before the lessee has taken pos- session, the tenant is not liable, and so a contract for a term to begin in the future does not bind tho § 122 MODERN TENURES. 77 tenant to pay rent, if before the beginning of the term the premises are destroyed. And in case of a partial destruction of a building, if the insurance company takes possession to restore the premises, the tenant is not liable for rent, while the insurance company occupies the building for that purpose. Where a lease provides for a forfeiture for non- payment of rent when due, a tender or readiness to pay on the premises at anytime before sunset on the day stipulated will be sufficient. If a different place for payment is designated in the lease, the payment or tender must be made there. § 122. Duration of tenancy. — In ascertaining the time of the beginning and ending of a term where the words "month" and "year" occur in leases the Gregorian calendar is used, by which the beginning of the year is January 1. Prior to the year 1752 the Julian calendar, fixing the beginning of the year on the 25th of March, was used. When the word year occurs in a statute or contract it is to be understood as meaning the whole twelve months according to the calendar, unless a contrary intention is clearly ex- pressed. The period of time is always to be settled according to the intention of the parties. At com- mon law a month meant a lunar month, but now it is held to mean a calendar month, both in England and the United States. A natural day is full twenty-four hours, and in legal contemplation the legal day is without fractions, but if two acts are performed on the same day and it is important which was first in time, evidence will be heard to fix the exact hour and minute. This becomes important in disputes as to the priority of liens, deeds, time of re- 78 ELEMENTARY LAW. § 123 cording and the like. In computing time from the day of the date, or from a certain act or event, the day of the date or act is to be excluded, unless it is clear that the parties to the instrument had a differ- ent intent. A week means a full week of seven days, and if by statute or rule of court a notice is to be published for a certain number of weeks, the publi- cation is not completed until the number of weeks has fully expired from the date of the first publica- tion. Thus, if the publication is to be once in each week for six successive weeks, and the first publica- tion is on Tuesday, the publication is not completed without including Monday of the seventh week, which is the forty-second day, and whatever was to be done dependent on such publication could not be done earlier than Tuesday of that week. When the day for the performance of an actor the payment of money falls on a legal holiday, the next business day follow- ing is the one on which performance or payment is to be made ; except, however, that where days of grace are allowed, and the last day of grace falls on a legal holiday, the next preceding business day is the day for payment. The computation of time and the meaning to be given to terms such as "month," "year," etc., are often the subject of statutory regu- lation, and w r here there is a conflict, statute law su- persedes and displaces the common law. § 123. Distress. — Distress was a right which the landlord had at common law to seize and hold the tenant's personal property to enforce the payment of rent. It became unpopular in the United States, has been abolished in some of them by statute, and has been superseded by the ordinary remedies §124 MODERN TENURES. 79 for the recovery of money due. Some states give the landlord a first lien upon all crops for the security of his rent. § 124. Apportionment of rent. — During the exist- ence of the tenancy the landlord or reversioner may sell part of the leased premises. In such cases the rent is apportioned and paid to the new owners in proportion to the value of the land. § 125. Estates at will. — An estate at will was for- merly when a tenant occupied at the mere pleasure of him who had the next estate. The landlord could terminate it any moment without notice. This harsh rule was modified at first, so that an estate at will was equally at the will of both parties, and later it became settled that unless there was an express agreement to hold at will, such tenancies should be construed as estates from year to year. These changes have virtually abolished the old tenancy ;it will, and now such estates are determinable by notices to quit, and the form and length of time for giving notice is regulated by statute. Tenants holding such estates are entitled to emblements, owing to the uncertainty of their tenure. § 126. Estates at sufferance. — An estate at suffer- ance is where one who comes lawfully into possession of land holds over after his interest is determined. And while he is not liable strictly for rent as such, he is liable for such sum as may be reasonable in an action for use and occupation. In some states, a penalty in addition to this is awarded against one who unlawfully deprives the owner of the use of his land . § 127. Base fee. — A base or qualified estate in 80 ELEMENTARY LAW. § 128 fee is an interest which may continue forever, but may be determined without the aid of a conveyance by some act or event circumscribing its duration. A limitation to a man and his heirs, so long as he shall have heirs of his body, or so long as St. Paul's church shall stand, are examples of this sort of an es- tate. The owner of such an estate has all the rights of an owner of a fee-simple, until his estate is de- termined. Such estates are called base because their duration depends upon the occurrence of collateral circumstances which qualify and debase the purity of the fee. § 128. Conditional fee. — A conditional fee is one which restrains the fee to some particular heirs ex- clusive of others, as to the heirs of a man's body, or to the heirs male of his body. At common law this was construed to be a fee-simple on condition the grantee had the heirs prescribed. If he died with- out such heirs the estate reverted to the grantor. If he had such heirs the fee became absolute in him, and he could sell his estate and bar his own issue and prevent a reverter. This right of the grantee was cut off by the statute of Edward I, which pro- hibited a sale by the grantee, to the detriment of his issue and the grantee's reversioner. § 129. Estates tail. — This statute converted what before had been a fee-simple estate into an estate in fee tail. This restraint upon the power of alienation fettered inheritances and created perpetuities, which were condemned by Bacon and Coke and other writ- ers. The landed aristocracy opposed all attempts to facilitate sales of land, but the growing spirit of com- merce and industr}', foiled by the legislature, found §130 MODERN TENURES. 81 expression in a species of judicial legislation, by which the fiction cf a common recovery was allowed to cut off the entail. Common recoveries were iieti- tious suits, in the nature of pious frauds, allowed by the courts, the object of which was to get rid of the mischievous consequences of the statute of Edward I . If the tenant wished to have his estate tail con- verted into an absolute fee, he procured himself to be sued by a fictitious person, who claimed that the tenant had no right to the land. The parties to the suit, as the made-up record would show, then compromised the case and a judgment was entered, the result of which was that what was formerly a fee tail estate was converted into an absolute fee with all its incidents. To such awkward shifts, such subtle refinements, says Blackstone, were our ancestors obliged to have recourse in order to get the better of that stubborn statute of Edward I. The design for which these contrivances were set on foot was certainly laudable, the unriveting the fetters of estates tail, which were attended with a legion of mischiefs to the commonwealth, but while we applaud the end we can not admire the m< § 130. Estates in fee tail with all their inconveni- ences existed in this country before the Revolution. They have now become obsolete from disuse or have been abolished or modified by the legislatures of the different states. The general tendency of judicial decision as well as legislation in this country has been in the direction of removing all limitations upon the power of sale of real estate, and prevent- ing perpetuities. 6 82 ELEMENTARY LAW. § 131 § 131. Tenant by the curtesy. — Where a man mar- ries a woman who is seized during marriage of an estate of inheritance, and has by her issue born alive capable of inheriting the estate, and the wife dies be- fore the husband, he takes an estate for life. This is sometimes called tenancy by the curtesy of Eng- land, though the same estate existed in ancient times in other countries. In this country the rule prevails in all the states where that kind of estate has not been abolished by statute. Though it is held that the wife's dower is lost by her adultery, no such conduct on the part of the husband will work a forfeiture of the curtesy. § 132. Dower. — Do~ r er exists where a man seized of an estate of inheritance dies in the lifetime of his wife. By the common law she was entitled in that case to be endowed of a third of the estate for life. At first it was limited to lands held by the husband at the time of the marriage, but by Magna Charta it was ex- •tended to all lands, of which the husband was seized during coverture. This right or estate of dower exists in all of the states where it has not been modified or changed by statute. Dower can not be claimed as against a mortgage given by the husband for un- paid purchase-money. Nor is it necessary for a wife to join with her husband in a mortgage secur- ing the purchase-money. If the wife unites with her husband in conveying his land, releasing her dower therein, her right is extinguished. If a wife joins in a mortgage with her husband, who dies, and upon foreclosure a surplus above the mort- gage debt is realized, she may have dower in such surplus, though the husband may have released the §133 MODERN TENURES. S3 equity of redemption. Dower may be barred in various ways, though the husband by his act alone, without the wife's assent, can not bar it. It may be barred by deed, by the adultery of the wile, by divorce, by jointure, which is a joint estate tied upon husband and wife by which the whole estate goes to her on his death, by an antenuptial contract in which in lieu of dower a sum of money or something else is agreed to be taken in lieu of dower, by a bequest in lieu of dower, if the widow elects to take under the will. § 133. Assignment of dower. — The widow's dower may be set off or assigned by agreement with the heirs, or by an amicable partition, or by an adver- sary proceeding in which the court will see that she gets her equitable one-third of the real estate, to which her right of dower has attached. § 134. Estates upon condition. — Estates upon con- dition are such as have a qualification annexed to them by which they may upon the happening of a particular event be created, enlarged or destroyed. They are divided into estates upon conditions im- plied in law, and estates upon conditions express or in deed. § 135. Estates upon condition implied. — A tenant for life for years is under an implied obligation to refrain from waste or any fraudulent or wrongful act which would injure the freehold. Fur willful mis- conduct of this sort, the estate may be forfeited. So a grant to a man of an office has the implied condi- tion annexed to it that he will perform its duties. A corporation holds a franchise under the implied condition that it will fulfill its duties to the pub- 84 ELEMENTARY LAW. § 136 lie, and a violation of its duties by non-user or misuse will work a forfeiture of the estate. It is to be here remarked, however, that it is for the state alone, and not for a private citizen to institute and cany on proceedings for forfeiture of corporate fran- chises. The state may waive a condition broken as an individual may. § 136. Estates upon condition expressed. — Where an estate is granted in fee-simple or otherwise, with an express qualification annexed whereby the estate shall commence, be enlarged or defeated upon per- formance or breach of such qualification or condi- tion, it is an estate upon condition expressed. Con- ditions are either precedent or subsequent. Prece- dent conditions must happen or be performed before the estate vests. Subsequent conditions are such which by reason of non-performance defeat the estate already created. § 137. Conditions precedent and subsequent. — The intention of the parties as it appears in the deed de- termines whether the condition is precedent or sub- sequent. A condition precedent which is possible and lawful must be strictly performed. Conditions subsequent which defeat the estate are strictly con- strued against the grantor. Conditions must be an- nexed at the time the estate is created; they must operate upon the whole of the estate, though they may be limited to a part of the land. If an estate in fee is granted with a provision that upon the hap- pening of an event the estate shall cease for a number of years, it would not be good. Conditions can only be reserved in favor of the grantor and his heirs. Conditions which are impossible when made, §138 MODERN TENURES. or become so by the act of God, arc void. Unla conditions are void. Conditions repugnant to the nature of the estate are not good, as if an estate is given in fee on condition that the grantee will not sell it or enjoy it. Conditions in absolute prevention of marriage are void, though in some states widows who take lands from their deceased husbands coupled with such a condition are bound by the conditions. Conditions may be performed by any one having an interest in the estate. Equity will relieve against forfeitures for breach of conditions when compensa- tion can be made in damages. Where a condition is broken the grantor may bar himself from taking ad- vantage of it, as by taking rent afterwards with knowl- edge. Mortgages are sometimes treated under the head of estates upon condition. They are so con- sidered yet in some of the states, but in most of them they are treated as mere liens. The common law rule is that the mortgagee takes the title subject to be defeated by payment of the mortgage debt. This rule prevails in most of the older states, but a large majority of the states of the Union, either by statute or the decrees of the courts, treat a mortgage as a mere lien to secure the debt, while the title remains in the mortgagor until default, foreclosure and sale. The methods b} r which the mortgagor proceeds to en- force his lien after the maturity of the mortgage debt are regulated by the statutes of the different staf §138. Estates in remainder. — Estates in remainder were popular in England because they facilitated the creation of family settlements, and often there were several remainders limited upon one another to pre- vent an estate passing out of the family. Remaind- SO ELEMENTARY LAW. §138 ers are not favored in this country, anything tending to obstruct the free sale of land being opposed to the spirit of our people and institutions. Blackstone's definition is concise and comprehensive. "An estate in remainder is an estate limited to take effect and be enjoyed after another estate is determined." It is a vested remainder where there is a person in being who would have an immediate right of possession upon the ceasing of the precedent estate. It is a con- tingent remainder if the person to whom, or the event upon which it is limited is uncertain. If one holding the fee-simple grants lands to A for twenty years, and then to B and his heirs forever, A is ten- ant for years, remainder to B in fee. Or there may be a grant to A for years, then to B for life, and then to C and his heirs forever, then A is tenant for years, B for life, with remainder in fee to C. These several estates are parts of one estate, the fee-simple of the grantor out of which the three several estates are carved. It follows, of course, that no remainder can be limited after a grant in fee-simple. There must be a precedent estate created, upon which the re- mainder is limited, and this precedent estate is called in law the particular estate. It is essential also that the remainder must commence or pass out of the grantor at the time the particular estate was created. The remainder must vest in the grantee during the continuance of the particular estate, or instantly up- on its termination. A contingent remainder may never take effect, as where there is a grant to A for life, remainder to B's eldest son (then unborn) in tail. If B has no son when the particular estate is §139 MODERN TENURES. 87 determined, viz., at the death of A, the remainder is gone. § 130. Rule in Shelley's Case. — And here is a proper place to consider what is known as the rule in Shelley's Case. It was laid down in the following language in 1 Rep. 104 as follows: "It is a rule of law, where an ancestor by any gift o: conveyance takes an estate in freehold, and in the same gift or conveyance an estate is limited mediately or im- mediately to his heirs in fee or in tail, that always in such case the heirs are words of limitation of the estate and not words of purchase." Land is ac- quired in two ways, by descent and purchase. Where one derives title through a deed or will, he is a pur- chaser. Where it comes to him by virtue of his kinship or relation to an ancestor, he takes by de- scent. But if by will an estate is given which is the same in quality and quantity as that which would go by descent, it is an estate by descent. The effect of the rule in Shelley's Case was to cut off what would seem to be intended as a remainder limited to the heirs of the grantee, and to make the estate an absolute fee in the grantee. This rule has been generally adopted in this country as a part of the common law, although it has been modified or abol- ished by statute in some of them. § 140. Executory devises. — An executory devise of lands is such disposition of them by will that thereby no estate vests at the death of the devisor, but only on some future contingency. Executory devises were created to carry out the purposes of the testator. A devise to a femme sole and heirs upon the day of her marriage is a good executory devise. 88 ELEMENTARY LAW. § 141 If she does not marry the estate would go by descent to the heirs of the testator. A devise to A and his heirs, but if he dies before the age of twenty-one years, then to B and his heirs, is good, though if these words were used in a deed the remainder would be void and A would take a fee. Executory devises were abused by making them the means of creating perpetuities. So there is a rule at common law which has been incorporated into the statute law of many states that the utmost length of time that is allowed for the contingency of an executory devise to happen in, is the duration of a life or lives in being and twenty-one years afterwards. § 141. Estates in reversion. — An estate in rever- sion is the residue of an estate left in the grantor to commence in possession after the determination of some particular estate granted out by him. It grows out of the legal maxim that whatever a man does not dispose of remains to him and his heirs. It is a present interest, but can only take effect in the future as is implied in the definition above given. § 142. Estates in severalty. — Estates are now to be considered with respect to the owners thereof, whether in severalty, as tenants in common, or as joint tenants. An estate in severalty is one which has a single owner. §143. Joint tenancy. — At common law a joint tenancy was where lands or tenements were granted to two or more persons, to hold in fee-simple, fee tail, for life, for years or at will. In joint tenancies, there must be unity of interest, of title, of time and of possession. One of the incidents of this ten- ancy at common law was the right of survivorship, by §144 MODERN TENURES. 89 which on the death of one the entire estate vested in the survivor. In this sense, joint tenancies do not exist in this country, except in the case of conveyances to husband and wife jointly. These are called tenancies by the entirety. No part of such an estate can be sold by one so as to affect the right of survivorship of the other. No part of it can be seized in execution for the debt of either during its continuance, and upon the death of one the whole vests in the survivor. In Ohio the courts have refused to recognize such a tenancy, by holding that husband and wife holding by joint deed or devise are tenants in common, without the right of survivorship. § 144. Tenancy in common. — A tenancy in com- mon is where there are several owners who may hold by different title, in different interests, which may be acquired at different times, the only unity being unity of possession. Tenants in common may have partition of the lands. They may sue one another for waste. The possession of one is the possession of all. If one re- ceives all the rent, or more than his share, he is liable to the other tenants for the excess. They are liable for their proportionate share of the expense for repairs, for taxes, and for insurance. Tenants in common must act in good faith towards each other. One can not buy in the estate for himself at a delinquent tax sale. If one buys in an outstanding title which threatens the estate, he can not claim this in his own right, to the prejudice of his co-tenants, if they are willing to pay their share of the purchase- money. CHAPTER XII. TITLE TO, REAL PROPERTY, HOW ACQUIRED. § 145. Ways of acquiring title. — Title or owner- ship of real property may be acquired by /Occupancy or possession when it continues long enough to ripen into a perfect title£by marriage, by ^devise, by de- scent, by/contract. § 146. Title by occupancy. — Mere possession or occupancy is the lowest form of title, but it is good in the occupant against the world until some one / shows a better title, but any show of right in a claim- ant would be good as against a mere intruder. As we have seen, property without an owner belongs to the first one who takes possession of it. This right, which was so important at the time of the early set- tlements on this continent, is of little value now that most of our public domain has been disposed of. Its assertion by the European nations, who are extending what they choose to call their "spheres of influence" in Africa, bids fair to result in serious complications and wars such as grew up here in the last century between France and England. Where two claim by ^ possessory titles, one being in present possession and' the other having had prior possession, it is the rule in England and America that proof of prior posses- sion is presumptive evidence of title and will prevail over the claims of the more recent occupant. It is (90) § 147 TITLE TO REAL PROPERTY, ETC. 91 not necessary in such a case that the prior possession should have continued for twenty years. The statutes of limitations usually provide that no action for the recovery of the title or possession of real estate shall be maintained after twenty years from the time the j cause of action accrued, unless the person entitled to such action was under the disabilities of infancy, coverture, insanity, or imprisonment. Special periods of limitations are fixed by the statutes of different states and they are constantly undergoing modifica- tion . § 147. Adverse possession. — In order to make pos- session for the statutory period of limitations a bar to an action, the possession must be adverse. Adverse n possession is a possession inconsistent with the right ' of the true owner; in other words, where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than as owner — that is, with the intention of excluding all persons from it, in- cluding the rightful owner — he is in adverse posses- sion of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it, unless there is something to show that his possession is consistent with a recognition of B's title. Adverse possession „ depends upon the intention with which it is taken ) and held. Where there is an unintentional en- croachment on the land of another, as where a man thinking he is building on his own line by mistake puts part of the structure over the line, such posses- sion is not adverse. The possession must be hostile^ or adverse, actual, visible, notorious, exclusive, con- tinuous and under claim of title. 92 ELEMENTARY LAW. §148 § 148. Occupying- claimant. — It sometimes hap- pens that one has a claim of title, and thinking it good enters upon land of another and makes valu- able improvements on it. In such a case the occu- pant may, under the occupying claimant's statutes, which have been enacted in most of the states, file his complaint and have his improvements and the land appraised separately, and the owner is then / given the option to take possession upon his paying the claimant the appraised value of the improve- ments and the taxes paid, with interest, deducting the value of the rents and profits and the damages assessed against the occupant for waste or other causes. If the owner fails to make his election, the occupant may remain in possession upon paying the value of the land aside from the improvements. Tins is not a common law right, but is purely stat- utory. § 149. Title by marriage. — Title by marriage or by dower and curtesy we have already considered. § 150. Title by descent. — Where a man dies in- testate being the owner of lands, the law disposes of the property by transferring the title to those who by / virtue of the law of the place where the land lies are his heirs. The title the heirs take is a title by de- scent, and the person from whom the estate descends i*> called inlaw the ancestor. Thestatutes of descent- vary in the different states according to the wishes of the citizens as expressed in legislation, as in some states, where those of the whole blood of the ances- tor are preferred to those of the half blood, etc. iThose who take land by descent take it charged with /its burdens; these may be in the form of mortgage §151 TITLE TO REAL PROPERTY, ETC. 93 or other lien created by the ancestor, or in the form of a general indebtedness, which, so far as it is in excess of the personal estate of the ancestor, is a charge upon the real estate. Personal-property left by an ancestor also descends to his heirs, but with this difference, the line of descent as to personal/ property is fixed by the laws of the place where the ancestor resided at the time of his death, not where he happened to be, but the place of his fixed resi- dence; while the line of descent as to his land is governed by the law of the place where it lies.' Where heirs are of one class, as sons or daughters, they take equally, share and share alike, but if there are children and grandchildren, the children take a full share each, and each set of grandchildren take what their parent would have taken if living. But in some states, as in Indiana, if there are grandchildren only left as heirs, the estate is divided equally amongst them all. Illegitimate children may inherit from their mothers alone, unless by adoption, according to rules prescribed for such proceedings, they are legiti- mized by the father. § 151. This is not the place to give the rules of descent as they prevail in all the states. It is be- lieved, however, that the following are of general ap- plication. Where heirs take by descent, they take as tenants in common. Posthumous children may inherit. Bastards may inherit from and transmit in- heritance to the mother. Children born before mar- riage and acknowledged after, are legitimate and may inherit. Males are not preferred to females. § 152. Title by devise. — Title by devise is where 94 ELEMENTARY LAW. § 153 the ownership of land is transferred by will. Such a transfer of land is called a devise. The person who takes it is a devisee. The person who dies and leaves a will is a testator, and the person named in the will and charged with the duty of carrying out its pro- visions is an executor. § 153. Wills, — Wills are of great antiquity, and it is said by some writers that it is impossible to find evidence of any time in human history when they did not exist in some form, though Sir Henry Maine maintains that they probably did not exist among the barbarians before their invasion of the Roman Empire. He further says that to the Romans belongs pre-eminently the credit of inventing the modern will, the institution of which, next to the contract, has exercised the greatest influence in transforming human society. § 154. There is no general law of the United States on the subject of wills, each state having its own laws as they find expression in the de- cisions of the state courts, or in statutory enact- ments. Who may make a will is the first question. Generally all persons of full age and sound mind are capable, though in some states married women are deprived of the right. The capacity to make a will must exist when it is made, and subse- quent incapacity will not invalidate it. Whether the testator possessed the requisite capacity is a question of fact for the jury — the interpretation of the will, the power to declare its meaning, is for the court. Ordinar- ily, a will must be reduced to writing and must be subscribed by the testator in the presence of attesting witnesses, who shall also subscribe the same in the § 155 TITLE TO REAL PROPERTY, ETC. 95 testator's presence and at his request. Nuncupative or verbal wills may be made by which personal property can be disposed of, and the manner of making and proving such wills, as well as the amount of prop- erty so disposable, is controlled by statute. After a will is made, it is common for the testator to add to the original will certain modifications of it. These must be reduced to writing, and be attested in like manner as the original will. Such modifications are called codicils. § 155. Ajvjn_jmav_be J revoked in several ways. The making of a new will revokes all prior wills. The testator may revoke his will by mutilating or destroying it with the intent to revoke it, or such mutilation or destruction may be done by any one at the request of the testator. The subsequent sale of land devised by a will revokes the will as to that land. The testator may revoke the will by a writing, subscribed and attested like a will, in which his in- tention to revoke it is clearly expressed. A will is sometimes revoked by operation of law, as when a child, unprovided for in the will, is subsequently born. § 156. Wills relating to land must be executed and attested according to the forms required by tin' law of the place where the land lies. Wills dispos- ing of personal property must be executed according to the laws of the place where the testator resided at the time of his death. The provisions of wills exe-. cuted and proved in a foreign country or another! state may be enforced wherever property is found belonging to the testator, and disposed of by the will, upon producing and placing of record a copy of the will and a duly certified copy of the proceedings by 96 ELEMENTARY LAW. § 157 which the will was admitted to probate. The methods of proving and enforcing the provisions of such wills are regulated by statute. § 157. A^jviKjnay b e se ^ as ide in a suit brought for that purpose by any party in interest, when it is proved that the will was unduly executed, that its execution was procured by fraud or duress, or that the testator did not possess the legal capacity to make a will. • §158. Title by purchase. — The cumbersome meth- ods of transferring title to real estate which were customary under the common Jaw of England have never prevailed in this country, though in some localities there are useless intricacies and mysteries in the forms of conveyance which were invented and are perpetuated by scriveners and lawyers for their own profit and at great expense to their clients. Since real estate has become a commodity, and has lost in public estimation much of that fictitious dig- nity with which it was clothed by the common law, the forms of buying and selling and conveying it have been much simplified. Title bonds, quitclaim and warranty deeds are about the only instruments necessary to carry out the intention of the parties. I A title bond is an agreement signed by the seller / agreeing to convey to the buyer, for a stipulated price to be paid, certain land described in the instrument. / A quitclaim deed is a form of conveyance in which the grantor conveys to the grantee, his heirs and as- signs, all the grantor's present interest in land. A / warranty deed is a form of conveyance by which the grantor conveys land to the grantee, his heirs and assigns, with an agreement expressed in the deed § 159 TITLE TO REAL PROPERTY, ETC. 97 that the grantor will warrant and defend the title against all persons, and against all incumbrances. The form may be varied when the warranty is not general, but_s£ecial, and where certain incumbrances are assumed by the grantee. By special clauses in- corporated in the deed the exact meaning of the par- ties as to what interest is conveyed and what liens are assumed may lie expressed. To make a deed effec- tive to pass title, it must be executed in due form and be delivered to the grantee, or to some one for him. To make the delivery effective the grantor must relinquish all control over the instrument. If, after it is executed, it is put in the hands of a third person, to be by him delivered upon the performance of some act or the happening of some contingency, the instrument is, until the act is performed or the contingency happens, an escrow and not a deed. § 159. Title bond. — The title bond, as we have seen, is a sale of land with an agreement to convey. It must be in writing because by the statute of frauds no action can be maintained on an agreement for the sale of lands or any interest therein, unless the agreement, or some memorandum thereof, is in writ- ing, and signed by the person to be charged thereby, or by some one authorized to sign it for him. Such a bond only gives an equitable estate, even where the purchase-money is all paid, but a court of equity upon proof of payment will compel the seller to make a deed according to his agreement, and the same relief will be given against the heirs of the seller. §1G0. Deeds by owners not in possession. — At 93 ELEMENTARY LAW. § 161 common law the conveyance of land, which at the time of the conveyance was in the adverse possession of another, was void, but this rule of the common law has been abrogated by the laws of many states, although in some of them it is still recognized. The reason for the rule was that the right to make such conveyances tended to encourage litigation, and because, as Coke says, " under color thereof pretended titles might be granted to great men, whereby right might be trod- den down and the weak oppressed." Conveyances of land pending suit involving the title thereto are void, except in states where by statutory enactment they are recognized as valid. § 161. Forms of deeds. — What form is necessary and what formalities in its execution are requisite to give validity to a deed, depends upon the statutes of the state where the land lies. § 162. Registration of deeds.— A deed after its execution and delivery should be recorded promptly. A delay in recording it beyond the time fixed by statute will make the deed void as to subsequent purchasers in good faith without notice of the exist- ence of the unrecorded deed. All sales of interests in land, except leases for short terms specified by statute, must be in writing and should be recorded. To entitle such instruments to be recorded, they must be acknowledged before some officer authorized to take such acknowledgment. § 163. Parties to deeds. — The parties to a deed, especially the grantors, must be capable under the law of making such contracts. If it is intended to convey the interest of the husband and to bar the wife's right of dower, she must join in the deed with § 164 TITLE TO REAL PROPERTY, ETC. 99 her husband, and under the laws of some of the states she must be examined by the officer taking the acknowledgment, separate and apart from her hus- band, to see that her uniting in the deed is her free and voluntary act. A husband may execute a valid conveyance of his lands without his wife join- ing in the deed, but the grantee takes subject to the wife's right of dower, and if she survives her hus- band, she can have her dower assigned to her out of the land. A wife's deed of her own land, with- out her husband joining, is, in most states, void. § 164. Guardian's deeds. — A guardian can only convey his infant's land when authorized to do so by a court having jurisdiction. The deed of an infant is voidable, and may be ratified or disaffirmed by the infant, on arriving at full age. Lands of idiots and lunatics can only be conveyed by guardians, un- der authority of the court. § 165. Deeds of partners. — Real estate owned by a partnership for partnership purposes can be trans- ferred by a conveyance in which all the partners should unite as grantors. If it is desired that one should act for all, his authority should be evidenced by a power of attorney executed by his copartners. And while it is not, as a rule, necessary to have the wives of the partners join their husbands in such conveyances, it is the safer practice to have them do so. § 166. Deeds of corporations. — Corporations, if by their charters they may hold real estate, may convey the same, under the corporate seal and by the officer designated in the laws of the corporation to sign the deed in its name. 100 ELEMENTARY LAW. § 167 § 167. Powers of attorney. — A person holding a power of attorney for the purpose should not, when conveying land, affix his own name, but the name of the principal to the conveyance. Pow- ers of attorney authorizing the conveyance of real estate should be signed and acknowledged and re- corded, so that purchasers dealing with the attorneys may know the extent of their powers. § 168. Deeds by officers. — Sheriffs, master com- missioners, and others appointed by the court, in making deeds should strictly pursue the statute and the decrees of the court authorizing the conveyance. A sheriff's deed executed according to law need not be submitted to the court for its approval, but com- missioners, guardians, executors and others who make what are called judicial sales, should report them to the court with a form of conveyance for the approval of the court. Lands are conveyed by audit- ors or other officers where they have been sold for delinquent taxes. Titles acquired by means of tax sales are, if not regarded with suspicion, carefully scrutinized, and any irregularity in the levy of taxes or sale will vitiate the deed. § 169. Description of land conveyed. — The land should be so described in a deed or agreement for sale that a stranger, without the aid of outside evidence, can go upon the premises and identify them. In states where the public lands have been surveyed in sections and sectional subdivisions, it is sufficient to describe the land as being section No. — , township — , range — , in county and state. Where the land is described by metes and bounds the lines, § 170 TITLE TO REAL PROPERTY, ETC. 101 courses, corners and distances should be accurately followed. § 170. Title by eminent domain. — All private ownership of land is held subject to the state in which it lies, and there resides in the state the power to re- sume possession and ownership of it, whenever the public good requires it. This power has its limits fixed by the constitutions of the United States and of the several states, which provide that private property shall not be taken for public use without just com- pensation. Where it is desired to appropriate land for the purpose of establishing navy yards, arsenal-, or for sites for post-office buildings, custom houses and the like, the government, if it can not secure de- sirable property by purchase, institutes by its proper officers proceedings in the proper courts within whose jurisdiction the land lies, to have the value of the land ascertained. Upon payment of the amount so ascertained, the title vests in the government. This right to appropriate private property for the public- use is called the right of eminent domain. § 171. This right of eminent domain is exercised in another way when private individuals for their own profit embark in enterprises which perform some public service. It can only be exercised where the property is taken for a public use, and where the property condemned is necessary to enable the pub- lic use to be carried into effect. It is also a condition that compensation must be made to the owner, and it is generally held that payment must be made be- fore entry. Cities and towns take property for streets and parks; railroad, turnpike, telegraph, telephone, canal, ferry, gas, water, and irrigation companies, 202 ELEMENTARY LAW. § 172 condemn land for right of way, and exercise this right when authorized to do so by the legislature, with whom rests the power to determine the manner in which, and purposes for which, it may be exer- cised. § 172. The proceedings by which property may be taken and appropriated for the purposes named in the preceding section are regulated by statute, and in this matter there is substantial uniformity in the laws of the several states. The corporation desiring to exercise the right ma}'- file in the proper court an instrument of appropriation, setting forth the uses to which the property is to be devoted, giving an ac- curate description of the property intended to be ap- propriated, and setting out the names of the owners and persons interested in it. The proceedings may be summary, as in some states, where the law does not give the right of trial by jury, or the}^ maybe in the form of a civil action, in which the right to a trial by jury is given. Proceedings in the exercise of the right of eminent domain are not "suits at common law," for which " the right of trial by jury shall be preserved," as required by the constitution. In either case the jury or commissioners selected hear evidence, view the premises and report to the court their finding as to the amount of damages to be paid to the land-owners. When the report is con- firmed by the court, the party seeking the aj)propria- tion may pay the money into court, and enter upon the property. If either party is dissatisfied with the report, an appeal may usually be taken from the award. As the proceedings are purely statutory, the provisions of the statute regulating them must be § 173 TITLE TO REAL PROPERTY, ETC. 103 strictly followed. Judgments in such cases have the same binding effect as ordinary judgments, and they can not be collaterally impeached. § 173. Title by escheat. — Where a person died in- testate in England without lawful heirs the title to his real property went back to the original grantor, or lord of the fee, from whom it proceeded. In this country when a man dies intestate and without heirs, the title to his real property reverts or escheats to the people, as forming part of the common stock of the community, it being a fundamental principle that, if the ownership of property becomes vacant, the right must necessarily subside into the whole community in whom it was vested at the origin of society. This rule, which formerly applied to real property only, is extended by the laws of most of the states to personal property. § 174. Title by forfeiture. — Title by forfeiture is a title which the state acquires to the property of a felon who, with his heirs, devisees and legatees, are deprived of it on account of, and as a punishment for, high crimes. Such forfeitures are by the con- stitutions of many states prohibited. Conditional estates in chattels and real property may be forfeited by breach of conditions, and the misuse of a chattel by a person having a qualified interest therein will sometimes determine his estate in favor of the abso- lute owner. CHAPTER XIII. ' PERSONAL PROPERTY. § 175. Definition. — Personal property embraces all objects and rights which are capable of ownership, except real estate or some interest therein. § 176. Title to — How acquired. — The title to per- sonal property may be acquired in various ways. ( 1 ) By occupancy, as where one finds or takes posses- sion of an article which has no owner or which has been abandoned, or where one captures wild animals, or fish, or finds a jewel to which no one claims title. (2) By increase or accession, as where one owns animals who have young. (3) By confusion, as where one has goods or property, like wheat, and some one wrongfully mixes his property of the same kind with it, so that it can not be distinguished and separated. (4) By gift, as where the owner of an article delivers it to one with the intent to pass the title to the donee. (5) By a written transfer de- scribing the property and the person to whom it is transferred. ( 6 ) By sale by the owner, with or with- out delivery of possession. ( 7 ) B} r succession or de- scent from one who dies intestate. (8) By bequest contained in a will. (9) By operation of law or judgment, as where one is sued for the conversion of another's property and judgment is rendered against the defendant for its value; in such cases, upon pay- (104) J X77 PERSONAL PROPERTY. 105 ment or satisfaction of the judgment so rendered the title to the property vests in the defendant. So the title to the personal property of one dying testate or intestate vests in the executor or administrat u mere force of law. So a qualified title to the per- sonal property of a ward vests in the guardian , 1 the assignee of a bankrupt and a receiver appointed by the court have a title to the goods which come to their possession in the administration of these trusts. ( 10 ) Title to personal property may be acquired also by purchase at a sale by an executor, administrator, guardian, assignee in bankruptcy, trustee, sheriff or other officer who, by law or the decree of a court, has authority to make such sale. § 177. Burial rights. — At common law there could be no ownership of the bodies of the dead, but in some states the law has been modified and some of the rules of property have been applied. In such states the bodies belong to the surviving relatives in the order of inheritance, and they have the right to control the disposition thereof. There would be a right of action against one who robs the grave or desecrates the body. The real injury in such case would not be to the grave or body, but to the feel- ings of the survivors, and the law recognizes such injury as a legitimate basis for recovery of damages. CHAPTER XIV. decedents' estates. § 178. Testator and intestate. — A person dying without making a will is called an intestate, and one who makes and leaves a will is called a testator. § 179. Statutes of descent and distribution. — The personal property of an intestate is distributed to his heirs, according to the statutes of the states where the intestate lived at the time of his death, and his real estate descends to his heirs, according to the laws of the place where the real estate was situate. § 180. Administrator. — Upon the death of an in- testate, an administrator is appointed, whose duty it is to take possession of all the personal property, convert it into money, pay the debts, and to distrib- ute what remains amongst the heirs. The admin- istrator has no right to meddle with the real estate of the decedent, unless the proceeds of the personal es- tate should prove insufficient to discharge the debts, in which case, upon proper application to the court having probate jurisdiction, he will be au- thorized to sell under the direction of the court so much of the real estate as will discharge the debts. The right to administer is generally first in the surviving husband or wife, next in the children, according to age and capacity, next to the largest creditor, and if none of them desire to accept the trust, the court will (106) §181 DECEDENTS' ESTATES. 107 appoint some competent person. When appointed, the administrator is required to take an oath and give a bond for the faithful performance of the duties of his trust. He is at all times under the di- rection and control of the court, to whom he is re- quired to report all his doings in the management of the property which comes to his hands. When he is ready to close the estate, he files his final accounts, and if no objections are made by the parties in inter- est, he is discharged. If an administrator dies, re- signs, or is removed, the court appoints a successor, who is called an administrator de bonis non, and his duty is, as the name implies, to administer so much of the estate as was left unsettled by his predecessor. The authority issued by the court under its seal to an administrator is called letters of administration. § 181. Executor. — An executor named in a will is the person appointed by the testator to carry out his purpose as expressed in the will. It is usual for the executor to give bond and take an oath, though the giving of the bond is sometimes dispensed with where the testator in his will indicates a desire to that effect, and no objection is made by the parties in interest. The authority issued to an executor is called letters testamentary. It is the duty of the executor to carry out the wishes of the testator in the distribution of such articles of personal property as are disposed of by the will. The gift of personal property by will is termed a bequest or legacy, and the person to whom it is given is called a legatee; the gift of real property by will is termed a devise and the person receiving it is termed a devisee. If the executor has cause to fear that the property of the 108 ELEMENTARY LAW. § 181 testator will not be sufficient to discharge the debts of the estate and to pay the legacies, he may require the legatee to give bond that, in case such defi- ciency should occur, he will refund to the estate so much as may be necessary to pay his share of such deficiency. The devisees take the real estate ac- cording to the terms of the will as soon as the will is admitted to probate, subject to the debts remaining after the personal estate is exhausted. The executor, as the administrator, does not meddle with the real estate of the testator unless it is shown to the court that it is necessary to sell a portion of it to pay debts. The reports and accounts of the executor are made and dis- posed of in the same way as the reports and accounts of the administrator. If the person named as executor renounces the trust the court appoints an adminis- trator as in the case of an intestate, and the admin- istrator is called administrator with the will an- nexed, and if this administrator dies, resigns or is removed, a successor is appointed who is called an administrator de bonis non with the will annexed. Executors and administrators receive such compen- sation as the court may allow, or as may be provided for in the will. CHAPTER XV. CONTRACTS IN GENERAL. -+- § 182. Growth of right to contract. — In primitive societies, and under the ancient laws, the rights and liabilities of persons, so far as they had rights and liabilities, were largely fixed and determined by their stations in life, w T hether as lord or vassal, hus- band or wife, parent or child, master or slave. The individual, unless he were lord, master or head of a family, had little or no voice in fixing his rights and obligations. Statu s, a word which is used to desig- nate the personal condition of the individual under these old laws, has been gradually succeeded and almost supplanted by conditions which are the immediate or remote result of agreement, and the great movement of the progress in society has been a movement from status to contract. Socie- ties are civilized and progressive to the extent that the individual can for himself establish such rela- tions as he chooses, work for whom he pleases, and for what he pleases, buy and sell what and where lie can, having no superior to control his will or direct his action, except so far as the necessary restraints of public law impose limits upon such action. § 183. A large portion of the field of jurisprudence is devoted to the subject of contracts. Contracts from their very nature imply that men are disposed in (109) HO ELEMENTARY LAW. §184 good faith to keep agreements which they have en- tered into voluntarily. And the multiplication of the different forms of contract indicates in a marked manner how the confidence and faith of man in his fellow-man have increased. Society is shocked by the great frauds which are sometimes perpetrated by cunning and powerful men, but the great current of commercial and business life is pure. Men as a rule are faithful in the performance of their agreements. Where men from an honest misunderstanding as to their rights under their contracts or from a dishon- est motive to evade them disagree, the aid of the law is invoked to settle the controversy. Some idea of the immense stride societ} 7 " has made may be formed from the language of Sir Henry Maine, who says, " The only form of dishonesty treated of in the most ancient Roman law is theft. At the moment at which I write (1861) the newest chapter in the English criminal law is one which attempts to pre- scribe punishment for the frauds of trustees. " With- out dwelling further upon this interesting branch of the subject, we will now proceed to a consideration of the law of contracts as it exists at present. § 184. Contract defined. — First as to what consti- tutes a contract. Blackstone's definition is as follows: J* 'A contract is an agreement upon sufficient consid- eration to do or not to do a particular thing," which is concise and comprehensive. Judge Metcalf preferred the definition of Chief Justice Marshall, as it is given in Sturges v. Crowningshield, 4 Wheat. 197. It is in these words: "A contract is an agreement in which a party undertakes to do or not to do a par- ticular thing." In this definition the element of §185 CONTRACTS IN GENERAL. m consideration is omitted. The efforts to improve upon these definitions by later learned writers show a great deal of ingenuity and a large command of words, but it is questionable whether their efforts to make things clear have not tended rather to darken counsel. For the student who is trying to master the elementary principles of the law, the definitions of Blackstone and Marshall will be quite sufficient. Chancellor Kent approved Blackstone 's definition substantially as we have given it. § 185. Capacity of parties. — It is essential to the validity of a contract that the parties should have the capacity to contract; they must be of sound/ mind, of adequate age and under no legal disability. The following persons are incapacitated: Insane i persons, drunkards, infants, persons under duress, / and alien enemies during war. In some of the states married women are still incapacitated from making contracts, but these harsh rules are yielding to the demands of an enlightened public opinion, which insists upon enlarging the sphere of woman's rights and increasing her control over her own property. § 186. Void and voidable contracts. — The terms void and voidable are often confused. A contract is void when its terms are so uncertain that it can not be enforced, or where there is a total lack of capacity in one or both of the parties, or where the contract is illegal, being in contravention of some positive law forbidding it ; to these are to be added contracts to refrain from doing what the law requires, contracts which are impossible of performance, con- tracts based upon an immoral consideration, and contracts contrary to public policy. Contracts legal 112 ELEMENTARY LAW. § 187 in part and illegal in part will be enforced as to the legal part if it can be separated from the illegal; if not, the whole contract is void. Voidable contracts are those which are procured by fraud or duress, or those entered into by persons under disability, such as in- fants and insane persons. Such contracts may be ratified, but contracts which are absolutely void are incapable of ratification. § 187. Contracts are executory or executed. — A contract to do a thing, followed by immediate per- formance, is executed; a contract to do something in the future where instant performance is not expected is executory. If one fails to perform an executory contract, performance may be enforced or damages given to the injured party for non-performance. § 188. Written contracts. — A written contract is an instrument fixing the rights and obligations of the contracting parties, concerning the subject-matter of the contract, and signed by them or one of them. It is sufficient if it be signed by one and accepted by the other. The party accepting a written agreement is bound by all its stipulations for and against him. As where a deed is delivered by the grantor and ac- cepted by the grantee, the grantor does not sign the deed, but if it contains covenants which are to be performed by him, as for the payment of an incum- brance or the like, he is bound to perform the cove- nant as much as if he had signed the deed. A written contract may consist of letters or telegrams. It may be written upon several papers at the same time, and if these several papers relate to the subject- matter of the agreement they will be taken as a part of it. §[89 CONTRACTS IN GENERAL. \\:) § 189. Parol contracts. — A parol contract is where the agreement of the parties rests in spoken words only, or partly in writing and partly in spoken words. Parol contracts are valid and enforceable, except where by express law they are required to be in writ- ing. By the rules of common law all contracts not under seal were called simple or parol contracts. But the rules which gave a higher dignity to contracts under seal have been virtually abrogated in this coun- try by usage and by statutes. In most of the states the use of seals is now regulated by statute, the effect of which has been to modify or entirely change the common law usage in regard to seals. In some instances the distinction between sealed and unsealed instruments is done away with in terms, while in others the same result is accomplished by abolishing the use of seals except by public officials and corporations. § 190. Express contracts. — An express contract is one. in which the meaning is stated in plain words, which are mutually understood by the parties in the same way. § 191. Meeting; of minds. — In all express contracts, the agreement of the minds of the parties as to the subject-matter of the contract and as to the obliga- tions assumed by each party must appear. If there is a misunderstanding as to the thing contracted for, or as to the time or place of performance, as to the price to be paid, or any other essential matter, there is no agreement, and consequently no binding con- tract. As if A, having in mind one of several horses in his field, says to B, who has in mind anothei horse in the same field, " I will sell you the horse for one hundred dollars," and B says, "I will take it 114 ELEMENTARY LAW. §102 at that price," here is no contract, for the minds of the parties have not met and agreed upon the same thing. So, if A says, I will sell an article, naming it, for one hundred and sixty-five dollars, and B, supposing that the sum named was only sixty-five dollars, agrees to pay it, it is plain that there is no agreement. These are simple forms of illustra- tion, and they could be multiplied indefinitely. § 192. Time of contract. — Questions arise as to the particular time when the agreement is to be con- sidered as closed, and the rights and obligations of the parties fixed. The general rule is that whenever the minds of the parties meet in agreement as to all the particulars of the transaction, the contract is made and binding. Where the contract consists of correspondence, it is considered as closed and bind- ing whenever there is an offer on the one hand and an acceptance on the other. The acceptance must be without qualification, for if it is qualified or con- ditional, it is not final, and the matter still rests in negotiation. Where a letter containing an offer is transmitted by mail, and an answer accepting the offer in its precise terms is mailed also, the contract is closed and the rights of the parties fixed, at the instant the letter of acceptance, properly addressed, is deposited in the post-office. There has been much controversy on this point, some writers maintain- ing that the contract is not complete until the letter of acceptance has been received by the person who made the offer, but the weight of authority supports the view already expressed. § 193. Implied contracts. — An implied contract is one in which the conduct of the parties is such that §194 CONTRACTS IN GENERAL. H5 the jury may infer that the parties did intend to make a contract. The customer who takes up a merchant's goods, the master who takes a serv- ant into his employ, in the one case there is an im- plied contract on the part of the customer to pay to the merchant the reasonable value of the goods, and in the other case there is an implied contract on the part of the employer to pay the employe the reason- able value of his labor. If parties have an account- ing, and have agreed upon the balance due, there is an implied contract that the debtor will pay the bal- ance. So there is an implied contract by the bor- rower to repay borrowed money. There is a class of cases in which the law implies a contract obligation, regardless of the intention of the parties ; as where one procures the goods or money of another, through fraud or mistake, the law implies an obligation to return or pay. These are sometimes called quasi-contracts. § 194. Contracts of record. — Where a judgment is entered in a court of record, it is called a contract of record, on the theory that every man agrees to obey the laws of the land, and where he is adjudged to owe a sum of money by the law there is an im- plied promise on his part to pay it. Whore a man appears in court, and either on his own behalf or as surety for another, enters into a recognizance con- ditioned for the payment of a sum of money, in case of the failure of himself or his principal to appear in court at a time named, it is a contract of record. In- fants may enter into recognizances which will be binding on them and their estates. CHAPTER XVI. PARTIES TO CONTRACTS. § 195. Who may make valid contracts.— Gener- ally all persons and corporations not disqualified by law. And even infants and lunatics, who are under a general disability to assume obligations that may be enforced against them, may become bound to pay for the necessaries of life which may be supplied for their support. Sovereign states may enter contracts, but such contracts can not be en- forced against them by suit without their consent. Soon after the adoption of the constitution of the United States it was decided that a private citizen could sue a state without its consent, but the consti- tution was amended so as to prohibit the bringing of such suits. Where one state of the Union has a claim against another state, she may sue upon it in the Supreme Court of the United States, which has exclusive jurisdiction of such controversies. Foreign states may make contracts and enforce them by suit in our courts. So aliens residing or trading here have the same right to make contracts and sue upon them as citizens, unless the right is restricted by treaty stipulations between their government and ours; in some states, however, they may not acquire title to land. An alien enemy, that is, a citizen of a na- tion with which we are at war, can make no contract (116) §196 PARTIES TO CONTRACTS. H7 or acquire any rights during war, unless by treaty between the belligerent powers the right is given. He may be sued on existing contracts, and unless a contract existing at the time of the war is of such a character that it is continuing in its nature, war will not destroy it. Where persons engaged in certain callings are required to have a license to carry on their avocations, the statutes of some states make their contracts void, unless they have such license. § 196. Infants. — An infant is a person under twen- ty-one years of age, and while under that age he can make no binding contract except in the following cases, viz. : (1) For necessaries. (2) Contracts entered into by authority of law, as in the case of a recognizance in his own behalf. (3) Contracts cre- ated by law, as where an infant marries he is bound to support his wife. According to the weight of authority he is not bound by a con- tract under which he has received something of value which he can not return. His other contracts arc voidable; that is, the infant may ratify, perform or repudiate them at his option. An infant where his jather has emancipated him, by relinquishing his custody and refusing to maintain him, may receive his own earnings, but it does not enlarge his capac- ity to make contracts. § 197. Infant's contracts for necessaries. — What are the necessaries for the payment of which an in- fant may bind himself by contract ? They include clothing, food, medical aid, and education, and these must comport in quantity and quality with the in- fant's station in life. If he have a wife and chil- dren he is chargeable with necessaries supplied to 118 ELEMENTARY LAW. §198 them. An infant is not bound by the terms of his contract to pay for necessaries be} T ond a reas- onable price for the articles. § 198. Fraud of infants. — If an infant procures goods of a tradesman on a false statement that he was of age the goods can be reclaimed on the ground of fraud. Sometimes courts of equity hold an infant to a contract that he has entered into under a false pretense as to his age. "The privilege of infancy is a shield for his protection and is not to be used as a weapon of injustice." § 199. An infant may be bound by an executed contract in a matter where he would not be bound if it was executory. If an infant were to buy a thing, not being necessaries, he could not be compelled to pay for it, but having paid for it he could not keep it and also recover back the money. If he has put money into a partnership, and has performed serv- ices in the business, he can not on rescinding the agreement get back his money and pay for his labor, too. The privilege of infancy is personal, and can only be pleaded by the infant himself ; except that if he dies or becomes insane, his heirs, administra- tor or guardian may avoid his contracts. § 200. An infant may disaffirm his contract dur- ing minority. If he retains the thing contracted for after he arrives at full age, it is a ratification of the contract. So, if he conveys land after his majority, which he purchased during his infancy, it is an af- firmance. And if he has conveyed land during his infancy, and in his majority conveys the same land to another, the latter deed disaffirms the former. Where he elects to disaffirm, he must disaffirm the §201 PARTIES TO CONTRACTS. 119 whole contract. There can be no ratification of a voidable contract during infancy, for the ratification would be voidable. Retaining after he arrives at ma- jority either goods or land purchased during his in- fancy makes the contract valid. Seine state- by their statutes require that a binding ratification of a i tract made by an infant can only be made in writing. § 201. Contracts made by persons under du are not binding. Duress exists where one by the un- lawful act of another is induced to make a contract or perform some act under circumstances which de- prive him of the exercise of his freewill. There may be duress of the person, as by threats, imprison- ment, or an exhibition of apparently irresistible force, or of the goods, where one is compelled to sub- mit to an illegal exaction to obtain possession of them. The imprisonment must be unlawful in itself, or if lawful it must be enforced in a cruel and oppres manner. The threat or threats must be such as to excite fear of some grievous wrong, and such as would overcome the will of a person of ordinary courage. Where a contract is obtained by duress, it is incumbent upon the person who wishes to avoid the contract on that account to proceed without de- lay. If after the duress he does any act in ratifica- tion of the contract, he is cut off from his defense. § 202. Insane persons. — As a rule, the contracts of persons of unsound mind are not binding upon them. Unsoundness of mind, as here considered, is such a lack of mental capacity as totally unfits one for the care of his own interests. Of persons of sound mind the law takes no note of the grades of mental capacity between the highest and the lowest. 120 ELEMENTARY LAW. § 203 When, however, from disease or any other cause the individual is or has become of unsound mind, as above indicated, he will not be held to his con- tracts, and those who deal with him do so at their peril. One who has been put under guardianship as a person of unsound mind is conclusively pre- sumed to be so, and his estate can only be lawfully dealt with by his legally appointed guardian, who acts for him under the direction of the court. As to a person who has not been adjudged to be of unsound mind, the question of his mental capacity, when it is in issue, is to be tried as any other question of fact, the presumption in such cases being that every person is sane until the contrary is shown. It is not necessary here to go into a discussion of the differ- ent forms of insanity. We are here concerned only with that class of persons who in law are con- sidered to be incapable of making valid contracts. Even a person of unsound mind may in exceptional cases, as an infant may, make binding contracts, viz., for necessaries suitable to his condition in life, and he will be held to his contract where he has dealt with one who in good faith supposed him to be sane, and has performed the contract by paying the consideration to him, if the consideration can not be restored. y~ § 203. Drunkenness. — Where a person is so drunk at the time he makes a contract that he does not un- derstand what he is doing, such contract is voidable, and may be repudiated or ratified by him when he becomes sober. The same exceptions hold good here as in the case of infants and persons of unsound mind. A man when he gets sober can not hold on §204 PARTIES TO CONTRACTS. 121 to the benefits of a contract made when he was drunk, and repudiate the contract also. A drunken man, as an infant and lunatic, may make a valid contract for necessaries. Slight circumstances will be sufficient to ratify the contract of a drunken man. A delay in disaffirming it if unreasonable, or retain- ing the benefit after he becomes sober, will be a suf- ficient ratification. § 204. Married women.— By the common law mar- ried women could not make valid contracts. The ex- tension of the rights of women in most of the states of the Union has practically emancipated them from the restraints of the common law. In the two states of Wyoming and Colorado women have the right of suf- frage equal with men. In Kansas they vote at munici- pal elections. In other states they vote on questions concerning local school management, and in nearly all the states they have the control and management of their separate estates, and as to such matters the married woman is put upon an equal footing with an unmarried woman, or with her husband. Nearly every session of our state legislatures witnesses some innovation upon the rules of law which have re- strained her liberty in dealing with her property. So that it would be foolish here to attempt to state the extent or limitations upon the powers of married women in the matter of contracts. To ascertain what these are recourse must be had to the statute laws of the several states. § 205. Corporations. — The power of a corporation to make contracts is limited by the charter creating it, or, where it is organized under a general law, by the terms of that law. A contract entered into by a 122 ELEMENTARY LAW. § 206 corporation beyond the power so conferred is void. It is manifest that a corporation, being an artificial person, can only contract by and through its agents, and the powers of these agents are determined by the laws of the state, or the articles and by-laws of the corporation, or they may be implied from the nature and functions of the officer or agent who acts for the corporation. It was an old rule of law that a corpo- ration could only contract under its corporate seal, but the necessities of commerce have led to an abro- gation of the rule, so now it may be said that within its powers to make contracts it may make them in any manner that a partnership or natural person may. It hasbeensaid thata contractof a corporation not within its charter or lawful powers is void, but this must be understood with the equitable qualification that where such contract has been executed so that the corporation has received the consideration, and is unwilling or unable to return it, it will not be heard to deny the validity of the contract. If it would re- scind, it must first do equity. § 206. Contracts by agents. — Individuals and cor- porations are bound by contracts made in their behalf by their authorized agents. The necessities of com- merce demand that most of the business of the world be done through agents. Any one capable of acting for himself may be an agent; a minor of sufficient capacity may be an agent and make contracts which will bind his principal. The relation of principal and agent may be created by writing, by parol, or it may be implied from circumstances. An agent can not assume incompatible duties; he can not be agent of buyer and seller at the same time, unless by consent § 207 PARTIES TO CONTRACTS. 123 of both principals, nor can he be employed to do an unlawful act, nor to act in place of another in a mat- ter of personal trust. An attorney, an author, an artist, a physician, whose personal skill is engaged, can not substitute an agent to do his work. So gen- erally an agent can not employ a substitute, unless expressly or impliedly authorized to do so. When, however, the nature of the employment and the mag- nitude and character of the business calls for it, he may employ assistants whose acts will bind his princi- pal. An attorney at law, an attorney in fact, a broker, an auctioneer, a factor, a partner, a ship's master, a ship's husband, these are all agents having power to bind their principals in matters coming within the scope of their respective employments. An attorney at law is an agent employed to conduct and manage an action at law or suit in equity. An attorney in fact is one who is by a power of attorney authorized to do some specific act or acts for his principal. A broker is one whose business it is to bring together parties who desire to deal with one another; he is the agent of both parties and he receives by way of compensation a commission. An auctioneer's business is to act for seller and buyer in selling goods at public outcry. When a sale is closed he can bind both parties by signing a memorandum of the terms. A factor or commission merchant is one who sells goods for persons who make consign- ments to him. § 207. A ship's husband is one employed by the own- ers to manage the affairs of the ship while it is at a home port. A ship's master has similar charge of the ship and its affairs while prosecuting its voyage. Partners 124 ELEMENTARY LAW. § 208 are mutual agents for one another in all matters per- taining to the conduct of the partnership business. An agent may act generally in some particular busi- ness, in which case he has a liberal discretion, or he may be employed to do a specific thing in a pre- scribed way, in which case he is a special agent. Where the authority under which an agent assumes to act is in writing the court must construe it and determine its extent; where the agency is created by parol or is implied from circumstances it is for the jury to determine whether a given act was or was not authorized by the principal. An authority to do a certain thing carries with it an authority to make use of all the usual and necessary means to effectuate the purpose intended, as where an agent is author- ized to sell property he may receive the money; if he is to settle losses with an insurance company he may arbitrate the claims; if he is to sell a chattel he may warrant it as to quality and soundness — in short, the authority of an agent covers all the settled usages of trade which pertain to the business of his agency. § 208. Where persons dealing with an agent know that his authority is in writing, they are bound by its terms, whether they see fit to examine it or not. If an agent has a written authority, his principal can not, by private or secret instructions to his agent, change its terms so as to affect those who dealwith him. It sometimes happens that the authority is ambiguous in its terms, and the agent has no opportunity to consult his principal. If he misconstrues the au- thority in good faith, his principal is bound by his act. • It is competent for the principal to enlarge the agent's authority by subsequent parol instructions. §209 PARTIES TO CONTRACTS. 125 And if a principal by words or acts induces other- to believe that the agent's authority is greater than is expressed in the terms of the appointment, lie will be bound by the agent's acts to the extent that his conduct has led others to deal with his agent. The authority of the agent is more liberally construed when it is to be gathered from irregular correspond- ence, or the conduct of the parties, than where it is particularly defined by a written instrument pre- pared for the purpose. If an agent acts in .excess of his authority, his act may be ratified by the ac- quiescence of the principal. If by the usages of a bank or a merchant, cashiers or other employes are allowed to indorse paper and do other acts in further- ance of the business in which they are engaged, the principal will be bound. Declarations of an agent concerning the transaction in which he is acting for his principal will be binding on the principal, if made at the time and as a part of the transaction. But after the business is closed, the agent can make no such binding declarations. Factors and ships' masters may in case of urgent need dispose of per- ishable goods, in a way not authorized by the owner. They may also incur liabilities that will create a lien upon the goods and fix a personal responsibility up- on their principal also. § 209. The duties of an agent can not ordinarily be delegated. In making contracts for his principal, he should disclose the fact that he is an agent, other- wise the person who deals with him without a knowl- edge of that fact may treat him as a principal. An agent who takes employment from another contracts for the use of reasonable skill and diligence in con- 126 ELEMENTARY LAW. § 209 ducting the business of his principal, and if loss occurs from the fraud or insolvency of a customer, he will not be liable, if he exercised such skill and diligence. He is chargeable with all profits he may make on investments of his principal's money, and if he fails to account promptly for moneys received, he may be chargeable with interest. The contract of agency may be determined : ( 1 ) By the expiration of the time limited by the employ- ment. (2) Principal may revoke it, except in cases where the agent has an interest in the business. (3) By the agent renouncing the agency. (4) By death, bankruptcy, or insanity of principal. (5) By destruction of subject-matter, as where one is custodian of buildings which are destroyed. CHAPTER XVII. OF PARTICULAR CONTRACTS. § 210. Contracts of sale and exchange. — Having considered the nature of contracts in general, and how and by whom they may be made, we proceed to inquire into the nature of particular contracts, and first of contracts of sale and exchange. Kent says : ("A sale is a contract for the transfer of property > < from one person to another for a valuable considera- tion/) Three thin gs are requisite for its validity: the thing sold, which is the object of the contract, the ^price, and the\consent of the contracting parties." By the Roman law things sold and delivered did not become the property of the buyer until he had paid the seller the price or satisfied him in some way or other, as by procuring some one to be security or by giving a pledge. But if the seller accepted the credit of the buyer the thing then immediately became the property of the buyer. And this is practically the law now in all civilized countries. §211. The things sold _must_ exist. A contract of sale of a dead horse, which the parties think is living, is no sale. So of the sale of a house which had been destroyed, if the house and not the land on which it was built was the principal thing in the minds of the contracting parties. When goods are sold there is an implied warranty that the seller has title. (127) 128 ELEMENTARY LAW. §211 There is no warranty of title to real estate sold unless it is expressed in the conveyance. If one in due form contracts for the sale of real estate, and refuses to convey, the court at the suit of the buyer will compel the seller to convey, if the buyer has per- formed or tendered performance of his part of the contract; or if the buyer elects he may sue the seller for damages. Except in rare cases, as where the contract is for the sale of stock in a corporation, courts will not compel the seller of personal prop- erty to transfer it to the buyer, leaving the buyer to his action for damages. As to the quality of goods sold there is no war- ranty implied, except in cases of sales by sample there is a warranty that the goods sold will be of the same quality as the sample. There may be latent defects in the article unknown to both parties, and in such cases the buyer takes it at his own risk, but if the seller knew of such defects his concealment of them might amount to fraud, which would give the buyer a right to rescind the contract or sue for dam- ages. Where defectej^-q^irty were apparent and each had equal means' of information, there is no fraud, nor will mere statements of opinion as to value made by the seller amount to fraud. If in a sale of several tracts of land or several horses at the same time title fails as to part, the buyer can not be held to the contract unless he waives his right to object. Of course, if there is a total failure of consideration the contract is void. If parties are negotiating by letter for a sale, the party making the offer may revoke it at any time before it §212 OF PARTICULAR CONTRACTS. [29 isaccepted; once accepted, however, it can not be re- voked. § 212. Transferof title.— When does the title to the thing sold pass from the seller and vest in the buyer ? When the terms of the sale are agreed upon and the seller has performed his part of the contract, from that instant the property is at the risk of the buyer. So, when the terms are agreed upon and the buyer pays or tenders the price, he is entitled to possession of the thing purchased. These general rules may be varied by the agreement of the parties, fixing a different method of payment, postponing the time of delivery, etc. If credit is given, the title passes to the buyer without payment, but if in such case the buyer be- comes insolvent after the purchase and before the thing purchased comes to his possession, the seller may reclaim the goods, and defeat the buyer's title by assert- ing what is called the right of stoppage in transitu. § 213. Delivery. — As we have seen in what has been said concerning the statute of frauds, if the value of the chattel sold is fifty dollars or more, and it is not convenient to make prompt delivery, the contract of sale may be made binding b} T a memo- randum or by the payment of part of the purchase- money. And a delivery of a part of the goods sold and an acceptance of them by the buyer will bind the bargain. Even where e arnest mon ey is given, the balance of the purchase-money must be paid be- fore delivery, unless credit is given. Where noth- ing is said as to the time for payment and delivery, they are both to be done at the same time. In all sales where anything remains to be done by the 130 ELEMENTARY LAW. §214 buyer, such as the giving of a note or security for the purchase-money, the property does not vest in the buyer until that condition is performed, unless it is waived by the seller. Delivery to the agaijt of the buyer, or to a carrier for him, is a good delivery, and where no particular mode of carriage is named in the contract, the seller may send the goods by any of the customary modes of transportation. There may be a symbolical delivery of the things sold, as by giving the key of the warehouse which contains them to the buyer. Marking the goods sold with the name of the buyer, or setting them apart by his request, in a place designated by him, may consti- tute a good deliver}^ If n-o _pla ce for delivery is .fixed by the contract, the rule is that they are to be delivered at the place where the contract is made, or where the goods sold are kept for sale. A note pay- able in specific articles, as in wheat or any other com- modity, must be presented for payment at the farm or place of business of the maker of the note. Secret sales of personal property, which is left in the pos- session of the seller, are not absolutely void, but the retaining of possession by the seller is a strong cir- cumstance tending to show that the sale was a sham, especially where the seller is in debt and embarrassed at the time. The federal courts hold that a bill of sale is fraudulent as to third persons, unless possession is given to the buyer. The decisions of the state courts are not all in harmony with this rule. § 214. Interpretation of contracts. — Contracts are to be interpreted according to the manifest intention of the parties, words being taken in their popular sense. In construing a written contract, if the Ian- §215 OF PARTICULAR CONTRACTS. 131 guage is ambiguous, the whole instrument is to be considered with all the circumstances surrounding the parties at the time it was made. If the contract is expressed in such vague and doubtful terms, that the intention of the parties can not be ascertained from reading it, it is void. § 215. Contracts of bailment.-/-Bailment is the delivery of one's personal property to another for a temporary purpose, to be returned to the owner when the purpose is fulfilled. J Some writers give five kinds of bailment, but Story's classification is simpler. He gives three : ( 1 ) Bailment for the benefit of the bailor. (2) For the benefit of the bailee. (3) For the benefit of both. The degree of care to be exer- cised by the bailor depends upon the character of the bailment and the character of the article bailed. A rfl prp. h orrpjvpr of another's property, who is to make no return for the use of it and is a bailee for his own benefit, is held to the exercise of the highest degree of care, or extreme care. One who hires a horse from another is a bailee for the benefit of both parties, and is not required to exercise so high degree of care as a bailee for his own benefit, but the care must be such as a prudent person would exercise with refer- ence to his own property, or what is called ordinary caxe. Where property is left by the owner with another for safe keeping, without paying or agreeing to pay therefor, it is a bailment for the exclusive benefit of the bailor, and only a slig ht deg re e of care is required of the bailee. Of course, one is not bound to become a gratuitous bailee, and a promise to become such is not binding, but if goods are received by a gratui- tous bailee he must care for them according to his 132 ELEMENTARY LAW. § 216 promise. A common carrier is a bailee who is bound to receive goods and deliver them where directed without loss or injury unless prevented by the act of God or the public enemy. A carrier who does not hold himself out to carry for the public, but only occasionally transports goods for hire, is not a com- mon carrier, and is only held to the exercise of ordi- nary care. An innkeeper is a bailee who insures the safety of his guests' goods, just as a common carrier does. A mechanic who receives material to be made into an article, or receives an article needing repairs, is a bailee who is bound to use reasonable diligence in complet- ing the work and restoring the article to the owner. He may, however, demand pay for his work and keep possession of the article until his reasonable charges are paid. A warehouseman is a bailee who can retain possession of property put in his care until his storage charges are paid. A pledgee, or a pawn- broker, is a bailee who holds personal property as security for a debt, and may retain it until the debt is paid or payment tendered. If, after a bailee has received property, a third party claims it, the bailee may refuse to deliver to either until the controversy is settled between the rival claimants, and he may bring his action of interpleader, in which the claim- ants may be required to come into court and try the question of the title or right to possession of the prop- erty in the possession of the bailee. § 216. Common carriers. — The contracts of com- mon carriers relate to persons, as well as personal property, and the subject of their rights and liabili- ties calls for a more extended treatment than could be § 216 OF PARTICULAR CONTRACTS. properly given to it under the head of bailment. Kail- way, steamboat and ship companies, and all other pub- licagencies for transporting goods or persona for hire, are in law common carriers. The contract of a c mon carrier of goods is to receive and promptly trans- port the property entrusted to him, to the place of destination, he being responsible for all loss or dam- age which happens to the goods while in his can'. unless such loss or damage is caused by the act of God or the public enemy. As a carrier of persons, he is held to the highest degree of care for their safety. By holding himself out as a common carrier of passengers, he undertakes to receive all proper persons who present themselves for transportation, and to carry them safely to their destination, upon their paying or tendering to him the customary fare for such service. And if he receives as a passenger one who is to be carried gratuitously, he must ex- ercise the same care for such passenger as if he paid full fare. The same obligation as to care applies to persons whom he receives from other connecting lines of transportation, and to travelers who get upon the wrong railway train by mistake. Carriers are not insurers of the safety of their passengers. If the passenger is injured or killed, through unavoid- able accident, as where injury or death results from defects in machinery or appliances which could nol have been discovered by the exercise of the highesl degree of care, or if the injury or death results from the act of God, as where by a tornado an obstruction is thrown in front of a locomotive engine, the carrier is not liable, unless there is some concurring negli- gence on his part. Ordinarily, a passenger who is 234 ELEMENTARY LAW. § 217 injured by a third person, not in the employ of the carrier, has no claim upon the carrier, but if, through the negligence of the carrier's employes, a dangerous person, as a lunatic or a drunken man, kills or injures a fellow - passenger, the carrier is liable. The carrier has a right to make reasonable rules regulating the conduct of passengers, and if a passenger with notice of these rules violates them and puts himself in a place of danger, and injury re- sults to him on account of his misconduct, he has no claim for damages. § 217. Contracts of partnership.— Partnership, as denned by Kent, "is a contract of two or more per- sons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions. " As we have seen in stating the princi- ples of the contract of agency, each partner is the general agent for all the others, and may bind them by any contract which he may make within the scope of the partnership business. If a member of a firm of dry-goods merchants buys real estate for purposes of speculation in the firm name, it will not bind his copartners, and so of all ventures not within the scope of the firm's business. As between the part- ners themselves they may limit the powers and fix the duties of one another by agreement, and a viola- tion of such agreement resulting in loss to the other partners would make the wrong-doer liable in dam- ages to his copartners. A nominal partner is one who allows his name to be used by the firm, but has no interest in the profits; his liability for the firm's debts, however, is the same as that of the real mem- §218 OF PARTICULAR CONTRACTS. [35 bera of the firm. A silent partner is one who has an interest in the firm which is unknown to the public. He may share in the profits, and he is liable for all the debts of the firm. When a partner n from the firm and wishes to avoid future liability for its debts, he must give actual notice of the fact to all customers of the firm, and notice to the public by printing the same in some newspaper of general circulation in the locality where the business has been conducted. If one holds himself out as a part- ner, and persons deal with the firm on the faith of it, he is held liable to such persons for the firm debts, though he was not a partner in fact. § 218. Formation of partnership. — To form a part- nership it is not necessary that the contract should be in writing, and if there is no agreement to the contrary, the partners are presumed to be equal, and the partnership is presumed to begin at the date of the agreement. Partnership contracts may be made for the carrying on of any lawful business. Ine- quality of skill, industry, ability, or attention to the business will not increase or diminish a partner's share of the profits unless the agreement between the partners makes provision for it, and unless it is so agreed no partner is entitled to anything but hia share of the profits as a compensation for his sit\ -i. >< 3. One may sometimes share in the profits without in- curring liability as a partner, as where a salesman or an agent agrees to take as a compensation for his services a sum equal to a certain per cent, of the profits. § 219. Rights of partners. — Partners can not deal with the partnership property for their individual 136 ELEMENTARY LAW. § 220 benefit to the injury of the creditors of the firm or of their copartners. If one partner has made ad- vances or incurred liabilities for the firm, his claim upon the firm's assets and property will have priority over a chattel mortgage given by another partner to secure his individual debt. § 220. Dissolution of partnership. — A partnership may be dissolved in various ways, as: (1) By the death of one of the partners. Sometimes the arti- cles of partnership provide that the representative of the deceased partner may continue the business, or that the capital of the deceased partner shall remain for a limited time in the firm business. (2) By the transfer of the interest of one partner. (3) By the voluntary withdrawal of a partner from the firm. Though the partnership agreement may fix the duration of the partnership, any partner may dis- solve it by retiring before the expiration of the time. If his conduct in so doing is wrongful and results in loss to his copartners, they may recover damages from him for breach of his contract. (4) Insanity or insolvency of a partner. (5) By the mutual con- sent of the partners. (6) The sale of the whole property invested in the partnership business. (7) The hopeless insolvency of the firm. (8) The oc- currence of some event which makes the business of the partnership illegal. The court may decree a dissolution at any time when the interest of the partners or the firm creditors require it. § 221. The practical effect of the dissolution, from whatever cause, is the same. If the partners can agree upon a method of winding up the business after dissolution, and creditors do not object, it may §222 OF PARTICULAR CONTRACTS. 137 be done in that way. If creditors or any par: objects the court will appoint a receiver, whose duty it will be to sell the assets, pay the creditors and ex- penses of the receivership, and distribute the surplus among the partners according to their respective in- terests. § 222. Where a dissolution results from the death of one of the partners, the surviving partners are clothed by the law with authority to settle the firm's affairs, and the personal representatives of the de- ceased partner can not meddle with the linn's affairs unless there is mismanagement on the part of the surviving partners. Most of the states have statutes providing for the settlement of the partnership busi- ness by surviving partners, requiring them to file inventories in court, to give bond, and to make re- ports of their doings, as in ease of administrators and executors. § 223. Individual and partnership creditors. — Questions arise concerning the conflicting claims of the creditors of the firm and the individual partners to participate in the assets of the partnership, and of the partners individually. The equitable rule is fol- lowed in all the courts, that firm creditors must look first to firm assets, and individual creditors to the assets of the individual members of the firm. If there is a surplus of the firm assets after paying firm creditors, and a deficiency of individual assets to pay individual creditors, these creditors may re- sort to the share of the surplus which would be go- ing to the partner against whom they hold unsatis- fied claims; so may firm creditors, after exhausting 138 ELEMENTARY LAW. § 224 firm assets, resort to what may remain of individual assets after the discharge of individual debts. § 224. Rights of partners after dissolution. — The dissolution of the firm puts an end to the power of the partners to bind their copartners to any new en- gagements, except so far as it may be necessary or proper in closing up the firm's business. Where one partner retires and the remaining partners assume the firm debts, the retiring partner may be held by the creditors, but if he is compelled to pay he would have the same rights against his former partners that a surety who had paid a debt would have against his principal. § 225. Limited partnership. — We have been speak- ing of general partnerships, in which each and all of the partners are individually liable for all the debts of the firm. Limited partnerships are creatures of statutory law. They are partnerships in which the pecuniary responsibility of some of the partners is limited to a fixed sum. Persons wishing to embark their means in such ventures are required to comply strictly with the provisions of the law authorizing their formation. § 226. Good-will. — The good-will of the partner- ship goes to the surviving partners in case of dis- solution by death, and where one partner disposes of his interest to his copartners, his interest in the good-will goes with it. CHAPTER XVIII. NEGOTIABLE INSTRUMENTS. Contracts in the form of bills of exchange and promissory notes will now be considered. ' §227. Definitions. — The old definition of a bill of exchange, which is approved by Kent, is as follows: A bill of exchange is a written order or request by one person to another, for the payment of money at a specified time, absolutely and at all events. Story defines a promissory note as : A written engagement by one person to pay an- other therein named absolutely and unconditionally a certain sum of money at a time specified therein. y § 228. Origin of law merchant. — Bills of exchange which were first used by the bankers and merchants of Florence and Venice, to facilitate the transfer of credits between distant points, came to England through France early in the fourteenth century. Ne- gotiable notes did not come into use in England un- til about two hundred years ago. Embarrassments arose in the application of the common law of Eng- land to these forms of contract, and it was after a long struggle that the courts engrafted upon the com- mon law the law merchant, by which the parties to bills and notes are put upon a footing entirely differ- ent from that of parties to other contracts. Promissory notes are negotiable or non-negotiable, according to the laws of the various states where they are made or are to be paid. (139) 140 ^ELEMENTARY LAW. § 220 Some statutes require that the note, to be negoti- able according to the law merchant, must be payable to the order of the payee; some that it must be pay- able to his order and at a bank of discount and deposit. Some authorities hold that a promissory note is negotiable, without the phrases "or order" or " to the order." Notes payable to bearer are ne- gotiable by delivery. § 229. Foreign and inland bills. — A foreign bill of exchange is one that is drawn in one state or country and payable in another, and the several states of the Union are foreign to one another in this respect. An inland bill of exchange is one that is drawn and payable in the same state or country. § 230. The parties to a bill of exchange may be the drawer, who is the maker; the drawee, the person who is requested to pay it; the payee, to whom by the terms of the bill it is to be paid. We give a simple form of a bill with the three parties named : $500.00. New York, May 1, 1895. At sight pay John Jones (payee) or order five hun- dred dollars, value received, and charge same to account of John Smith (drawer). To Richard Roe (drawee), Philadelphia. § 231. Indorsement. — If John Jones, the payee, wishes to transfer the bill he does so by simply writ- ing his name on the back of it and delivering it to the person to whom he transfers it, and this new party, so long as he keeps the paper, is the indorsee or holder. If he in turn wishes to transfer it, he §232 NEGOTIABLE INSTRUMENTS. ]4l writes his name on the back and gives it to the pur- son to whom he transfers it, in which case he loses his character as indorsee and holder and becomes an indorser, and the person to whom he transfers the paper becomes the indorsee and holder. § 232. Duty of the holder.— It is the duty of the holder of the bill, whether he be payee or indorsee, to promptly present it to the drawee for payment, if it is payable at " sight," or to present it to him for acceptance if it is a time bill, that is, payable ar a future date. If the bill is accepted the drawee evi- dences his acceptance by writing across the fact of the bill the word " accepted,'' and signing his name under it. If when presented to the drawee he re- fuses to pay or accept the bill, it becomes the duty of the holder to have it protested; that is done by a notary public who presents it for payment or accept- ance at the place where it is payable in business hours, and upon acceptance or payment not being made, he protests the bill and makes a certificate, attested D)' his signature and notarial seal, showing the fact of presentment and non-acceptance or non-payment, as the case maybe. Notice in writing of protest must be promptly given by the notary to the drawers and indorsers, if any, in order to fix their liability to the holder. If the bill is not presented in time, and if notice of non-acceptance or non-payment and protest is not promptly given, the drawer and in- dorsers are discharged from liability, unless by the terms of the bill presentment, demand and protest are waived. § 233. Special indorsements. — The form of in- dorsement, and the rights and liabilities of indorsers 142 ELEMENTARY LAW. § 234 and indorsees, are not alwa} r s the same. By an in- dorsement " without recourse," the indorser engages that the instrument is the valid obligation of those whose names are upon it and that he has the right to indorse it, but does not warrant the solvency of any of the parties to the bill. By an indorsement in blank the indorser makes himself liable to any one who comes into possession of the bill honestly. If his indorsement is special as to a particular per- son, he is only liable to the person named or to the indorsee of the person named and those claiming through him. § 234. Signatures and date. — A note or bill of ex- change must be in writing and signed ; the initials or a mark will be a good signature, and it is imma- terial where the signature is placed; the party making it will be bound according to his intent. A date is not essential, and if there is a blank for a date any holder in good faith may fill it. Until a note is delivered it has no force. Indorsements are pre- sumed to be of the date of the note, but the real date is matter for proof. § 235. Certainty. — We have seen that the promise to pay must be without condition, and if conditions are annexed the paper is not negotiable by the law merchant. It must be for the payment in money. A promise to pay in grain or any other specific article is not a negotiable note. The time of payment must also be certain; it may be fixed by any event which is sure to occur, as the event of one's death; if payable on demand it is due instantly. So it is nec- essary that the place of payment should be certain. If no place is named then the place where the maker or §236 NEGOTIABLE INSTRUMEN1 143 drawee resides is presumed to be meant. The amount to be paid must be certain. If the amount i- pressed in figures and in writing and they differ, the writing controls. , *4 § 230. Surety, guarantor, indorser and assignor. — In addition to the original parties to negotiable in- struments, the following may become liable thereon, viz., surety, indorser, guarantor, or assignor. The rights and obligations of each are different. A surety is generally a co-maker, and his promise is to meet an obligation which becomes his own the moment the principal fails to meet it. A surety is liable as much as the principal is liable, and he may be sued as a promisor. He is entitled, how- ever, to have the principal's property first exhausted for payment of the obligation. A guarantor's promise is to pay the debt of the principal, if by the exercise of due diligence the debt can not be made out of the principal. He is entitled to notice of the non-payment within a reas- onable time, but is not discharged from liability by delay in the notice, unless actually damaged thereby. An indorser contracts to be directly liable, but only upon condition of due presentment of the bill or note on the exact day of its maturity, and due notice of its dishonor. Failure in either particular dis- charges him absolutely from liability, whether he be damaged or not by the failure. An assignor of a negotiable instrument is one who passes the title by mere delivery, without writing his name upon it. This may happen when the instru- ment is payable to bearer or indorsed in blank. The assignor does not promise that the obligation shall be 144 ELEMENTARY LAW. § 237 paid, but lie warrants that he knows no facts that will prove the instrument to be valueless. In addition to the distinctive obligation of each, the indorser and the assignor each warrants : (1) That the instrument is genuine, (2) that it is valid, (3) that prior parties are competent, and (4) that he himself has lawful title to the instrument and right to transfer it. § 237. Law of the place. — Where a bill or note is made in one place and is payable in another, the law of the place of payment fixes the rights of the par- ties. Where money payable in one state is secured by a mortgage upon land in another, it is difficult to determine what law controls. Where it is attempted to enforce payment by foreclosure, the general rule, in the absence of statutes to the contrary, is that the rights of the parties as to the rate of interest are ascertained by reference to the law of the place of payment, but that in all that relates to the enforce- ment of the remedy, the law of the place where the mortgaged property is situated will control. § 238. Agents. — In the execution of notes by an agent, he should take care that he does not bind himself personally, and to avoid this he should always sign the name of his principal, and append to that his own name, with letters or words desig- nating himself as agent. So partners giving notes in the firm's business should always sign by the firm name. If a note, negotiable in form, is signed and delivered to another, with the amount and date, names of drawee, payee, etc., left blank, the person to whom it is delivered is the agent of the maker to fill the blanks. §239 NEGOTIABLE INSTRUMENTS. 145 § 239. Capacity of parties. — As to the capacity of persons to make and indorse notes and bills, and the effect of the various forms of legal disability, as in- fancy, insanity and the like, upon the rights of the parties, it is enough to say that the general rules governing contracts heretofore stated will apply. § 240. Consideration. — As between the original parties to a note or bill, some legal consideration is necessary to support it, but the obligation assumed by an indorser for the accommodation of one of the parties, by its very nature has no consideration to support it. If the accommodation indorser is obliged to take up or pay the note or bill, he has a right of action against all prior parties who are liable on the paper. § 241. Purchase for value without notice. — It is a distinctive quality of a negotiable instrument that if before it is due it comes into the hands of an in- nocent purchaser for value, he takes it free from any defenses or equities that may exist between prior holders or the original parties, respecting the title, the amount or the consideration. Though the in- strument be stolen, though the maker may have claims against some prior holder, though the instru- ment be procured by fraud, be paid, or have no con- sideration, or involve usury — such defects perish with the transfer, so far as the innocent holder is concerned. Other defenses, such as forgery, altera- tion, infancy, etc., may be made by the party claim- ing the defense against even an innocent purchaser. § 242. Bills of lading-. — A bill of lading is a writ- ten instrument acknowledging receipt of goods and agreeing to transport them to a specified place and 10 146 ELEMENTARY LAW. §242 deliver them to the consignee or his assigns. It is a receipt and a contract, having the usual attributes thereof. It is at the same time the representative of the goods, and as such has certain qualities of nego- tiability that make it proper to consider them in connection with the subject of bills and notes. The holder of a bill of lading may by indorsing and de- livering the instrument to another pass to the trans- feree the title to the goods represented, as fully as though the goods themselves were delivered. The transferee, if in good faith, takes the title free from any claims against the indorser, such as the right of stoppage in transitu or the right to rescind for fraud. But he takes only such title as the indorser actually had, so that if the bill of lading were stolen, or if the original shipper had no title to the goods, the in- dorsee could acquire none. CHAPTER XIX. CONTRACTS OF INSURANCE. § 243. Definition. — Insurance is a contract where- by one party agrees to indemnify another in case he shall suffer loss in respect of a specified subject by a specified peril. The party who insures is called the underwriter; the party indemnified is called the insured. When the contract is in writing it is called the policy. Unless prohibited by a law a verbal con- tract of insurance is valid. And so, after the execu- tion and delivery of the policy its terms may be modified by verbal agreement. Insurance contracts may be made to pay a certain sum in case of death or accidental injury of some person, or of death or accidental injury to live stock; in case of loss of property by fire or tornado; in case of loss of ships or their cargoes by perils of the sea; in case of failure of title to property; in case of the temporary illness of the insured. These are all forms of indemnity contracts which may be properly called insurance contracts. § 244. Contract, how made. — The form of the con- tract is immaterial, unless there is something in the law or the charter of the company making it which requires it to be in a specified form. When the pol- icy is issued by the company, and accepted by the insured, the rights and liabilities of the parties are (147) 248 ELEMENTARY LAW. § 245 fixed by its terms. If all the terms of the contract have been agreed upon, and it only remains for the company to issue the policy, the failure to issue it will not invalidate the contract. When the contract takes effect is a question which is to be determined by reference to the rules already stated, under the head of contracts in general. Where the agent of the company agrees with the insured upon the terms of the contract, but with the express understanding that it is not to take effect until the company has ap- proved it, no valid contract exists until such ap- proval. § 245. How interpreted.— When made in writing, the interpretation of the contract is for the court, the object being always to arrive at the real in- tention of the parties. It can not be denied, how- ever, that the rules of interpretation adopted in the courts of the country in insurance cases tend to the conclusion that insurance companies are not favor- ites of the law. Stipulations in a policy are con- strued liberally towards the insured, and strictly against the insurer. Even where a stipulation in a policy is violated by the insured, it will not prevent a recovery on the policy, unless it is expressly pro- vided that such violations shall work a forfeiture. § 246. Warranty and representation. — Questions arise whether certain stipulations in the policy amount to a warranty or a representation merely. A war- ranty is a statement or stipulation inserted in or referred to in and made a part of the policy, upon the truth or performance of which on the part of the insured the validity of the contract de- pends. A representation is an incidental statement §247 CONTRACTS OF INSURAE 149 made by the insured with regard to some feature of the risk upon the faitli cf which the contract is entered into. It is said to be no part of the contract, and that it need not be literally, though it must be substantially, true. So it is evidently a matter of difficulty in many cases to distinguish be- tween the two. Intentional concealment of material facts will avoid a policy unless the company knew of their existence. Material facts are such facts only as may be fairly presumed to have been material in the belief of the insured. § 247. Payment of premiums. — The premium is the consideration for the insurance, and must be paid by the insured or by some one for him. Where the policy provides that the payment of the first premium must be made when the policy is delivered, it does not take effect, though delivered, until payment is made. Where a note is given and accepted for the premium, a failure to pay the note when due will not avoid tin' policy unless it is expressly stipulated that such shall be its effect. The manner of payment is immaterial if it is accepted by the company or its agent, and is in accordance with the usual course of business of the agent, known to the company. In companies where the insured is entitled to have his dividends credited as part payment of his premiums, it is the duty of the company to give him timely no- tice of the amount in cash which it is necessary for him to pay, the reason being that the com- pany, having exclusive knowledge of the facts, is bound to make them known. Premiums falling due on Sunday maybe paid on the following Monday. § 248. Waiver of payment.— An agent having au- thority to receive the premium o.ay agree with the 150 ELEMENTARY LAW. § 240 insured to waive prompt payment, the agent becom- ing debtor to the company for the amount, and such waiver will bind the company. And even where the policy makes a failure to make prompt payment a cause of forfeiture, if the company has been in the habit of granting indulgence to the insured and accepting payments after due, it can not insist upon a forfeiture for a failure to make prompt payment. § 249. Insurable interest.— It is essential to a valid policy that the insured should have an insur- able interest in the life, or the thing insured, and generally speaking, whatever has an appreciable pe- cuniary value, and is subject to loss or deterioration, or of which one may be deprived, or which he may fail to realize, whereby his pecuniary interest is or may be prejudiced, may properly constitute the sub- ject-matter of insurance, the object of insurance be- ing to protect men against uncertain events which may in any wise be of disadvantage to them. § 250. Increase of risk. — The doing of anything by the insured, or with his assent, which increases the risk of the company, will avoid the policy, as the removal of one whose life is insured to a place pro- hibited by the policy, or the change of a business carried on upon the insured property to another busi- ness which increases the danger of loss by fire. It is the duty of the insured who contemplates a change of that character to notify the company and procure its assent to the proposed change. In making an- swer to questions as to the previous serious illness of the applicant for life insurance, if the applicant in good faith believes his answer to be true, it will not avoid the policy, though his answer may be errone- ous. CHAPTER XX. CONSIDERATION. §251. Definition. — Consideration is something esteemed in law to be of value, in exchange for which the promise in a contract is made. The law estimates values in money, and the consideration must be something to which a jury can attach a pe- cuniary value. Natural love and affection named in a deed as a consideration will make the conveyance good, but a promise to convey, or a promise to pay money in consideration of natural love and affection, is not binding. As between the original parties to a negotiable promissory note, or bill of exchange, a consideration is necessary, but if the note or bill is purchased in good faith, before it is due, by a third person, he can enforce payment, although it was originally given without consideration. A good consideration is blood, natural affection and the like. A valuable consideration is money, or some commodity, or marriage. One who takes a deed based upon a good considera- tion only, takes the property subject to the rights of creditors who may be injured thereby. A man may give away his property if he retains sufficient to pay his existing debts. The maxim is that "a man must be just before he is generous." A mere moral obligation imposed by a sense of (151) 152 ELEMENTARY LAW. § 252 duty will not make a promise binding. A promise to pay money to another, prompted by motives of gratitude for past favors, is not binding. But a moral obligation, supported by a past legal obliga- tion, will support a promise and make it binding. If a debt is barred by the statute of limitations, or by a discharge in bankruptcy, and the debtor makes a new promise to pay it, it is a good promise for the reason that though there is no present legal obliga- tion to pay there is a moral obligation, and when the moral obligation rests upon what was a previous legal obligation, it is a valuable consideration and will support a promise. § 252. Adequacy of consideration. — The adequacy of consideration is something that courts will not in- quire into except in cases of imposition or fraud. Parties capable of contracting are left to make their own bargains, and their mistaken estimates of values of things purchased or received will not be corrected. Where the inadequacy is so gross as to shock the moral sense it will be sufficient proof of fraud. § 253. Prior obligation as consideration. — Where the law has fixed the value of services to be per- formed, as by naming fees for official services, a promise to pay more is not binding. So, where one is already bound by a previous agreement, or by law to do a particular thing, the doing of the act is no con- sideration for a binding promise. If one owes a sum of money and pays part, and his creditor agrees to release him from the payment of the balance, it is not binding. But if a debtor gives his creditor some article not money, though of less value than the whole amount, and it is accepted for the whole debt, §254 CONSIDERATION. 153 it is a good discharge; and so if a debtor procures a friend to pa} r his creditor a sum less than the whole debt, such payment is a good consideration to sup- port a promise to release the remainder. And a payment of a sum less than the whole debt before it is due is a good consideration to support a release. § 254. Promise to release debtor. — Where a man is embarrassed and his creditors mutually agree to take a portion of their respective debts in discharge of all, it is binding, the consideration for the dis- charge being the mutual promises of the creditors and not the amounts of money they receive. § 255. Disputed claims. — Where there is a dispute as to the amount due, and the creditor agrees to ac- cept less than what may really be due in discharge of the whole, it is good. Where a man makes a claim against another in good faith and threatens to bring suit, and money is agreed to be paid if he will not sue, the agreement is binding; but if the threat is merely to extort blackmail, and the claimant does not in good faith believe he has a just claim, such agree- ment can not be enforced. The consideration prom- ised must be something beneficial to the promisee or to a third person, or a detriment to the promisor. A simple agreement to extend the time of payment is not binding, unless extra interest is agreed to be paid, or interest is paid in advance or something of value given. So, if one agrees to carry goods for nothing it is not binding, but if he receives the goods after making such a promise, he must carry and deliver them safely. Communicating knowledge, and the advice of a lawver or physician arc sufficient considerations. § 25G. Impossible and illegal consideration.— An 154 ELEMENTARY LAW. §257 agreement to do a thing absolutely impossible to be done is no consideration, nor will an agreement based upon an illegal or immoral consideration be binding. Where, at the time of the contract, the thing contracted for is not in existence, there is no consideration , as when two in good faith bargain for the purchase and sale of a horse, supposing it to be alive, when in fact at the time of the agreement it is dead. § 257. Executed and executory considerations. — The consideration is executed where the thing agreed for is done or given, and it is executory where, the thing promised remains to be given or done. If one is employed to labor for a sum certain, the con- sideration is executed on his part when the labor is performed, and it is executory on the part of his em- ployer until payment is made. §258. Past consideration. — The consideration must consist of a present or future act; a past act can not serve as a consideration for a promise. This rule operates very harshly in some cases, as where a son of full age fell sick and was cared for by stran- gers, who paid the expenses of his sickness, it was held that a subsequent promise by the father to reim- burse them could not be enforced . It is now established law that the past performance of services constitutes no consideration even for an express promise, unless they were performed under the express or implied request of the defendant, or unless they were done in performance of some duty resting on him. § 259 . Failure and want of consideration. — A con- tract may be based on a consideration apparently good , but which fails altogether, in which eventthe contract §259 CONSIDERATIO 155 will not be enforced. As where a promissory note is given for a horse warranted to be sound, which turns out to have been diseased and worthless at the time, the maker of the note is absolved from his lia- bility to pay it, unless it is a negotiable note in the hands of one who purchased it in good faith before it was due. Even where money is paid on a contract supposed to be valid, if the consideration fails the money may be recovered back. If there is no war- ranty of the thing sold, or if the defects complained of were apparent, failure of consideration can not be pleaded. Ordinarily, in a sale of personal property the seller warrants the title, but if at the sale it is clearly stated or understood that the seller is simply disposing of his interest in the thing sold, and the title fails, it is no failure of consideration, for the buyers gets all he bargained for. The subsequent depreciation in value of the thing sold, as when by new inventions a patent is made worthless, is not in law a failure of consideration. If a contract is based upon a consideration in part legal and in part illegal, it will be enforced as to the legal part if it can be separated, but if no sep- aration can be made, the whole contract fails for want of consideration. A party to a contract, having full knowledge of the facts, may waive his right to plead a want or failure of consideration, as he may waive his right to plead the statute of limitations, his discharge in bank- ruptcy, his infancy or the like. CHAPTER XXI. STATUTE OF FRAUDS. § 260. History of the statute. — To prevent frauds and perjuries, a statute was enacted in the reign of Charles II in England, in the year 1677, providing that no action should be brought to enforce certain agreements, "unless the agreement upon which such action shall be brought, or some note or mem- orandum thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized." It is to be noticed that by this statute parties are not prohibited from making such agreements by parol, but the performance of such parol agreements is purely voluntary. It is simply declared that the courts will not aid in enforcing them. There is some curious history as to who is entitled to the credit of suggest- ing or formulating this law. Some give it to Lord Hale, but the better opinion is that Lord Nottingham is its author. That it is regarded as a good law in principle is shown by the fact that its most impor- tant provisions have been re-enacted in all English- speaking countries, especially the fourth and seven- teenth sections of the statute. § 261. Provisions of the statute. — The fourth sec- tion provides that no action shall be brought whereby to charge : (156) § 202 STATUTE OF FRA I ' DS. ] 57 (1) Any executor or administrator upon any sp< - cial promise to answer damages out of his own es- tate. (2) Or to charge the defendant upon any specia. promise to answer for the debt, default or miscarriage of another person. (3) Or to charge any person upon any agreement made upon consideration of marriage. (4) Or upon any contract or sale of lands, tene- ments, or hereditaments, or any interest in or con- cerning them. (5) Or upon any agreement that is not to be performed within the space of one year from the making thereof. Unless the agreement or some memorandum thereof in writing should be signed as above required. The seventeenth section provides that no contract for the sale of any goods, wares and merchandise for the price of ten pounds sterling (fifty dollars) or upwards shall be allowed to be good, except the buyer shall accept part of the goods so sold and ac- tually receive the same, or give something in earnest to bind the bargain, or in part payment, unless some note or memorandum of the bargain in writing be made and signed, as required in the fourth section. Let us consider the contracts affected by the stat- ute, in the order in which they are mentioned in the statute itself. § 262. Promises of executors and administrators. — An executor or an administrator coming into pos- session of the estate of the testator or decedent, is only liable to pay the debts of the estate in the order required by law and so far as the assets of the estate 158 ELEMENTARY LAW. § 263 properly administered will enable him to discharge such debts. This legal obligation and no other rests upon him, unless he sees fit to assume and incur a personal liability for the debts of the estate. If he does this in a writing, signed by him or his agent, he is bound, but no oral agreement on his part can create such a liability. The statute applies only to debts existing against the estate. If the executor agrees with an heir to pay a sum of money if he will abstain from bringing suit to contest the will or the probate of it, this is a personal undertaking of his own, and one which does not fall within the statute. § 263. Debt, default and miscarriage.— What is meant by the terms "debt," "default" and "mis- carriage" of another, for which one shall not be answerable upon his oral promise ? It may be said, generally, that under these terms are included every form of liability or obligation which rests upon one, whether it grows out of tort or contract, or from whatever cause. There are three persons to be con- sidered : ( 1 ) The person who owes the debt or has incurred the liability. (2) The person to whom the debt is owing or who is entitled to enforce the exist- ing liability. (3) The stranger to the transaction, against whom no liability exists, and whom it is sought to charge with the liability of the debtor or wrong-doer. § 264. Original or collateral obligation.— Whether an oral promise is enforceable or not under this clause of the statute depends generally upon the question whether the promise is an original obliga- tion or is collateral to some other's obligation. If the former, it would be valid ; if the latter, it would be barred. For example : If A promises to pay for § 265 STATUTE OF FB H7DS. 159 goods furnished to B, who makes no promise, it is evident thai A's promise is the only and original ob- ligation, and that it is not within the statute of frauds. But if B promises to pay for the goods, and A promises to pay in case B fails to do so, A.'s promise is collateral, and an action on it is barred by the statute. § 265. Agreements in consideration of marriage. — It is hardly necessary to say that this clause of the statute does not refer to the mutual promises of marriage. It has sole reference to promises collateral to the marriage which are made upon condition that the marriage shall take place, as where a man agrees to make a settlement or pay a sum of money if a marriage is consummated. An antenuptial agree- ment by which, before marriage, a woman agrees to relinquish her marital rights in her husband's prop- erty, in consideration of the payment to her of a sum certain, is within the statute and must be in writing to make it binding. Nor is the subsequent marriage of the parties such a part performance of the contract as will take the contract out of the statute. § 266. Contracts for sale of lands.— The word land as it is used in this statute has been held to in- clude not only the land itself, but every claim of a permanent right to hold lands of another for a par- ticular purpose, and to enter upon them at all times without his consent. A mere verbal license to enter upon land for a temporary purpose is revocable. Dif- ficulties arise as to what things annexed to land are covered by the term as it is used in the statute. A ripened crop ready to be gathered, and a sale of any growing produce, raised by labor and expense, in actual existence at the time of the contract, may be 160 ELEMENTARY LAW. § 267 the subject of a binding parol contract. And it has even been held that where timber or other produce of land, or any other thing annexed to the land is spe- cifically sold, whether the buyer or seller is to sever it, under a special license to enter for that purpose, it is a sale of goods and not a sale of an interest in land. By statutes of some of the states, it is enacted that leases of land for short terms are valid, though resting in parol. § 267. Agreements not to be performed within a year. — The agreement must be impossible of per- formance within the year, and the parties to it must contemplate that it shall not be performed within the year. The mere fact that it may not be, or is not in fact performed within the year, does not bring it within the statute. Illustrating these rules, it has been held that an agreement to do something upon the happening of a marriage, or upon the return of a ship, or to pay a certain sum of money from time to time during the life of another, is not within the stat- ute. But if it can not be fully performed within the year, the fact that it may be terminated, or ihat further performance may be excused, is not sufficient to take it out of the statute. In most of the states it is held that the statute applies only to contracts which are not to be performed on either side within a year; and that if the parol contract is to be fully performed on one side within the year, it will be good under the statute of frauds even though the other side can not be performed within the year. Other states hold the contrary doctrine. § 268. The note or memorandum. — The statute requires that to make any of the contracts or agree- §208 STATUTE OF FRAUDS. 161 ments just enumerated as within the fourth section of the statute of frauds enforceable, the agreement, or some note or memorandum thereof, shall be in writ- ing and signed by, or by the authority of, the person sought to be charged thereby. It becomes important to know what sort of a note or memorandum is lure meant. The statute relates to a parol contract, the evidence of which must be supplied by a written note or memorandum. This memorandum may be gath- ered from correspondence or embodied in a single letter, and it is not necessary that it be made at the time of the agreement. It is rather the acknowl- edgment of the fact that a contract has been made than a written contract itself, which is an instrument entered into and signed at the time it is made. The memorandum may be made by a broker who is the agent of both parties; it may be made by an auctioneer who is agent for buyer and seller; it may be made by one of the parties and not delivered to the other, or the fact that it has been made may be unknown to the party who seeks to enforce it until long after it has been made; it may be made at any time before the action is commenced. It must show agreement on the part of the party sought t<> be charged; it must show clearly the subject-matter and all the terms of the agreement, the parties to it, and some courts hold that it must show what the consid- eration is. Some of the states in their laws adopting the provisions of the statute expressly state either that the consideration must appear in the memorandum or that it is unnecessary. 11 162 ELEMENTARY LAW. § 269 § 269. Signature to memorandum. — The signing may be by the party sought to be charged, or by his authorized agent. A mark of an illiterate man is a sufficient signing, or the initials of a name. The place of the signature is unimportant. If the memoran- dum was written by the party or his agent, and his name appears in the body of it, it is sufficient. § 270. Sale of goods, wares and merchandise. — Oral contracts for the sale of goods worth fifty dollars and over can not be enforced, unless, (1) the buyer receives part of the goods, (2) the buyer gives some- thing in earnest to bind the bargain. This section does not apply to contracts for labor, nor where one goes to a mechanic and orders the manufacture of an article. On this point there is a conflict in the decisions. It is held by some courts that if the buyer gives an order for the manufacture of an article which is usually kept in stock it is within the statute, but that if he orders some- thing of a particular pattern to be made to suit his own fancy the statute does not apply, and this ap- pears to be the weight of authority. Sales at auction are within the statute, and it is the duty of the auc- tioneer when he announces a sale to make a memo- randum of it or to deliver the goods. In order to make a delivery of a part of the goods effective, the delivery must be complete and be accepted by the buyer; so where it is desired to bind the bargain by a delivery of something in earnest, the payment must be made if in money, or the article actually delivered if it is something else than money, and this may be done at any time before suit, unless the § 270 STATUTE OF FRAUDS. 1G3 statute requires it to be done at the time the bargain is made. As to the form of the memorandum necessary to bind a bargain for sale of goods, what has already been said of the requisites of the memorandum to bind agreements for the sale of lands will apply. CHAPTER XXII. CORPORATIONS. § 271. Definition. — A corporation is a body con- sisting of one or more persons, established by or un- der the authority of the law, for certain specific pur- poses, with the capacity of succession (either per- petual or for a limited period) and other special privileges not possessed by individuals, yet acting in many respects as an individual. Corporations are either sole, consisting of one member at a time, or aggregate, consisting of more than one member. A public corporation is created for the purpose of carry- ing on some public business, such as towns, cities, counties. A private corporation is formed by the voluntary act of individuals for their own conven- ience or profit, such as banking companies, turn- pike and railway companies. These are in a sense public, for they render service to the public, but they are distinguished from public corporations by the fact that the latter are founded by the government for public purposes alone. There is another class designated as quasi corporations, which have some of the attributes of ordinary corporations, as boards of school commissioners, boards of county commissioners, boards for the equalization and as- sessment of taxes, boards of supervision of poor- houses, etc. Joint stock companies, formed for the (164) §272 CORPORATION.-. 165 purpose of carrying on commercial or manufacturing enterprises, which have all the features of a partner- ship, except that there is a substitution of a stock- holder's liability for the ordinary liability of part- ners, are quasi corporations. § 272. Powers of corporations. — The powers of a corporation are restricted to the limits prescribed by the law under or by which it is created. (1) A cor- poration should have a name by which to make con- tracts, to take, hold and dispose of property, and by which to sue and be sued. (2) It should have a cor- porate seal. (3) It should have a fixed place of busi- ness for the general management of its affairs. (4) It may make its own by-laws, and appoint and re- move its agents and officers. § 273. Organization of corporations. — The power to create corporations is vested in the legislature by the constitution. The practice and power of creating corporations by special legislative enactments has fallen into disuse, or been abolished in most of the states. General laws are passed, under which cor- porations are organized by the voluntary agreement of individuals. The manner in which corporations are organized is determined by the statutes of each state. Ordinarily articles of incorporation signed and acknowledged by the requisite number of persons are filed in some public office. These articles give the name of the corporation, state the object of its formation, designate the place where it proposes to carry on its business, fix the amount of capital stock and the denomination of the shares of stock, the names and residences of the stockholders, and the names of the directors who are to manage the af- 166 ELEMENTARY LAW. § 274 fairs of the corporation for the first year. When these articles, so prepared, signed and acknowledged, are lodged in the proper office, the corporation be- gins its existence. If any of its members assume to contract or act as a corporation before these requi- site formalities have been complied with, such acts are not corporate acts, though they may bind the in- dividuals who have so acted. A corporation is con- sidered to be a citizen of the state under whose laws it is created, and if it wishes to exercise corporate powers in another state, it must submit to and obey such laws and restrictions as may be imposed by the laws of the state in which it does business. § 274. The charter. — The charter, or law under which a corporation is organized, is the measure of its powers. In construing such charters and laws the courts have extended the powers of corporations to all such matters as are essential to preserve their existence and to accomplish the purposes of their creation. The enumeration of specific powers im- plies the exclusion of others. § 275. Vested rights of. — It is a settled rule of law that when a private corporation is once formed according to law, it has the right to the free use of all the franchises, powers and privileges conferred upon it by the laws in force when it came into exist- ence, and that the provisions of the constitution of the United States prohibiting all legislation which impairs the obligation of contracts protects it in the enjoyment of these rights. The assertion and enforcement of this rule, which imposed severe re- strictions upon the legislative power, has led to a radical change in the legislation of the various states, § 276 CORPORATIONS. K37 and now it is the practice to insert in all laws author- izing the formation of corporations a clause reserving the right of the legislature to amend, alter or repeal such laws. § 27G. Dissolution of. — The existence of a corpo- ration maybe determined: (1) By the expiration of the time limited for its duration. (2) By valid laws repealing the laws under which it was organ- ized. (3) By voluntary dissolution or the abandon- ment of the purpose for which it was organized. (4) By a decree of forfeiture at the suit of the state for misuser or non-user of its powers and privileges. CHAPTER XXIII. SECURITY OF THE PERSON. § 277. The right to life. — Every one has a natural right to the security of his person and, stated gener- ally, may treat any interference with his person as a wrong. The right to life is the first and greatest of all rights. It exists without law and is an in- alienable right. No one can lawfully consent to the taking of his life by another, and no one can lawfully destroy his own life. It seems superfluous to say that whoever takes the life of another person is guilty of a legal wrong. But it is stated, for the purpose of indicating certain exceptions, the reasons for which are clear and well settled. § 278. When life may be lawfully taken.— The sovereign power may lawfully take the life of a per- son, by due process of law, as a punishment for crime. In time of war or under martial law, it is justifi- able or excusable to take the life: (1) Of enemies underarms. (2) Of non-combatants, who by their fault, expose themselves to the dangers of the con- flict. (3) Of. any persons who are guilty of grave offenses against the rules of war, such as spies, sleeping sentinels, deserters. Where an alternative exists, as between two lives having equal rights, it being impossible that both (168) §279 SECURITY OF THE PERSON. ]•'.• should live and it being necessary to make a choice in order to save either, it will be excusable to take one or the other life. Where for self-protection or for the due enforce- ment of law it becomes necessary to take life, such taking is justifiable. The unintentional taking of life will be deemed an inevitable accident and not a legal wrong, unless the act which results in such loss of life be for some other reason an unlawful act. § 279. Remedies. — It is obvious, from the nature of the case, that for an unlawful taking of life there can be no redress in favor of the person whose life is taken. And no preventive remedy is given that is effective. It is true, there is punishment by crimi- nal prosecution, but that is deterrent only. There is also the proceeding by surety of the peace, but one who is not deterred by fear of indictment will have little restraint through a bond. The law does, how- ever, give civil redress for the taking of life, in favor of persons standing in certain relations toward the de- ceased. § 280. Recovery for injuries causing death. — At common law there was no right of action in any one for the death of a human being. It was deemed re- pugnant to the law to attempt any estimate in a pe- cuniary way of the value of human life. For loss suffered between the date of. an injury and the death, the person injured had a right of action, and any one entitled to his services might sue. But for the loss by the death there was no remedy. To supply this defeel in the law, statutes have been passed. In this country they are substantially the same as 170 ELEMENTARY LAW. §280 the English statute known as Lord Campbell's act. It is provided that whenever the death of a human being is caused by the wrongful act or default of an- other, the personal representative may maintain an action against the wrong-doer, and the damages re- covered shall inure to certain persons having an in- terest in the life. While the various statutes do not entirely agree as to who shall be the beneficiaries, it is uniformly the law that unless some one or more persons of the classes named survive the deceased, nothing can be recovered. And the beneficiary must have some pecuniary interest in the life of the deceased, or reasonable expectation of benefit, and the damages recovered can not exceed such in- terest or benefit. The statutes limit the amount re- coverable, in some states to $5,000, in others to $10,000. In some of the states the action must be brought in the name of the guardian or father, if the deceased was a child. CHAPTER XXIV. ASSAULT AND BATTERY. For corporeal injuries less than the taking of human life, the law gives redress to the person in- jured. When the injury is direct and intentional, it is called an assault and battery. It is not essential, in order to constitute a wrong, that the wrong-doer shall have fully carried out his intention, nor that any actual damage shall result. An attempted in- jury may be an assault, and, though there be no damage actually suffered, the law presumes that there was some damage. § 281. Assault defined. — An assault is an attempt with unlawful force to inflict bodily injury upon another, accompanied with real or apparent ability to give effect to the attempt, if not prevented. § 282. The ability and intent to injure.— In a civil suit for assault, if the defendant had actual present ability and intent to injure, he is liable, re- gardless of whether the plaintiff believed there was such ability and intent. And even though the defendant did not have actual present ability, or did not have an intent to injure, he is nevertheless liable, if his conduct was such as reasonably created in plaintiff the belief that such ability and intent ex- isted. However threatening an act would otherwise appear to be, it is not an assault, if from the words (171) 172 ELEMENTARY LAW. §283 or conduct accompanying the act it is apparent that no injury will be done. And mere words or threats do not of themselves constitute an assault. § 283. Battery defined. — Battery is any touching of another person with intent to injure or in an angry, revengeful, rude, insolent or hostile manner, and without his lawful consent. § 284. The intent of the wrong-doer. — For civil liability, it is not essential that there shall have been an actual intent to injure the plaintiff. It is suffi- cient if the act itself was unlawful or if it was in- tended to injure some person and unintentionally injured the plaintiff. The essence of the offense is that the defendant shall have been intentionally guilty of a wrong, and that plaintiff's person shall have been injured thereby. § 285. Consent of the one injured. — If the plaint- iff consented to the defendant's act, the defendant is not liable for assault and battery, unless: (1) The act be a breach of the peace. (2) The plaintiff be legally incapable of giving consent. (3) The consent be obtained by fraud. (4) Force be used in excess of the consent. § 286. Justification for battery. — In time of war, or under martial law, acts that would be justifiable though they result in taking life, will of course be justifiable if they result in any less degree of injury. Upon motives of public policy, wherever the law can not be otherwise adequately enforced, it is justi- fiable to use so much force as is necessary. An officer with authority to arrest may therefore use reasonable force to effect the arrest. For a like reason §287 ASSAULT AND BATTERY. 173 any one, officer or private individual, may use rea- sonable force to prevent a breach of the peace, or, after a felony has been committed, to apprehend the felon. For purposes of correction and punishment a rea- sonable degree of chastisement is justifiable by a parent upon hischild, by a teacher upon the pupil, by a jailer upon his prisoner, and by a shipmaster upon his crew, and under some circumstances upon his passenger. An act that would otherwise be assault and battery may be justifiable where it is necessarily done for the purpose of saving the life, either of the person injured or of another. Whenever the force used upon a justifiable occa- sion is of a degree that is unreasonable or excessive it becomes itself a wrong, and the person so using excessive force becomes liable for the excess, and in some states also loses the right to complain of the violence against him. § 287. Self-defense. — Any one may lawfully use force to protect himself against the unlawful force of others. But only so much force is justifiable as is reasonably necessary for protection. The degree of force that may be lawfully used by way of self-de- fense varies with the nature of the attack. If the person attacked has the belief upon reasonable grounds that his life is in danger, or that he will re- ceive great bodily harm, he will be excused, though he kill his adversary. But out of regard for human life, the law does not permit one to kill his assailant unless there be such belief upon reasonable grounds. One is bound to retreat, if possible, and to confine his defense within reasonable limits. So, one at- 174 ELEMENTARY LAW. §288 tacked by another with his fists, can not ordinarily justify the killing his assailant at once with a knife or other deadly weapon. The law does not, how- ever, require one to retreat when in his own house. His house is said to be his castle, and he may stand, repelling any force with force, even though it become necessary to take the life of the assailant to repel the assault. Provocation by mere words is never an assault, and therefore will never excuse the use of force in retaliation. The right of self-defense includes the right of one to protect persons standing in the following relations, husband and wife, parent or person in loco parentis and child, members of the same family and master and servant. The right of self-defense also exists in favor of one for the protection of his possessions and the possessions of those holding the above relations toward him. In order that a person may avail him- self of the plea of self-defense, it is generally neces- sary that he shall have been free from fault in pro- voking the attack, for the law will not permit the right of self-defense to be used as a cloak for wrong- doing. § 288. The remedies. — The civil remedy for as- sault, or for assault and battery, is an action for dam- ages. The injured person is entitled to recover dam- ages for all the natural results of the injury that have been or probably will be suffered. Both mental and physical suffering, or impairment of faculties, the sense of shame and humiliation, the loss of so- cial respect, actual and direct pecuniary loss, are ele- ments to be considered in assessing the damages. §28S ASSAULT AND BATTERY. 17,5 Where the offense is done with malice, or with de- liberate intent to injure, exemplary or punitive damages may be recovered, unless the act is also punishable criminally, in which case such damages can not be recovered in a civil action. CHAPTER XXV. FALSE IMPRISONMENT. § 289. Definition. — It is every one's right to enjoy the freedom of his person, to go and come when- ever and wherever he may lawfully do so. Any interference with this freedom may be a legal wrong. To forcibly compel one to go from a place or to forcibly prevent him from coming to a place will gen- erally amount to and be actionable as an assault, battery, nuisance or trespass. Such an act will not, however, constitute an imprisonment. False imprisonment is imposing by force or threats an unlawful restraint upon one's freedom of locomo- tion, or detaining one without legal authority. § 290. The detention or restraint. — There need not be an actual touching of the person. If the per- son submits upon command or threats, and believes he is under restraint, it is a sufficient imprisonment. The restraint must, however, be complete. If one is prevented from moving in one direction only it is not imprisonment, nor is it if he is prevented from moving in every direction except one. So long as there is any reasonable path known to be left open and free to him, a person can not be said to be im- prisoned. But it is immaterial whether the bounda- ries of the imprisonment be large or small. § 291. The unlawfulness of the restraint. — To (176) §292 FALSE IMPRISONMENT. 177 constitute a legal wrong it is necessary that the im- prisonment be unlawful. For determining what restraints are unlawful, the shorter inquiry is, what restraints does the law allow ? All others will be legal wrongs. Lawful restraint may be, 1st, without legal pro- cess ; 2d, with legal process. § 292. Lawful restraint without legal process. — In some cases the law deems it less productive of mischief to allow a person by his own act to restrain another than to require him to resort to legal pro- ceedings. The reason lies in the ineffectiveness of legal proceedings under the circumstances, and in the necessity for prompt action. Order and peace are better subserved by the individual act than by the tardy redress of legal proceedings. A parent may impose restraint upon his child. A teacher acting in loco parentis may restrain a pupil, subject, however, to the control of the parent. A guardian of the person of a ward may exercise restraint. A shipmaster may restrain members of his crew or passengers to preserve discipline and order. Military officers, in time of war, may of course re- strain the captured enemy, spies and any persons in- fringing the rules of war, or suspected of doing so. In time of peace they may impose restraint upon those who are under military control, for military of- fenses, but they may not restrain others. One who is bail for another may generally, by fol- lowing the procedure of the statute, himself arrest and restrain his principal. 12 178 ELEMENTARY LAW. §292 Any person may restrain another who is danger- ous from insanity or intoxication, but is bound with- out delay to surrender the dangerous person to the officers of the law. A peace officer may without a warrant arrest and restrain a person : (1) To prevent breach of the peace in his view. (2) For a felony or misdemeanor if committed in his view, but not for a mere misdemeanor committed out of his view. (3) For a past felony, provided he has reasonable grounds for believing the arrested person committed a felony. And he is justifiable, even though in fact the arrested person is innocent, or even though in fact no felony had been committed. A private person may without legal proceedings arrest and restrain another : (1) To prevent breach of the peace in his view. (2) For a felony, whether past or in his view, provided a felony has been actually committed, and he has reasonable grounds for believing the person arrested to be guilty. He makes the arrest at his peril, however, and if no felony has been committed, he will be held liable. Where the arrest and restraint is for a felony or misdemeanor, the person arrested must be taken be- fore a magistrate within a reasonable time, or the imprisonment can not be justified. In all cases, the restraint exercised must be reasonable, and if it be- comes excessive, the person restraining is guilty of a legal wrong. It is, however, doubted whether a parent can ever be civilly liable for damages to his §293 ;false imprisonment. 179 child, on account of an excessive restraint, although he may be criminally liable therefor. § 293. Lawful restraint under legal process. — After judgment of insanity, a warrant in proper form is a justification for the restraint of the insane person, even after the person be in fact restored to sanity. Judges within the limits of their jurisdiction are never civilly liable for causing the restraint of a person, even where they are guilty of error, or abuse of their power. This rule rests upon public policy, it being deemed safer that judges shall be free from any fear of private suit, and that redress be left wholly to the state. But where judges act wholly without jurisdiction, they are civilly liable to the person restrained, if they have acted knowingly and maliciously. Courts of limited jurisdiction are held to stricter accountability, and are bound to know and not to exceed the limits of their jurisdiction. So that while judges of general jurisdiction, acting with- out or beyond jurisdiction, are not liable so long as they act in good faith, judges of limited and in- ferior jurisdiction are liable for acts in excess of jurisdiction, whether in good faith or not. § 294. Officers. — Officers who make arrests upon legal process must, in order to justify such arrests, be able to show : (1) That the process was issued by a court having jurisdiction of such cases. (2) That there is nothing on the face of the pro- cess, apprising the officer that no authority existed in the particular case. (3) That he acted reasonably, promptly and mod- erately, in the execution of the process. ISO ELEMENTARY LAW. § 295 All persons, whether parties or attorneys, who procure the issuance of illegal process, under which arrest is made, are liable to the person arrested. But the liability will not be on the ground of false im- prisonment, except where the process procured is extra-judicial, or in other words is not valid process. If the process is valid, there is no liability for false imprisonment, even though the process be procured by a malicious and false statement of the facts. The remedy in the latter case is by an action for malicious prosecution, which will be considered hereafter. § 295. Remedy. — The person arrested may main- tain an action for damages against the wrong-doer, and is entitled to recover all proximate damages. He may recover compensatory damages, and as ele- ments of such damages the jury may consider all expenses reasonably incurred to procure discharge, including reasonable attorney's fees in the former proceeding, loss of time and employment, loss by interruption of business, bodily and mental suffer- ing, the sense of shame and humiliation, the loss of or injury to honor, reputation and social position. In addition to compensatory damages, the person illegally restrained may recover exemplary or puni- tive damages when the act was done maliciously or with undue violence. But exemplary damages can not be recovered when the act complained of is pun-; ishable criminally. § 296. Privilege from arrest. — Upon grounds of public policy the law declares persons under certain circumstances to be free from arrest. Ambassadors and representatives of foreign pow- ers are exempt from local jurisdiction, not only in § 297 FALSE IMPRISONMENT. 1S1 civil but criminal cases, the fiction being that they carry with them the territory and jurisdiction of their own countries. The exemption extends to the family, secretaries and servants of the foreign rep- resentative. But the privilege may be waived and local jurisdiction may be submitted to. By the constitution of the United States and of the states members of the legislature are exempt from arrest, except for treason, felony or breach of the peace, while attending the sessions of the legis- lature, and for a reasonable time before and after, while going to or from the same. Parties litigant, witnesses, attorneys, judges, jurors and other officers of court are exempt from arrest on civil process while attending in court, and while go- ing to and from the same. In most states voters, while going to and from the polls, are privileged from civil arrest. In some states women are privi- leged from civil arrest. § 297. Remedy for arrest of privileged persons. — The privilege from arrest may always be waived by the privileged person. It follows, that the arrest is not wrongful until the person claims his privilege and applies for his discharge. This he may procure by application to the court issuing the process or by writ of habeas corpus. In some cases where the privilege is for the benefit of other persons, as in case of witnesses, any one interested may secure the discharge, or the court may act on its own motion. CHAPTER XXVI. MALICIOUS PROSECUTION. § 298. Elements of the wrong. — It is every man's legal right to be free from any unjust legal proceed- ings, and, strictly speaking, every suit or legal pro- ceeding that fails is an infringement of that right. But it is not every unsuccessful suit that will give the person sued a right to recover damages therefor. The due enforcement of the law requires that honest litigants shall not be deterred by the fear of liability for malicious prosecution from asserting their claims civilly, nor from the praiseworthy work of bringing offenders to justice. Therefore the wrong from un- founded legal proceedings is through motives of public policy limited to such proceedings as are in- stituted maliciously and without probable cause therefor. Furthermore, the law does not favor the maintenance of a second action during the pendency of another in which precisely the same questions are involved. The proceeding complained of as a mali- cious prosecution may always result in a judgment against the party charged, and when such result follows, the judgment is generally a conclusive ad- judication that there was sufficient cause for the proceeding. The law does not, therefore, permit an action for malicious prosecution until after the ter- mination of the proceeding complained of, and this (182) §299 MALICIOUS PROSECUTION. 183 termination must be other than by a valid judgment against the party charged, otherwise it might happen that a prosecuting witness would be held liable in damages for instituting a proceeding without prob- able cause, and afterward in the proceeding com- plained of the criminal might be convicted upon evidence beyond a reasonable doubt. Therefore, in order that a plaintiff may maintain an action for malicious prosecution, he must establish the con- currence of three things, 1st, the malicious motive; 2d, the absence of probable cause; 3d, the proceed- ing must have terminated. If he fails to establish any one of these three elements his action can not prevail. § 299. The malicious motive. — This does not nec- essarily mean hatred, ill-will or revenge. By mal- ice here is meant any direct or indirect motive of wrong. It may be any motive other than that of simply bringing the supposed offender to jus- tice. So, if the object of instituting criminal pro- ceedings be shown to be to compel a person to pay a debt or to surrender property, there is malice in the legal sense. Malice may be inferred from the reckless- ness or gross negligence of failing to make proper in ves- tigation before beginning the proceeding. And it may be inferred from the entire absence of probable cause. without other evidence ; for it is inconceivable that one can act with good faith in such a case, unless he has some probable cause. The question of the ex- istence or non-existence of malice is one of tact for the jury, although it is the province of the court to decide whether there is any or sufficient evidence of malice. 184 ELEMENTARY LAW. § 300 § 300. Want of probable cause.— Probable cause is the apparent existence of such facts and circum- stances as would excite the belief in a reasonable mind that the person charged is guilty. It is essen- tial that the prosecutor shall have entertained an honest belief in the guilt. Although there might otherwise be probable cause from suspicious circum- stances, yet if the prosecutor knew or believed the accused to be innocent he would not have probable cause for making the charge. It matters not that facts actually existed which would. amount to proba- ble cause, such facts must be known to the prosecu- tor at the time of the prosecution in order to avail him. The mental attitude of the prosecutor is in such case one of the facts and circumstances to be considered, in determining whether he had probable cause. It is not enough, however, that the prose- cutor entertained an honest belief in the guilt of the accused. Such belief must have been upon reason- able grounds, and mere floating rumors are not gen- erally considered a sufficient foundation. It makes no difference that the accused was in fact innocent; the question is not as to the innocence of the ac- cused, but whether there was probable cause for be- lieving him to be guilty. Absence of probable cause can not generally be inferred from the mere fact that the proceeding was actuated by ill-will. There must be other evidence. For, a belief upon probable grounds, that the accused was guilty of offense, would almost inevitably excite an ill-will toward him, and hence the existence of ill-will is equally consistent with the presence as, with the absence of probable cause. But where the malice consists in the §301 MALICIOUS PROSECUTION. 185 wrongful use of the legal proceedings for a collateral improper purpose, it is competent evidence of the ab- sence of probable cause ; for such evidence would go to the question whether the prosecutor honestly be- lieved the accused guilty. The fact that the prose- cutor laid the facts and circumstances before counsel learned in the law, and acted upon the opinion given, is competent evidence, both of the absence of malice and the existence of probable cause, but is not con- clusive. In order to afford protection, there must have been a full disclosure made to an attorney in regular practice. Of course, it must have been in good faith, for an attorney and client will not be per- mitted to use such a defense as a cloak for their col- lusive wrong. A judgment of conviction in the proceeding com- plained of is generally conclusive evidence of the ex- istence of probable cause, even though an appeal be taken, resulting in a new trial and subsequent ac- quittal. But if the conviction was secured by fraud or perjury, it will not be conclusive evidence. An acquittal in the proceeding complained of is competent, but not conclusive evidence of the ab- sence of probable cause. In defense to the action for malicious prosecution, it may be shown that the charge is true, notwithstanding the acquittal. For, an acquit- tal may have resulted from failure to establish the charge by evidence beyond a reasonable doubt, and yet the evidence may be sufficient to establish the charge by a preponderance. § 301. Proceeding must have terminated. — Gen- erally such termination must have been otherwise than by a judgment against the person charged, but 186 ELEMENTARY LAW. § 302 it need not have been by a judgment in favor of the person charged. It is a sufficient termination if the grand jury ignores a bill, where a person has been bound over; or if a nolle prosequi be entered; or if an indictment be quashed; or if the accused be dis- charged from bail or imprisonment. All that is necessary is that the proceeding shall have been so disposed of that it can not be revived, and that the prosecutor, if he intend to proceed further, must begin anew. § 302. Malicious prosecution of civil actions. — The action is usually brought for the malicious prose- cution of some criminal proceeding. But it is sometimes also allowed on account of civil suits upon the same principles. At common law the action was permitted for any proceeding, civil as well as criminal, upon termina- tion in favor of the defendant, but when by statute costs were given to the prevailing party, the right to maintain an action for malicious prosecution of civil suits was limited to such as involved the arrest of the person, the seizure of his property, or other such special injury. And this is the rule that prevails in many states, among which are New Jersey, Pennsyl- vania, Maryland, Iowa and Georgia. Other states have followed the common law as it existed prior to the statutes giving costs; among these are New York, Indiana, Vermont, Connecticut, Kentucky, Kansas, Illinois and Missouri. § 303. Malicious abuse of process. — It is not only for proceedings maliciously begun that the law affords redress, but also for any process, either civil or crim- §304 MALICIOUS PROSECUTION. 187 inal, though lawfully begun, if it is made use of for a purpose not justified by law. For example, a judg- ment may be lawfully recovered, but if after payment of the same, the creditor maliciously cause execution to be issued thereon and property to be seized, this is an abuse of process. Or, an execution may be lawfully issued, yet if an excessive levy be made thereon it is an abuse of process. It is generally necessary in order to sustain an action for abuse of process to prove both malice and want of probable cause, though if it be shown that the abuse was for the purpose of accomplishing some collateral wrong- ful purpose malice and want of probable cause may be inferred. § 304. Remedy. — The remedy for malicious prose- cution is an action for damages, which may be brought against any one who commences or procures another to commence such prosecution. Public offi- cers, however, who are charged with the duty of bringing such prosecutions, will be held liable only upon very clear proof of malice. The damages recoverable may be for all expenses, including attorney's fees in the proceeding complained of, suffering mental and physical, loss of time and business, injury to property, injury to reputation and honor, and the loss of social position. Where the prosecution was with great malice or other aggravated circumstances, exemplary or punitive damages may be allowed in addition to the compensatory damages. By way of mitigation of the damages it may be shown that the plaintiff had a bad character, that his conduct was such as to arouse suspicion, that any 188 ELEMENTARY LAW. § 304 reasons for probable cause existed though insufficient to establish it; also anything that goes to rebut mal- ice. But exemplary damages can not be recovered where the acts complained of are punishable crimi- nally,; CHAPTER XXVII. DEFAMATION. § 305. The right to reputation. — The theory upon which an action is given for defamation is that the person was entitled to a good reputation, that a false statement was maliciously made affecting the repu- tation, and that damages resulted therefrom. Al- though upon general principles the plaintiff is bound to affirmatively establish all of the elements consti- tuting his cause of action, it would, in nearly all cases of defamation, be found highly inconvenient to enforce such principles strictly. For, the nature of the charge may be such that no evidence is attain- able as to its truth or falsity; or, it may be impossible to expressly show the damage done; or, a stranger in the community, having acquired no reputation as yet, could prove no actual damage, and might be wholly unable to show how he would be actually damaged in the future. Taking into consideration these difficulties, and to the end that justice may not miscarry, the law aids the person defamed by mak- ing certain presumptions in his favor and throwing the burden upon the wrong-doer to produce evidence to justify or excuse himself. Therefore, in the ab- sence of evidence, the law presumes : 1st. That every one has a good reputation. 2d. That every charge against reputation is false. (189) 190 ELEMENTARY LAW. §306 3d. That every false charge is maliciously made. 4th. Where injury would naturally result, that it has actually resulted. § 306. Libel and slander. — The law divides def- amations into two classes. False defamatory words, if written and published, constitute libel; if published orally, slander. Libel is communicated through the medium of eyesight ; slander through the medium of hearing. By reason of the permanent and delib- erate character of libel, it is regarded as of a more ag- gravated nature than a mere slander, which may be spoken in heat and excitement, and may be more easily effaced from the memory of the hearers. While there is much that is common to both libel and slander, there are some points in which they radically differ. It will be convenient to consider each separately, in so far as they are variant, and afterwards to note the principles common to both. § 307. Slander. — False defamatory words spoken of a person are actionable : 1st. Where they charge an indictable offense, which involves moral turpitude or would subject the person to an ignominious punishment. 2d. Where they charge a person with having a contagious or infectious disease, tending to exclude him from society. 3d. Where they are spoken of a person in the way of his office, trade or profession. In these three classes, and no others, the law pre- sumes without proof that the reputation has been in- jured. They are said to be actionable per se. 4th. This leaves a fourth class, in which the charge is such that damages can not be said to be §308 DEFAMATION. 191 the usual and natural result, and therefore the law- does not presume them, but requires the person in- jured to allege and prove the special damages suf- fered. § 308. Slander imputing crime. — It is necessary that the acts charged be such as are indictable. If not indictable, the charge is not actionable per se under this class, unless so declared to be by statute. By ignominious punishment is meant any corpo- real punishment ; as death, whipping, or imprison- ment. Punishment by fine only is not deemed ig- nominious. But if the penalty be in the alternative, by fine or imprisonment, the offense is punishable ignominiously. What does and what does not involve moral turpi- tude, it is not easy to define. When the case arises, it is usually clear. It may be stated to be whatever is shocking to the moral sense of the community. Slander imputing such offense is actionable per se, even though the offense be punishable by fine only. Where crime is charged, it is immaterial whether it be stated that the part} r has been punished forsueh crime, or that he is guilty and liable to be punished. If false, the charge is equally actionable per se. Proper to be included in this class are certain charges which are declared by statute to be actionable per se, in the same manner as charges of crime. These are usually charges affecting the chastity of a woman, and charges of certain disgraceful acts by cither a man or a woman. In some states the charge of un- chastity against a man is also made actionable perse. The imputation of crime need not be in language that technically describes the crime. It is sufficient 192 ELEMENTARY LAW. § 309 if the words were meant and understood to convey such imputation. § 309. Slander imputing; disease. — The diseases intended by this class are such as are loathsome or involve moral disgrace. A charge that one has the small-pox is, however, not deemed to be actionable per se. It is essential that the disease be charged as existing at the time. If the statement be made in the past tense, it is not actionable per se under this class. § 310. Slander affecting one in his office, profes- sion or trade. — It is essential that the occupation be one that is recognized by the law as legitimate, and that the slander touch one in the capacity of his occupation. Hence it is not actionable per se to say of a gambler that he cheats in cards. But it is ac- tionable per se to say of an attorney that he disclosed professional communications; of a clergyman that he is a drunkard; of a physician that he is guilty of malpractice; of a judge that he takes bribes; of a mechanic that he is incompetent. It is also essen- tial that the charge be made while the person is holding or pursuing the occupation. If made after- wards it is not actionable per se. § 311. Slanders actionable only by reason of spe- cial damages. — A satisfactory enumeration of such cases can not be made. Any defamatory words that produce actual damage may give a cause of action. The damages must, however, be such as are deemed to be the proximate result of the slander. If the damages are remote there is no cause of action. It is essential that the damages be pecuniary or mate- rial, such as the loss of a marriage, loss of employ- §312 DEFAMATION. 193 ment, loss of profits, or injury to business. Mere mental anxiety and distress are not such damag* will support the action. § 312. Slander of title. — Analogous to slander of the person whereby special damages are suffered, is what is called slander of title, i. e., false statements, either oral or written, with reference to a man's property or business whereby its value is diminished. If the language involves the reputation of the owner it may be actionable as slander of the person. But there are many cases in which only the property or business is affected. Such language is not in the strict sense slander or defamation at all, for these are concerned with reputation only. Inasmuch as in slander of title reputation is not involved, there is no aid given by the presumptions heretofore men- tioned in plaintiff's favor. The plaintiff must es- tablish by his evidence, 1st, that the words were false; 2d, that they caused injury to the title or prop- erty; 3d, that they were uttered maliciously; 4th, that plaintiff had the title or interest; 5th, that there was an absence of probable cause for using the words. § 313. Libel. — A libel need not necessarily be in writing or print. Any caricature, scandalous paint- ing, drawing or effigy may constitute a libel. Any spoken charge that is actionable per se will if pub- lished in writing be a libel. Hence, it is libelous to charge in writing, crimes, diseases, or scandals affect- ing occupations. But libel goes further, its wider range being based upon the deliberate nature of the act, its permanent form, and the greater damage caused. § 314. Definition. — Any false and defamatory 194 ELEMENTARY LAW. § 315 printing, writing, sign, picture, representation or effigy, tending to expose any person to public hatred or ridicule, deprive him of the benefits of public con- fidence or social intercourse, or designed to blacken and vilify the memory of a deceased person and tending to scandalize and disgrace his relations and friends, is a libel. It is not necessary to prove special damages in any action for libel. If there is a libel at all, it is a libel per se. It is not necessary that the libelous language im- pute crime or even disgraceful conduct ; it is suffi- cient if the person is rendered contemptible or ridicu- lous. As to charges affecting one's occupation, or imput- ing diseases, it is not essential in libel that they be made in the present tense, as is the case in slander. To impute by libel past misconduct or past diseases may also be actionable. § 315. Newspapers.— The constitutional guaranty of freedom of the press is often misconstrued, and it is popularly supposed that newspapers by virtue of their public nature are not held to so strict ac- countability for libel as mere private individuals. The law recognizes no such distinction. Freedom of the press means that there shall be no censorship by those in authority. Any man is free to write or pub- lish whatever he chooses of another, but subject to the legal consequences if the publication be defamatory. Newspaper and individual must defend upon the same legal grounds. We pass now to the principles common to both libel and slander. §31G DEFAMATION. 195 § 31G. Publication. — It is essential, in order to give an action for libel or slander, that the defama- tory words shall have been published. By pub- lication is meant communication to a third person. of the words be heard or read only by the person against whom they are directed, there is no liability; for his reputation, i. e., the estimation in which he is held by others, is not thereby injured. And if such person repeat the words, or show the letter to others, he has no cause of action, for the publication was his own act. But it is not material that the author of a libel or slander shall have intended a publication ; he is liable if in fact there was com- munication to third persons otherwise than by the act of the person defamed. So, if one shout a slan- der, he is not liable if no one hears or understands, but he is if there be a listener known or unknown to him. And so it is publication of a libel if, after the author has parted with possession of it, it is read by one whom he did not intend to read it. Where two persons composed a libel together and sent it to the plaintiff, it was held to be a publication, the part that each took being a publica- tion in .the hearing and knowledge of the other. Every repetition of a slander or libel is a fresh pub- lication, and gives a cause of action. The law regards communications between husband and wife as privileged, therefore communication by either to the other of defamatory matter against others is not deemed to be a publication. But if such communication be in the hearing or to the knowledge of a third person, there is a publication. 196 ELEMENTARY LAW. §317 A slander or libel against either a husband or wife, if heard or read by the other, is a publication. § 317. Construction. — The general rule is that words are to be understood according to their plain and natural import, and when the language is clear and unambiguous the court will not, ordinarily, allow the meaning to be varied by testimony that the author intended or the hearers understood them in a different sense. For, ordinarily, the presence or ab- sence of an intention to injure can not change the effect of the language; and, on the other hand, the fact that some persons misunderstood the language, ought not to determine its quality, good or bad. In the large majority of cases, however, there is room for question whether the language is to a greater or less degree injurious in its meaning. Wherever by reason of any local or provincial usage words have an unusual meaning, or wherever by reason of any special circumstances the language has a pecu- liar effect, the plaintiff may declare what such mean- ing or innuendo is, and such facts may be given in evidence and the language construed in the light of them. Such facts may be shown whether the result be to establish either an innocent or a harmful meaning. In cases where the language is ambiguous in any re- spect, the law has undergone some modifications. In the earlier actions the rule was that the words were to be construed in the most favorable sense, the theory being that such construction would suppress litigation. Later, it was held that words should be taken in an unfavorable sense, it being supposed that, by affording legal remedy, resort to personal violence for redress would be prevented. Still later §318 DEFAMATION. 197 the well recognized rule was that the courts should affix to the words a plain and natural meaning. The modern rule, however, sustained hy the weight of authority and founded in better reason, is that where there is any ambiguity in the language the words may be construed in the reasonable sense in which the hearers or readers actually understood them, and to that end the testimony of the hearers or readers is received, together with evidence of all the surround- ing circumstances. The meaning actually intended by the author is immaterial upon the question of liability, except so far as he may have made it apparent at the time. If his ambiguous language was intended harmlessly, but was reasonably understood in an injurious sense, he is responsible. And if the language is not defam- atory and was not so taken, there is no injury, although the author desired and intended there should be. § 318. Certainty. — The rule of law is that there is no liability unless there is certainty, (1) as to the person charged, (2) as to the imputation made. The reference must be to some ascertained or ascertain- able person, who must, of course, be the plaintiff. The person may be ascertained either from the lan- guage itself or from the surrounding circumstances which give peculiar point to the language. So, where the reference is to a class of individuals and not to any member, the circumstances may be such that the jury can determine which was meant. But to merely charge as to two witnesses who have testi- fied contradictorily, "one of you two has committed 19S ELEMENTARY LAW. §319 perjury," is not actionable, for it is not and can not be certainly applied to either. The imputation made must be certain, or capable of being made certain. The words need not, how- ever, be technically exact as a description of the charge. Any words that distinctly assume guilt in the party charged are sufficient. But it is not essen- tial that the words be affirmative. They may be actionable where the form of the language is inter- rogative; and it is conceivable that a statement in the negative may be so worded or emphasized as to convey the meaning of an affirmative charge. In determining whether an imputation is certain, it is proper to consider not only the words, but all the surrounding circumstances that may give especial force to language used. § 319. Malice. — By most law writers and by the courts it is stated that malice is an essential ingredi- ent of actions for libel or slander. But, as in cases for malicious prosecution, the term malice has a peculiar meaning. It is not synonymous with hatred or ill-will. Malice may in a legal sense exist, where in fact the defendant's real motive was to benefit the plaintiff. For example, where a newspaper publishes the fact that a defamatory charge has been made, and adds the comment that the publisher believes it to be false. Malice is said to be either express or implied ; and the distinction is clearly marked. Radically differ- ent principles control. As the equivalents of ex- press and implied malice, the words, " malice in fact," and " malice in law," are also used. Some confusion in the law has resulted from the §319 DEFAMATION. 199 failure to keep the distinction clear. The courts have often used the word malice without qualification to express either meaning, and some decisions have therefore been misleading. Malice in law or implied malice is such as the court infers without evidence of malice. The infer- ence is made from the fact of the falsity of the charge, in accordance with the presumptions heretofore noted. This inference is not permitted by the law to be overcome by evidence that the motive was not in fact malicious. It can be overcome only by showing that the words complained of were published upon what is called a privileged occasion. On account of this inflexible rule of law, some text- writers have sought to establish the proposition that there is but one kind of malice, i. e., express malice, or malice in fact, and that instead of holding that there is " malice in law " in certain cases, the courts should hold that in such cases malice is not essential. The results, however, are the same, and the courts have declined to adopt the nomenclature urged by these text-writers. Express malice, or malice in fact, includes actual malice in its popular acceptation. As an eminent judge said, "It means a wrong feeling in a man's mind." Any indirect or dishonest motive which in- duces one to defame another may be malice. Gross negligence or wantonness in the disregard of other's rights may be sufficient evidence to warrant a finding that malice existed. Actual malice may be shown by intrinsic evidence, viz., the kind of language used, its exaggerated character, the manner of its publication; or it may 200 ELEMENTARY LAW. § 320 be shown by extrinsic evidence, viz., by any facts not contained in the publication itself, as for instance, by other publications, subsequent repetitions, refusal to retract, the existence of an old grudge. Actual malice is always a question to be determined by the jury, and not by the court. By reason of the presumptions in plaintiff's favor, above referred to, it results that the questions arising are usually as to the sufficiency of the facts to afford a defense. The defenses will now be considered. § 320. Justification. — In libel and slander this word means only that the charge made is true. The presumption being that a defamatory charge is false, the burden falls upon the defendant to prove, if he can, the truth of the charge. And the uniform rule is that if the defendant wishes to avail himself of this defense he must affirmatively plead it. This is called a plea or answer of justification. The defend- ant may always defend by showing the truth of the imputation, and the defense, if established, is com- plete; for, there can be no legal wrong of defamation by speaking the truth of anyone. Under a plea of justification, however, the defendant must show that not only the words but their meaning, as alleged, are true. If he disputes that the words mean what they are alleged to mean, he does not do so by way of justification, but to that extent by denial. It is a principle peculiar to civil suits for libel and slander that where the defamatory charge is that crime has been committed, it is necessary, in order to sustain a plea of justification, to prove the truth of the charge by the same degree of proof that would be required to convict the party if under indictment §321 DEFAMATION. 201 for the crime. In other words, justification of a charge of crime must be proven beyond a reasonable doubt. But if no crime is charged the justification may be established by a mere preponderance of evi- dence. These rules have been modified by statute in some states. Where justification is the issue, it is wholly im- material to the question of liability whether the defendant acted maliciously or not. If the charge is true, the defense is complete, even though there was gross malice; and if the charge is found not true, the defendant is not relieved from liability by the fact that he acted in good faith. The only effect of evidence as to defendant's motive in such case can be to enhance or diminish the amount of dam- ages recovered. § 321. Privilege. — As has been said, the truth is a complete defense in libel and slander. Wherever truth is shown the action fails. The question now arises, when does the law excuse a defamatory charge that is false ? Upon grounds of public policy, com- mon convenience and the general welfare of society, there must be immunity upon certain occasions. Statements made upon such occasions are called privileged communications. They are divided into two classes and are said to be of either : 1st. Absolute privilege. 2d. Qualified privilege. It is to be noted that the privilege attaches to the occasion, and not to the matter stated, for, if the same matter be afterward repeated upon an unpriv- ileged occasion, it has no protection. § 322. Absolute privilege. — The occasions of ab- solute privilege are few, and the tendency of the 202 ELEMENTARY LAW. § 323 courts is to narrow rather than enlarge them. They rest upon the ground that it is advantageous to the public interests that persons on such occasions should not be fettered in their statements. The cases of absolute privilege fall under three heads: 1. Legislative proceedings. 2. Judicial proceedings. 3. Naval and military affairs. § 323. Legislative proceedings. — No member of either house of congress, or of either house of the state legislature, is in any way responsible in a court for anything he may say in such house. This rests upon the provisions common to the constitutions of the United States and several states that, " for any speech or debate in either house, they shall not be questioned in any other place." The privilege, how- ever, is confined to the walls of the house, which in- cludes its committee-rooms. If the member publish the speech to the world, he is liable as any other in- dividual would be. The absolute privilege does not extend to inferior legislative bodies. § 324. Judicial proceedings. — Everything that a judge says on the bench, or a witness on the stand, or counsel in trying and arguing a cause, is abso- lutely privileged, so long as it is pertinent to the in- quiry. A judge of a court of general jurisdiction is free to say anything concerning a case, while the case is be- ing tried, no matter what his knowledge or motive is, and whether the statement is relevant or not. But a judge of limited jurisdiction is not privileged, unless the statement be relevant to the matter in hand. A witness on the stand is not liable for § 325 DEFAMATION. 203 any statement he may make, whatever may be his knowledge or motive, provided such statement is drawn out by questions, or, if volunteered, is rele- vant or believed to be relevant to the case. For any irrelevant matter, if volunteered from a malicious motive, he may be held liable, and he may be held liable for any statements made while not on the stand, whether in or outside the court room. Counsel in a cause may speak any words, however defamatory and false, and whatever may be their knowledge or motive, provided only that they are acting within their instructions and their remarks are pertinent to the case. They may draw any in- ference they wish from the evidence. But they may not recklessly assert anything of which they can give no evidence. All pleadings, affidavits and papers in a cause are absolutely privileged. Even if matter be intro- duced that is irrelevant and scandalous, so that it is struck out by the court on motion, no action lies. § 325. Naval and military matters. — All reports by a naval or military officer to his superior, and all testimony or argument in a court-martial, are abso- lutely privileged. In all cases of absolute privilege, the question is only whether the defendant has brought himself within it. If he has not, he is liable as any other person would be; if he has, then the question of his malice is wholly immaterial. § 326. Qualified privilege. — It is an essential ele- ment of all qualified privileges, that the communi- cation under it be made in good faith. No person is allowed to take advantage of qualified privilege to vent his malice. 204 ELEMENTARY LAW. § 327 Whenever it is shown that the language complained of was uttered upon a privileged occasion, the law- ceases to presume the existence of malice, and re- quires proof that there was actual malice. As it is expressed, the privileged occasion rebuts implied malice. It then becomes incumbent upon the plaint- iff to prove that the defendant was actuated by ex- press malice — malice in fact; and unless in such case the plaintiff does establish the existence of malice in fact his action fails. Whether a privilege exists is always a question of law for the court; whether the defendant was actuated by the proper motive is left to the jury. In all cases of qualified privilege it is conclusive evidence of actual malice to prove that the defend- ant knew the charge to be false. For it is incon- ceivable that a man can have an innocent motive in uttering a defamatory charge that he knows to be false. Cases of qualified privilege may be grouped under three heads : 1. Communications made in matters of public in- terest and general concern. 2. Communications made to persons to whom the defendant owes a duty to make communication. 3. Communications made in self-defense. § 327. Matters of public interest and concern. — Anything that is of general concern to the inhabit- ants of a town, city or community is what is intended. Though the matter be of only a local interest the rule applies, so long as the matter is not merely of private concern. All public institutions and their manage- ment, all public entertainments, published books, §327 DEFAMATION. 205 pictures publicly exhibited, the architecture of pub- lic buildings may be freely criticised. All appeals to the public are subject to honest criticism and the critic will not be liable for false statements made. Whoever seeks notoriety or invites public attention challenges public criticism and must bear the burden of honestly made statements, even though they may be erroneous. All public officials, and candidates for office, maybe freely criticised, provided the criti- cism be made in good faith. But whenever matters of general concern are com- mented upon, the speaker or writer is bound to con- fine himself to what is of public nature. If this limit is transcended and private matters or private character touched upon, no privilege can be claimed therefor. For instance, though the official acts of an officer may in good faith be commented upon, by reason or by ridicule, even though the statements be in fact false and injurious, yet if the critic should go beyond the public matter, and falsely accuse the offi- cer of a crime, it would affect him privately, and no protection would be given. Reports of judicial proceedings are upon matters of public interest. Every fair and accurate report of judicial proceedings is privileged, though false de- famatory matter be contained in it. The privilege does not attach, however, where the publication is prohibited by the court, or where the matter is ob- scene ; for in such case the publisher is guilty of wrong in the very fact of publishing, and will not be permitted to avail himself of a legal protection for such wrong. The report to be privileged must be substantially a fair account of what actually took 206 ELEMENTARY LAW. § 328 place in court. The reporter may not, however, se- lect damaging parts and omit the beneficial parts ; and he has no privilege to comment on the evidence and give his opinion of it. Indeed, if he mixes up comment with what would otherwise be a fair report, the privilege is lost for the whole article. Fair and accurate reports of proceedings of the legislature stand upon the same footing, and are sub- ject to the same limitations, as in case of judicial proceedings. No other reports are privileged. No privilege can be claimed for reports of the doings of municipal legislatures, public meetings, political meetings, or stockholders' meetings. § 328. Communications made under duty. — There is no liability for honest mistakes, where an employer is asked to give a statement regarding the character of a servant. But there is no protection given, if the false statement be made from an improper motive, or if made recklessly and wantonly. There is no privilege for officious intermeddling, as where no in- quiry has been made, or where there is no duty to speak. Answers made in good faith to inquiries about persons with whom business dealings are contem- plated are protected even though they turn out to be false. Hence, reports of mercantile agencies to their customers are privileged, if made in good faith. So, inquiries by and answers to one interested in discovering a wrong-doer, are privileged. Any rela- tion of confidence is sufficient to raise a duty to make communications, and if they are made in good faith they are privileged. The following relations have been held to be of the privileged character : §329 DEFAMATION. 207 Husband and wife, father and child, brothers and sisters, guardian and ward, master and servant, prin- cipal and agent, landlord and tenant, lawyer and client, partners, and in one case it was held that in- timate friendship might be a sufficient ground. §329. Communications in self-defense. — If the statement complained of be one which has been in- vited or requested by the plaintiff, it is privileged, even though false, provided it be made in good taith. For example, if the defendant had previously made the statement under a privilege, and the plaintiff de- mands an explanation in the presence of strangers, or if defamatory words had been said by the defend- ant to the plaintiff alone, and plaintiff afterwards bring a stranger and demand whether defendant had used the defamatory words, such subsequent state- ments are deemed to be made in self-defense and are privileged if in good faith. § 330. The remedy. — The civil remedy for libel or slander is an action for damages. The courts will not interfere by injunction to restrain the publication of a libel or slander, for the reason that it must first be established before a jury whether the matter is or is not actionable. But after a verdict for the plaint- iff, a court of equity may enjoin the subsequent repe- titions of the defamatory matter. § 331. The damages. — Considered from the point of view of the jury, the damages awarded may be: 1st. Contemptuous, as where the defendant has been technically guilty of defamation, but the jury think the plaintiff greatly in fault, and therefore assess the damages at a nominal sum. 2d. Substantial or compensatory, where the jury 208 ELEMENTARY LAW. § 331 aims to arrive at the actual injury suffered by the plaintiff. 3d. Exemplary or punitive, where the jury seek to express their sense of the defendant's harsh and malicious conduct by fining him in an amount be- yond the compensatory damages. Considered from the judge's point of view the damages assessed may be either : 1st. General damages, viz., the natural and prob- able consequences of the false charge, which are presumed by the law without evidence in all cases where the words are actionable per se. 2d. Special damages, viz., such as the law will not infer, but requires to be established by evidence. Wherever general damages are recoverable, special damages may also be recovered if specially pleaded and proven. Where a charge is not actionable per se, there is no cause of action unless the special dam- ages be alleged and proven, and the recovery is lim- ited to such special damages. The amount recoverable by the plaintiff as com- pensatory damages may be larger or smaller accord- ing to the evidence. Whatever goes to show the greater extent of the injury is said to be in aggrava- tion of damages; whatever goes to show the less extent of the injury is said to be in mitigation of damages. By way of aggravation, evidence may be received of the social position and influence of both plaintiff and defendant and their pecuniary circumstances so far as the same may bear upon the influence exerted by the charge, the publicity of the charge, the fact that it was wholly unprovoked, and by some courts it is §331 DEFAMATION. 209 held that an unsuccessful plea of justification may be considered in aggravation, though such is not the general rule. By way of mitigation of damages, evidence maybe received that the words were spoken in passion or excitement provoked by plaintiff, and hence all the injury is not attributable to defendant's fault ; that the defendant had no actual malice, was insane or drunk, so far as the same may have appeared at the time of the defamation, and so have caused the wrong to have a less injurious effect; that plaintiff's character was bad, or that general rumors existed that he was guilty ; that the defendant has made ample retraction. While the fact that others had previously published the same defamatory matter is not in itself admissible in mitigation, yet the de- fendant ought not to be held liable for any injury not resulting from his act, and it seems that evi- dence of previous publication by others will be re- ceived, if it can be shown that part ot the injury claimed by plaintiff was in fact caused by such other publications and not by the defendant's act. Whether upon a plea of justification only, any evidence in mitigation may be given has been a disputed ques- tion, but the weight of authority is that such evi- dence may be admissible, whatever the issue. Exemplary or punitive damages are based upon the mental attitude of the wrong-doer, and are by way of rebuke or punishment for his malice. They may be given on account of the violent or ex- aggerated character of the charge as showing deliber- ate malice. Evidence may be received of previous 14 210 ELEMENTARY LAW. § 331 transactions that indicate malice in the case at bar; of recklessness in uttering the false statement ; of the publicity and repetitions of the charge, as show- ing unusual malice ; of a refusal to listen to explana- tions, or after explanation to make retraction. It is the uniform rule, however, that exemplary damages can not be allowed where the defamation is punish- able criminally. Hence, where libel is an indictable offense, evidence of the defendant's actual motive, malicious or otherwise, is not properly admissible, except so far as it can be shown to have affected the actual injury. It is to be noted that in slanders of the fourth class, i. e., those actionable only by reason of special damages, the plaintiff is confined to such actual in- jury as he alleges and proves, and since exemplary damages are not based upon actual injury, it follows that in cases of slander not actionable per se, no ex- emplary damages can be recovered. CHAPTER XXVIII. WRONGS TO CIVIL AND POLITICAL RIGHTS. § 332. General nature. — In a large sense every right is a civil or political right. The right to be free from assault is one phase of the civil right to life, liberty and the pursuit of happiness. So of the right to reputation and personal freedom. It is now intended, however, to cover such civil rights as every person has in a public wa} T — rights in and toward the community. Many of these will be found to be rights of imperfect obligation, in so far as the law does not undertake to redress infringe- ments upon them. It may be stated as a general rule that all such rights are held subject to the control of the sovereign power, and by that power may be curtailed or en- larged. Many are protected by the constitution and can be affected only by amendment of the constitu- tion. Others are subject to modification from time to time by legislative enactment. For any alterations of rights by the sovereign power or by its representa- tives within their authority, it is clear that there can be no remedy. § 333. The right of Suffrage. — Every qualified voter has the right to cast his vote and have it duly counted. He may be deprived of that right in a (211) 212 ELEMENTARY LAW. § 334 number of ways, by force or by misconduct of offi- cers or other voters. It is only for a small part of the wrongs in this matter that the law gives a pri- vate right of action. Where officers have neglected or refused to perform the preliminaries, so that votes can not be honestly and lawfully counted, the princi- pal injury is not to any individual, but to the com- munity. The loss is general, not special. So, also, where the officers have received illegal votes, it is the general injury to the community, rather than the in- jury to any individual that is involved. In such cases the law gives no action in favor of private per- sons, but leaves the wrong-doer to be punished un- der criminal process. There may be conduct, how- ever, by which the principal and direct injury is to the individual, though there is present also a public injury, as where by force or threats one is kept away from the polling place, or prevented from casting his vote, or where the officers willfully and ma- liciously refuse to permit one to cast his lawful bal- lot, or where the officers wrongfully invade the voter's right to secrecy of the ballot. In such cases the law permits the injured voter to recover in an action for damages against the wrong-doer. § 334. The right to assemble. — The right of citi- zens to assemble in a peaceable manner to consult for their common good is a political right that is generally secured by the constitutions of the states. Whoever prevents any citizen from exercising this right may be held guilty of a wrong. If force is used, the remedy may be an action for assault, bat- tery or false imprisonment, in which the deprivation of the right will enter as an element of damages. §335 WRONGS TO CIVIL AND POLITICAL RIGHTS. 213 But the wrong may consist in merely obstructing one from entering the meeting, and though such act may not amount to a battery or imprisonment, yet the law will afford redress by an action for damages. § 335. The right to bear arms. — This right is guaranteed by federal and state constitutions to every citizen. As used in the constitutions the word "arms" has the military sense and refers to such weapons as are suitable for the general defense of the commu- nity, and does not include such weapons as are peculiarly adapted to individual encounters. There- fore it would not be unconstitutional to prohibit the carrying of such weapons as the siungshot. The constitution does not forbid the passage of laws against carrying weapons concealed or against carrying weapons openly with intent to use them unlawfully. It is evident that the invasion of this right must always be at the hands of the state, and accordingly there can be no recovery of damages in favor of one injured. His remedy must be to have the statute declared unconstitutional. § 336. Freedom of speech and of the press. — The constitutions of the United States and of the several states prohibit the enactment of any laws restricting the right to speak, write or print freely on any sub- ject. The intent of these provisions is to forbid censorship or control by persons who exercise the power of the state. Freedom of speech or press is not thereby enlarged, but only protected against in- vasion. There is no unlimited freedom of speech or press. The right must be exercised subject to the bounds fixed by law. Liberty of the press consists in 214 ELEMENTARY LAW. § 337 printing without any previous license, but subject to the consequences of law. The right of free speech and press does not war- rant a man's using blasphemous, obscene or seditious language. Legislation directed against such speak- ing, writing or printing is uniformly held to be con- stitutional. The user of such language may be punishable criminally, and when the language is part of some civil wrong, it may be a valid ground for increasing the amount recovered in a civil suit. Where the direct and natural consequence of such language is to cause injury, the user may sometimes be held liable for the consequences, criminally or civilly. No man may abuse the right of free speech or free press, by slandering or libeling another. The cases where one is not held responsible in damages for false statements, spoken or written, have been shown in the sections relating to privileged communica- tion under the subject of libel and slander. § 337. The right to office.— The right to enjoy an office, to which one has been duly elected, may be violated by any one who excludes such officer there- from, and the law will afford redress not only by ousting the wrong-doer, but also by giving damages against him for his wrongful act. § 338. Religious liberty. — The right to the com- plete enjoyment of religious freedom is subject only to the sovereign power of the state. This power can be exercised in restraint only so far as the public good may require, taking into consideration the cir- cumstances of the people and the general moral sense. Within this limit the legislature may impose § 339 WRONGS TO CIVIL AND POLITICAL RIGHTS. J 1 ."> restrictions. Therefore it may prohibit sacrifices of human beings or animals, may prohibit polygamy or any other immoral practice. These are not strictly invasions of the right. The right may, however, be invaded by individuals in any of the ways that the exercise of political rights may be invaded, and the law will afford re- dress by an action for damages. It frequently hap- pens, as in the case of political rights, that the violation of religious liberty is incidental to some wrong that is actionable upon other grounds. § 339. The right to an education. — Where the state makes provision for education it is bound to do so upon equal terms to all citizens. The citizen has then a civil right to the benefits. Whoever violates this right by wrongfully depriving another of such educational privileges may be liable in an action for damages. And if the wrong be by the act of an officer charged with the duty of furnishing such privileges, there may, in many cases, be a remedy by mandamus. § 340. Unlawful searches. — The right to be pro- tected against unlawful searches is secured by the constitutions. Every citizen is entitled to maintain the privacy and secrecy of his home and business, whatever may be his reason for doing so. Whoever invades this right by a search that is not provided for by law may be liable therefor in damages, and where a search is made under legal process, if the process be used for a wrongful purpose, or if acts be done in excess of its authority, the wrong-doer may be held liable in an action for abuse of process or other appropriate action. 216 ELEMENTARY LAW. § 341 § 341. Performance of official duties. — Wherever the law clothes one or more persons with power and imposes the duty to do certain acts, the correspond- ing right exists in the public or in individuals to have that duty correctly and honestly performed. The duty may be violated either through mere honest error, or through malicious and corrupt motives. But it is not for every such violation that the law gives a remedy, and for some violations the only remedy i£ in an action by the state, by mandamus or prohibition, by indictment or by impeachment. In order to determine what, if any, remedy exists, the act in question must be submitted to several tests. One test is whether the act was within or in excess of the authority conferred. If within authority the officer is generally protected, if in excess he may not be. Another test is whether the act in question be one that involves the exercise of judgment or discretion as to the manner and propriety of doing it, or whether it is merely ministerial, i. e., the manner and pro- priety of its performance is precisely fixed by law. For acts of the discretionary kind the officer gener- ally enjoys immunity from suit; for acts that are merely ministerial, he may be held responsible in legal proceedings. Still another test lies in the effect of the act in question. Every violation of official duty is in some sense an injury to both the public, as a whole, and to every individual of the community. There are, however, some official duties that are imposed pri- marily for the public benefit, and that affect indi- viduals only incidentally; and again there are duties § 342 WRONGS TO CIVIL AND POLITICAL RIG 1 1 IS. 2 1 7 that are imposed primarily for individual benefit, though they may also have an incidental public effect. For example, on the one hand, embezzle- ment of public funds by an officer; on the other hand, refusal by a sheriff to execute a lawful civil writ. In the former case there is no private right of action, but the remedy is confined to the state; in the latter case, the one specially injured may gener- ally have redress. It will be of advantage to consider more in detail the acts of various official bodies and persons, in order to ascertain the quality of the acts, and the remedies, if any, that are given. § 342. Duties of the legislature. — It is obvious that all of the legislature's acts are governmental and discretionary. In their nature, its powers are exercised primarily for the public benefit and only secondarily for private benefit. The legislature as a body can have no ministerial duties to perform. Hence, even though the majority or all of the legis- lators may in a special instance have acted from ma- licious and corrupt motives, whereby injury has been caused to an individual, there can be no remedy by private suit. Subordinate legislative bodies, however, such as municipal councils, are subject to inquiry in the courts at the suit of individuals, in so far as they act corruptly. Such subordinate bodies may further- more have duties to perform that are merely minis- terial ; for example, keeping streets in repair. For the wrongful performance or non-performance of such duties, if primarily for individual benefit, they may be held liable at the suit of one specially injured. 218 ELEMENTARY LAW. §343 Acts of the legislature in excess of its authority are void, and will be so declared by the courts. Acts of subordinate legislative bodies in excess of authority will not only be declared void, but where special in- jury has resulted therefrom to an individual, he may have redress. § 343. Executive and administrative duties. — The executive power of the United States is vested in the president, and of the several states in the govern- ors. In the exercise of their respective executive functions, they are not responsible to the courts, upon the fundamental principle that the three co- ordinate branches of the government must be inde- pendent of each other's control. So long as an act is within the executive power, it can not be re- viewed by the courts, no matter whether the motive be malicious and corrupt, and whether it causes special injury to an individual. The only remedy, if any there be, would be by way of impeachment. Inferior officers charged with duties to carry into effect the laws are usually called administrative offi- cers. The protection to such officers acting within their powers extends only to their errors. If such an officer acts corruptly or maliciously, he may be held liable to civil suit by an individual injured. Any executive or administrative officer may be charged with the performance of duties that are merely ministerial. As to such duties, the officer is subject to the control of the courts by the writ of mandamus, or may be held liable for damages to an individual specially injured. Whenever an officer acts in excess of his authority, § 344 WRONGS TO CIVIL AND POLITICAL RIGHTS. 219 he to that extent incurs all the responsibility of an individual. § 344. Judicial duties.— Judicial acts necessarily involve the exercise of judgment or discretion. For such acts there is complete and absolute immunity from civil suits. So long as they act within their jurisdiction, judges can not be held liable civilly, however gross the error may be, or however corrupt and malicious the motive that inspires the act. This is now the well settled law, older cases affirming a contrary doctrine having been overruled. The rule applies with equal force to courts of special and lim- ited jurisdiction, as to those of superior and general jurisdiction. The strong reason upon which the rule rests is in public policy. It is deemed more advantageous to the public that judges shall be wholly free from fear of private suit. The frailty of human nature is such that an honest litigant, firmly convinced of the jus- tice of his cause, is prone upon an adverse decision to believe that the judge can not have acted with pure motives. The decision must always be against one party or the other, and if it were permitted to sue a judge for a corrupt decision, every honest judge might be hampered by the fear of suits brought by those who feel aggrieved at his decisions. Such a fear would to a greater or less extent necessarily im- pair the efficiency of the judges. It is therefore deemed best to clothe the judge while acting within his jurisdiction with complete immunity from pri- vate suits, and to leave the remedy in the hands of the state only. By the phrase, "having jurisdiction," is not 990 ELEMENTARY LAW. § 345 meant merely the having jurisdiction of the special case before the court, but the having jurisdiction of that class of cases. From this results a distinction between courts of general jurisdiction and those of limited jurisdiction. The former have as a part of their jurisdiction the right to determine whether the special case before them comes within their general jurisdiction, the latter have the limits of their juris- diction fixed with precision, and are bound to con- fine themselves within such limits. In the former case the judge can not be held liable for mere error, but may be liable if he acted maliciously and cor- ruptly with knowledge that he had not jurisdiction ; in the latter case the judge may be held liable for his error, as well as for malice and corruption. Judicial officers often have imposed upon them duties which are merely ministerial. As to such they do not act judicially. For example, after a bill of exceptions has been settled, the signing of it by the judge is a ministerial act and may be enforced by mandamus. It is a general rule that for failure to perform ministerial acts, judges are liable the same as other ministerial officers. § 345. Public duties by private persons.— There is a class of duties that are assumed by private persons or corporations, in consideration of the grant to them of certain privileges at the hands of the. state. These duties are generally, if not wholly, for the primary benefit of individuals of the community, rather than for the benefit of the public as a whole. Among these are the duties of common carriers, inn- keepers, water companies and gas companies. Such persons or corporations are bound to permit the en- § 346 WRONGS TO CIVIL AND POLITICAL RIGHTS. 22 1 joyment of their privileges to all individuals of the community upon impartial regulations, and for a violation of such impartiality they may he held liable at the suit of an individual specially injured. Where, as in case of railroads, water and gas com- panies, valuable public rights have been granted to the person or corporation, the courts may sometimes compel by mandamus the performance of the public duty. There is, however, a margin of discretion within which there may be discrimination. For ex- ample, a common carrier or innkeeper may exclude a person who is dangerous, or offensive to the sense of decency of others. Separate accommodations may be lawfully maintained for women and for men. § 34G. The right to own property. — Upon this fundamental right belonging to every citizen depends the security and well-being of the community. Without it the social system, as now organized, could not be maintained. Obviously there is nothing that a private person can do to infringe upon this right. The only question is how far may the state impose valid limitations upon it. So far as its own creatures are concerned, viz., cor- porations, it may, by the creating act or in pursuance of power therein reserved, make any limitations that it chooses as to the right to own property or may withhold such right altogether. As to individual citizens, the state lias no power to diminish this right, except only where, in the exer- cise of what is called the police power, it does so for the public benefit. Hence it is valid for the legisla- ture to declare that there may be no ownership of 222 ELEMENTARY LAW. § 347 devices to be used for gambling or other immoral purposes. § 347. The rig-lit to make contracts. — This, like the right to own property, is a fundamental one and the law aims to protect it to the fullest degree con- sistent with good order and morals. It is, however, subject to the power of the state. The state may by general statutes adopt valid regulations for and even prohibit certain classes of contracts. By the statute of frauds it renders certain classes of contracts un- enforceable. It may prohibit the employment of infants in certain kinds of business; it may deny the power to infants or married women to make con- tracts; it may prohibit women from engaging in the saloon business or from being employed therein. For such legislation, if constitutional, there can be redress. If unconstitutional the only redress is to have the statute so declared by the court. If individuals impair this right, the law affords remedy by civil suit and sometimes by a criminal prosecution. Whoever, by any wrongful act prevents another from engaging in business or making contracts may be held liable for the wrong to the person thereby injured. Generally these wrongs are incidental to an act that is a wrong upon other grounds; as libel, slander, assault and battery, or imprisonment; and in such cases the wrong will be remediable upon such other grounds, the injury to the right to do business or to contract being considered by way of increasing damages. § 348. The right to labor and employ labor, and the right to engage in business. — This class, under the § 348 WRONGS TO CIVIL AND POLITICAL RIGHTS. 223 right to make contracts, is peculiarly liable to viola- tion by individuals through wrongs that are not reme- diable upon other independent grounds, and a sep- arate consideration is therefore proper. As has been heretofore stated, mere threats by one individ- ual against another are not actionable civilly. The reason is, not that the}' are not wrong, but that the injury is ordinarily so inconsiderable that the law will not concern itself with giving a remedy. That threats are nevertheless a wrong is shown by the fact that in an assault and battery proof of them may be given to show a plaintiff to have been the aggressor, and thereby diminish damages, and by the fact that where one through threats has accomplished a pur- pose he could not have otherwise accomplished, such threats constitute a principal element of the wrong. Threats may make an act unlawful that without them might be innocent. Whenever they are used so as to effect greater injury than would occur when they are mere threats between man and man, they may become actionable. The right to labor and. employ labor, and the right to engage in any business, is often interfered with, through the combinations of individuals. This may be by strikes, lockouts or other concerted action. The question is, when are such combinations lawful or unlawful. The purposes of such combination may be (1) to prevent an employer from hiring whom he pleases, (2) to prevent a laborer from hiring to whom he pleases, (3) to prevent a laborer from working at certain kinds of employment, (4) to pre- vent a business man from engaging in a certain busi- ness ; or the purpose may be the reverse of each. 224 ELEMENTARY LAW. § 349 The principle is the same in all and the law in rela- tion to strikes will be illustrative. § 349. Strikes. — Under the early English decisions the rule was that though any one was entitled to quit service when he pleased, yet if two or more agreed that they would quit together such agreement would be a legal wrong. It was called a criminal conspiracy. Some of the early American cases adopted these de- cisions as the law. With the progress of society, the rule has been greatly modified and made more liberal in favor of those combining. It is now the law that workmen may as a body agree not to work except on certain conditions, and in pursuance of such agree- ment may quit service and they will not be guilty of an unlawful act, so long as they confine themselves to peaceable methods. It seems, however, by some late federal decisions, that if the quitting necessarily involves the breach of contract, or if the time of quitting be fixed so as to cause the greatest damage, a combination to that end may be unlawful. The means used must at all events be peaceable. As soon as threats, menaces and intimidation enter into the methods of the combination, there is an ac- tionable wrong, and all the participators may be subject to civil as well as criminal liability for con- spiracy. § 350. The remedy.— Wherever it is shown that an unlawful conspiracy exists, a civil action is main- tainable against the wrong-doers, and the injuries sustained are recoverable as damages. More effective and prompt remedy, however, is by the writ of injunction. CHAPTER XXIX. FRAUD. § 351. Kinds of fraud. — It is every one's right to have others exercise good faith toward him and to re- frain from violating the trust and confidence that he may place in them. The social fabric rests upon the maintenance of this right. It is evidently im- practicable, however, for the law to enforce perfectly honest and fair dealing under all circumstances. The inquiry must be, how far does the law take cog- nizance of or undertake to remedy violations ? This is the subject of frauds and deceptions. Wrongs of this kind may exist where the parties , are not upon terms of equality, and the injured per- son is by reason of some special relation entitled to repose more than usual confidence in the wrong-doer. Or such wrongs may be where the parties do not occupy any special relation toward each other. As to - both classes, the wrong may consist in either affirm- ative conduct, as where one makes a false statement misleading another, or in negative conduct, as where one who ought to speak is silent. § 352. Frauds in confidential relations. — Where parties are upon any special terms of relationship under which one is entitled to place peculiar reliance upon the other, the law will closely scrutinize trans- actions between them, and may hold any violation of 15 (225) 226 ELEMENTARY LAW. § 353 confidence to be a legal wrong. Some of these rela- tions will be separately considered. The principles are analogous in all. § 353. Husband and wife. — To this, the most con- fidential of all relations, the law gives a jealous protection. Communications between husband and wife are held sacred, and no matter how great may be the interests that seem to demand it, the law will not compel a disclosure. Nevertheless, as between themselves, no legal remedy is given for a violation of such confidences. For it is deemed better policy to leave the observance of confidences between hus- band and wife to their own sense of what is proper. Any attempt at legal redress would probably cause greater evils than it would cure. So far as concerns dealings between husband and wife in relation to their property interests, it is evi- dent that they must always, to a greater or less degree, be affected by the influence of the marriage relation. While the law recognizes with approval a reasonable use of such influence, no unfair use of it will be permitted. As a rule, the man being the stronger and more experienced in business affairs, there is less reason to suspect an undue controlling influence on the part of the wife. On the other hand, a husband is presumed to have a great influence and control; so that, in any transactions as to the wife's property, the law will examine most closely, and if there be found any evidence whatever of unfairness or bad faith, relief will be granted. § 354. Parties engaged to marry. — This relation establishes a confidence which, though not of so high a degree as marriage, may be the basis for accom- §355 FRAUD. oo 7 plishing a wrong. The confidence is such as will quiet any apprehension of fraudulent practices. If a man, who is incapacitated to marry, as by having already a wife, or having negro blood, should engage himself to marry a woman, and should in- duce her to consummate a supposed marriage, he would be liable in damages to her. It would not be necessary to show any active misstatement or decep- tion. The relation of confidence precludes the ne- cessity of any inquiry by the woman. And if, under a promise of marriage which he does not intend to fulfill, a man accomplishes the seduction of a woman, damages are given on account of the breach of trust. Where there is an engagement to marry, the parties are each entitled to take into consideration the pe- cuniary circumstances of the other. If one there- upon should make a secret conveyance of property, so that the marriage is of less pecuniary benefit to the other, there is a right of action for such fraudu- lent practice. And if, while under engagement to marry, one should use the relation of confidence for the purpose of obtaining the other's property, the law affords re- dress in an action for damages or to recover the property. § 355. Parties haying illegal sexual relations. — Although persons living in illegal sexual relations are both in the wrong, and although no contract will be enforced which has for its consideration such relation, nevertheless the law recognizes that there is under such circumstances an opportunity for one to take undue advantage of the other, through mis- use of confidence reposed. Business transactions 228 ELEMENTARY LAW. § 356 between such persons are open to suspicion, and unless the party benefited shows that no advantage was taken, the law will afford a remedy, either by restoring to the injured party what was lost, or by giving damages. §356. Parent and child. — Inasmuch as an- in- fant's dealings with his property are voidable, a parent can not acquire any advantage through his influence over the infant. The transaction would be invalid, simply from want of power in the infant. But after maturity of the child, there may still be an influence by the parent, and if such influence and relation of confidence be used to obtain an undue advantage in any transaction between the parent and child, the child may have redress by appeal to the courts. Such relation of confidence may also exist in favor of the parent in old age, and he will be protected in a sim- ilar way against the machinations of his mature off- spring. § 357. Trustees. — The relation of trustee may be created either by the party himself, or by some indi- vidual for his benefit, or by judicial action. Execu- tors and administrators, guardians, assignees, re- ceivers, partners, agents for sale of property, and the like, are all trustees as much as if they were ex- pressly so named. In every case the trustee is se- lected on account of confidence reposed in him ; and. the law requires of the trustee perfect good faith and integrity in the discharge of his obligations. It is an elementary principle that a trustee is permitted to do nothing whereby he personally reaps an advantage to the detriment of his trust. Hence, whenever he deals with his beneficiary, the transaction will be deemed § 358 FRAUD. -J29 fraudulent, unless he shows that he made full dis- closure of all matters that he knew or ought to know, and that the transaction was in fact a fair one. It is necessary that he shall have put the beneficiary on terms of perfect equality with him. Whenever a trustee sells property of the trust, or makes contracts in relation thereto, he is not permitted either directly or indirectly to make a profit to himself. He can not, either himself or through a third person, be- come the purchaser at his sale, without being held guilty of fraud. The beneficiary has the option to declare the sale void, or to affirm it, if he deem it to his advantage. In cases where the confidential relation is of such a character that its influence can be supposed to con- tinue after the relation has in fact terminated, subse- quent dealings between the parties may be held to be not on equal terms, and for any misuse of the influ- ence, the court may declare the transactions fraudu- lent. §358. Principal and agent. — The relation of principal and agent is one of trust. The agent is bound to the same degree of fidelity and good faith as any other trustee. There are, however, certain additional obligations in this relation, owing to the fact that both principal and agent have reciprocal duties to perform, whereas the ordinary relation of trustee and beneficiary calls for performance of duties by the trustee only. The principal owes the duty to the agent not to lead him into danger or loss. For instance, a master is liable if he subjects his servant to unknown risks in machinery or buildings, and a principal is liable if he causes his agent innocently to 230 ELEMENTARY LAW. § 359 do a wrong to another and thereby incur loss. These and the like may amount to frauds upon the servants or agents. § 359. Partners. — Partners are in some respects trustees for each other. They can not make profit to themselves individually at the expense of the part- nership, and are bound to make full disclosures to each other. In some respects a partner acts as agent for the partnership, and there exist between him and his partners the reciprocal duties of principal and agent. § 360. Corporations. — Officers of corporations oc- cupy the relation of trustees and agents to both the corporation itself and to the individual stockholders, and they are held to discharge their duties with the fidelity and integrity required of other trustees or agents. Wherever a fraud is committed by them, the right of action to redress the same is in the cor- poration, if the wrong affects the corporate body as a whole, or in individual stockholders if the wrong- is to individual interests. In equity the suit for a corporate wrong may be brought by individual stock- holders for the benefit of all, if the wrong-doers are the governing officers themselves, or if the govern- ing officers refuse to bring the suit. Among the frauds that may be committed by cor- porate officers for which the stockholders may have redress are the following : Where the governing officers persistently and knowingly exceed the corporate powers. Where the officers refuse to furnish proper infor- mation or give false statements. §3G1 FRAUD. 231 Where access to the books of the corporation is denied. Where governing officers become purchasers from or sellers to the corporation, to its detriment. Where the governing officers allow secret advan- tages to part of the stockholders or themselves, to the injury of other stockholders, or where they mis- use or waste the assets. § 361. Attorneys, physicians and clergymen. — For the discharge of these professional duties it is necessary that there should be a high degree of con- fidence reposed by those who ask their aid. Without such confidence it would often be impossible to secure any benefit from the services required. The law not only favors, but protects to the fullest degree all communications made to secure such services. Xot only does the law refuse to compel the professional man to disclose what was told him in confidence, but if the confidence is violated by his voluntary dis- closure, a remedy in damages may be given for the injury done. The confidence reposed begets a strong influence by the professional adviser. If in any business dealings between them any undue advantage is taken, the law will rectify the wrong by compelling the wrong-doer to make restitution or by giving dam- ages against him. § 362. Persons of weak mind. — It is not intended here to refer to persons so idiotic and mentally dis- eased as to be incapable of contracting or giving con- sent. Such persons are not in any proper sense the victims of fraud. Fraud presupposes some intelli- 232 ELEMENTARY LAW. § 3G2 gence, enough at least to be misled. The acts of idiots are simply void. There are, however, persons whose intellectual power, though feeble, is sufficient for carrying on some of the affairs of business. Their acts are not void. The law recognizes that such persons are not upon terms of equality with their fellows, and there- fore justly requires of every person who deals with them a high degree of good faith. Acts that might not be held deceptive when practiced on a person of average intellect will be held fraudulent as to one of defective mental powers. The least undue ad- vantage or unfairness taken by one in his dealings with the weakminded, will be laid hold of by the law as a ground for giving redress. Persons intoxicated fall into the same category with those of feeble intellect. Whoever deals with a drunken person is held to take upon himself the burden of showing good faith. The greater the de- gree of intoxication, the greater is the necessity for exercising a scrupulous good faith. And to the extent that their powers may be inter- fered with by defects, the blind and the deaf stand within the protection of the law. It is to be noted that the case of persons of weak powers differs slightly from the ordinary one of trust in this : In the usual case of trust, the trustee is specially chosen, and extraordinary confidence is actually reposed in him ; whereas, in case of persons of weak powers, it often happens that there was really no confidence placed whatever, but in fact the weaker one may have been suspicious, and resisting so far as was within his power. The duty of good §363 FRAUD. 233 faith to the weak is not upon any special person, bul upon any and every person who may chance to deal with them. The similarity of principles upon which relief is granted makes it proper to include this topic under the head of frauds in confidential relations. Under confidential relations, an active duty is im- posed upon the one trusted, and it follows that a fraud may be as easily, and in fact is most often, committed by negative rather than affirmative con- duct. The law holds the trustee equally responsible if he fails to speak or act where he should do so, as where he engages in positive misleading practices. The person for whose benefit the trust exists need not usually exercise any care, but may without in- quiry rely upon the trustee. § 363. Fraud and deception between equals. — As has been stated, the reason why so complete and careful redress is given for frauds done under confidential relations is, that in such relations the victim is off his guard and more or less in the power of the wrong- doer. Where no such confidential relation and hence no misuse of power exists, there is usually less need for the interposition of the courts. The parties being upon equal terms are able and are expected to use due care in protecting themselves. As a general rule, the law will refuse aid to one whose pretended loss by fraud is attributable to his own failure to ex- ercise ordinary diligence and foresight. The ques- tion now is, what are the frauds which the law will redress, and what is the ordinary diligence required of every one ? § 364. Definition. — Fraud or deceit is any trick. collusion, contrivance, false representation or under- 234 ELEMENTARY LAW. § 365 hand practice used for the injury of another. It need not be by words. Any positive conduct may be the equivalent of a verbal statement and be a de- ception. And in some cases silence or inaction may be sufficient to accomplish the fraudulent purpose. § 365. Fraud by silence. — In transactions between equals, the mere silence or inaction of one will not be regarded as a fraud, even though by speaking or acting he could have saved or prevented the other from error and loss. As for instance, if one knows there is a valuable bed of ore upon another's land, and without disclosing his knowledge buys the land, such silence is no fraud; for every one is supposed to be entitled to the gains he may make through su- perior knowledge, so long as he does not engage in underhand practices or tricks. If, however, the silence occurs in connection with any act or state- ment that gives it point and meaning it may amount to a fraud; as for example, if one stands by and allows his property to be sold as the property of an- other, or if one is referred to as knowing a statement to be true, and he remains silent in such a way as to create the impression of affirmance. So if one pro- fess to state all of the facts and intentionally omits material parts, it is a fraud. By universal accept- ance there are certain acts and statements that pre- suppose the existence of certain other facts, for instance, the giving of a check upon a bank, even though nothing be said, amounts to the statement that there are funds in the bank for paying it, and if there are not, there may be a gross fraud. While a seller of goods is not always bound to inquire for what purpose the goods are intended to be used, yet § 366 FRAUD. 235 if it is apparent or the seller is informed that the goods are to be used for a specific purpose, the act of selling them will be equivalent to a statement that they are fit for the use intended. In such cases it is the seller's duty to inform the buyer of defects not open to observation of the buyer, and silence may be a fraud. An example of this is the sale to a con- sumer of provisions apparently sound, but known by the dealer to be wholly unfit; the buyer is not negli- gent for omitting inquiry as to their fitness, and the seller's silence on the point amounts to a fraud. § 36G. Equal opportunities for knowledge. — Where one party has equal opportunities with the other for knowing or ascertaining the truth, the gen- eral rule is that he must avail himself of his oppor- tunities, or be left remediless, if through his want of diligence he is deceived. The decisions are not altogether harmonious, as to what will constitute equal opportunities, and what degree of diligence will be required. It is well settled, however, that if one party by any device disarms the other's sus- picions, and induces him to refrain from making any examination he would otherwise have made, relief will be given for the fraud. If the subject as to which a representation is made is not at hand, or if it be of such a nature that an examination is not practicable, there will be no want of diligence in re- lying upon the representations made, but if they are false the transaction will be fraudulent. § 367. Elements of fraud. — In order to make out a cause of action for fraud or deceit, the following elements must concur : 236 ELEMENTARY LAW. § 368 1st. That the defendant made a false representa- tion of a material fact. 2d. That the defendant had knowledge of its falsity. 3d. That the defendant intended it to be acted upon by plaintiff. 4th. That the plaintiff, believing it true, acted upon it to his damage. These elements will be considered in detail. § 368. Representations— A distinction must be borne in mind between a representation and a war- ranty. A warranty is part of the contract itself, to be enforced in the same way that the contract is en- forced. A representation is not part of the contract, but is one of the reasons or inducements for making a contract. The breach of warranty is remedied by an action on the contract. A false representation is remedied as a tort. Although upon the same state of facts there may be a warranty, as well as repre- sentation, and the party injured may elect which remedy he will pursue, it does not follow that in all cases of breach of warranty there has been false rep- resentation. It is sometimes of great importance whether the cause of action is upon one or the other. Where the transaction in question is upon writings, the meaning intended by the parties must generally be gathered from the writings, and there will there- fore be little difficulty. Where the matter is oral, however, the question is more doubtful, and must be left to a jury to decide, in the light of all the sur- rounding circumstances. § 369. Clearness and certainty. — In order to be a false representation, the words or conduct used must generally be clear and certain and not of vague and § 370 fraud. 237 indefinite import. They must carry a sufficiently definite meaning, so that a man of average intelli- gence would act on them. Indefinite and vague state- ments ought to put an ordinarily prudent person on his guard and upon inquiry ; and if put on inquiry he can have no cause of action, for if he inquired he must have ascertained, and if he did not inquire his negligence defeats him. § 370. Matter of law. — A misrepresentation of a matter of law is usually not in law a fraud, for it is supposed that all men's opportunities for knowledge in this respect are equal. If, however, it is clear that the opportunities are not equal, there may be a fraud. As for example, if the statement be made by an attorney witli intent to deceive, or perhaps if made by any one professing familiarity with the law to one who is clearly ig- norant. Persons are not supposed to have equal op- portunity to know foreign laws, and a false state- ment in regard thereto may be a fraud. § 371 . Matter of opinion. — As a rule, mere expres- sions of opinion, even though false, are not to be re- garded as representations of fact, and will not amount to fraud. The question frequently arises upon state- ments as to value; they will usually be held to be mere expressions of opinion, for each party has an equal right and ought to form his own opinion. If, however, one has peculiar means of knowledge, as an expert, his false statement of value may be a fraud. And if property is at a distance and a purchaser is induced to refrain from making examination, but to rely on the seller's false statement as to value, it may be a fraud. The decisions are conflicting upon this 238 ELEMENTARY LAW. § 372 subject, but it is generally agreed that false state- ments of any facts that enter into the question of value will be a fraud, as for example, misrepresenta- tion as to cost or what the price was on previous sale. § 372. Matters of fact. — In order to amount to a fraud the false representation must have been of a fact, i. e., something existent or non-existent in the present or past. Representations as to matters in the future are not actionable for fraud; for such things can not be saidto have existence. Statements as to the future can be no more than promises, or mere predictions. If they are construed as prom- ises, they must be enforced as contracts, not reme- died as frauds; and if they are predictions they are merely opinions, which the law will not recognize as instruments of fraud. § 373. Fraudulent promises. — Although the gen- eral rule is well established that a promise unfulfilled is not a fraud nor the evidence of fraud, yet it must be admitted that in actual business affairs a promise is often used as the principal means of committing a deception. In recognition of this, some of the courts, though not all, have attempted to escape the rigor of the rule. It has in some states been held that, if there is a present fraudulent intent not to keep the promise, there is a fraud; for example, if one should buy goods and promise to pay for them, having the secret intention not to pay for them, this would be a false statement as to a present fact, namely, the intent. The decisions are not uniform, however. Many courts hold that the law can not recognize as a fact the present intent as to a future act. § 374 FRAUD. § 374. Materiality. — It is essential that the mis- representation shall have been material, i. e., it must have influenced and been a controlling reason fur the transaction. It need not, however, have been the sole or even the principal inducement. Its materi- ality is made to appear sufficiently, if in the judg- ment of a reasonable person the false statement was one of the reasons for acting. § 375. Falsity. — The representation must have been false, but it need not have been literally false. If such words were used as would carry to an aver- age man the false meaning, they would be effective for the fraudulent purpose. Indeed a fraud might be accomplished by the use of words true in a literal sense, but false in the sense that would be commonly given them. § 37G. Wrong-doer's knowledge. — If one inno- cently and upon reasonable grounds makes a state- ment, he can not be deemed guilty of a fraud even though the statement turn out to be false. He must have had some knowledge of the falsity. A state- ment will be regarded as false to defendant's knowl- edge, (1) if he had actual knowledge, (2) if he recklessly stated something as true when he had no grounds one way or the other, (3) if he stated some- thing to be true of his own knowledge when lie had only a belief. In each of these cases the defendant created in the mind of the plaintiff the impression that the defendant actually knew about the fact. There is another class in which the defendant may actually have had no bad motive and yet be deemed guilty of fraud, namely, where he was so specially situated that he was bound to know the 240 ELEMENTARY LAW. § 377 truth. Examples of the first three classes will easily suggest themselves. An example of the last class would be the case of one assuming to act as agent with certain powers; it is his duty to know his au- thority, and he is liable for any excesses even though he act under an honest belief that he had the au- thority. § 377. Wrong-doer's intent that the representa- tion be acted on. — It is essential, to constitute a fraud in the legal sense, that the representation shall have been made with the intent that it should be relied, and acted upon. This intent is to be gathered from the circumstances of the case. Where the repre- sentation is made between the parties themselves in a transaction, it is presumed that it was intended to be acted on, and no further proof is necessary in or- der to show such intention than that the defendant made the misstatement with knowledge of its falsity. But when the representation is made by a third per- son, such presumption does notarise, and there must be some proof that the person intended the misstate- ment to be relied on, or knew or had reason to know it was to be acted on. §378. Who entitled to rely on representations. — It would be obviously impracticable to permit per- sons to rely upon any and every misstatement they may hear or read, and to hold the author responsible for ensuing, damage. For, business operations and even social intercourse would involve such risk as to be unsafe. The law wisely restricts the right of action for fraud to the persons who were intended to be influenced by the misrepresentation. If one who was not intended to be influenced nevertheless acts §379 fraud. 241 and is injured by a misrepresentation, he is reme- diless. There are cases, however, where the whole public are intended to be influenced, as where cor- porations publish false prospectuses. In such cases any individual of the public who relies thereon and is injured has a right of action against the authors of the misrepresentation. § 379. Representation must have been acted on. — It is self-evident that if the misrepresentation is not acted upon, any damage that results can not be attributed to it. If it appears that the party com- plaining did not at all rely on the misstatement, whether because he did not believe it, or because he preferred to examine for himself, there is no right of action. If, however, the misrepresentation formed any material part, even though slight, of the in- ducement for entering into the transaction, the whole is tainted with the fraud and remedy will be given. § 380. Injured party's belief. — It is essential, in order to make out a case of fraud to show that the injured person believed the misstatement to be true. Of course, if he knew it was false, there is an end to the action. And so, if by the exercise of ordi- nary diligence he could have known the truth, he can not complain that he was defrauded. If he did not know and was prevented from exercising ordi- nary diligence by any devices or tricks of the wrong- doer, his belief in the false statement would be justifiable. As a general rule, a person is entitled to rely on a statement when it is made to him for the purpose of having him rely on it, and he is not chargeable with 16 242 ELEMENTARY LAV,'. §381 negligence if he does not make examination for him- self. But there are some obvious precautions that every one ought to take, as for instance, one ought to read an instrument before signing it, and failure to do so would be such negligence as would bar a re- covery for fraud unless the person is for any reason unable to read or prevented by a clear trick from reading. And it is held that if the opportunity for verification is immediately at hand, it is one's duty to make examination rather than rely on a state- ment. § 381. Damage. — It is an essential of the cause of action for a fraud that there shall have been some damage done by acting on the misrepresentation. It is not sufficient that damage may occur in the future, it must have occurred. § 382. The remedies.— The law will redress a fraud, either by way of action, or by way of defense. The injured person may recover damages for his in- jury, he may recover back what he has been de- frauded of, or he may have injunction against the wrong-doer's bringing an action, or against his dis- posing of the property fraudulently obtained. If an action has been brought by the wrong-doer upon the fraudulent transaction, the injured person may plead the fraud as a defense. In many cases of fraud, the law remedies the wrong by way of estoppel, that is to say, it compels the wrong-doer to abide by his false state- ment, and will not permit him to show it to be false. § 383. Personal injuries through fraud.— As has been shown under the head of assault and battery, it is usually a good defense to show that plaintiff con- sented to the act ; but if the consent was obtained by § 383 FRAUD. fraud, the defense is overcome. The fraud in such case is the essential thing' giving a right of action. If one person knowingly hands another an explosive, and the latter, being ignorant, is without fault in- jured, the former is guilty of a gross fraud ; the ac- tion, however, would be for an assault and battery, or for negligence. And so, where one leaves ex- posed anything that is dangerous, whether on his own premises or elsewhere, in such a manner as to create an appearance of safety, and in consequence injury occurs to innocent persons, it is clear that the most important element of wrong is the deception ; yet the action would properly be considered as one for negligence or for nuisance. Where fraud pro- duces personal injury, there is generally some other ground than fraud upon which the case may rest. It is conceivable, however, that there might be a case in which a malevolent person could by fraud alone cause direct personal injury, and which would be re- dressed upon the ground of fraud and deception. The usual field for fraud is that of property and con- tracts. CHAPTER XXX. NUISANCE. § 384. How related to negligence. — Nuisance may be described as some use of one's property or rights that is carried beyond the limits which a just regard to the welfare of others prescribes. Negligence may be described as the failure to use ordinary care in the performance of some duty en- joined by law, whereby injury results. Although the wrongs of nuisance and of negligence are in their nature essentially different and require a separate consideration, yet they have certain points of similarity and of difference which it will be in- structive to bring into comparison. They are alike in that they may affect either the per- son or property. They are further alike in that the wrong-doer does not primarily seek to destroy or take away the rights or property of the injured one, but the injury consists usually in only an impairment of the rights or property. The injury done is indirect, that is to say, the injury done is either not immediately at the hands of the wrong-doer, or not within his purposes, but generally occurs as the secondary ef- fect of some wrongful act. It is not essential in either that there shall have been any evil motive ; indeed, the legal wrong of nuisance, or of negligence, (244) § 385 NUISANCE. 245 may exist, although the actual intent was praise- worthy. Among the points in which they differ, nuisance generally implies some duration of wrong-doing ; negligence is usually from single acts or omissions. In nuisance the injury done may have been inten- tional or unintentional ; in negligence it is essential that the precise injury shall have been unintended. In nuisance the question is as to the lawfulness of the act itself, in other words whether there is any right to do the act at all ; in negligence the right to do the act is not generally in dispute, but the inquiry is as to the manner of doing it. The line of demarkation between the principles that control the two classes of wrong is clear, yet the wrongs may co-exist under the same state of facts, and it frequently happens that one is involved as an essential element of the other. For example, a properly constructed railroad crossing in a street is not a nuisance, but if, through negligence in keeping it in repair, it becomes an obstruction, it will be a nuisance. §385. Nuisance defined. — The word means "an- noyance." A common definition is, "anything which worketh hurt, inconvenience or damage to an- other." Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of life or property, is a nuisance. The definitions are unavoidably too comprehensive. Many wrongs that seem to be in- cluded within the bounds of the definition of nuisance are clearly within other classes that have been hereto- 246 ELEMENTARY LAW. § 385 fore considered. An assault and battery is injurious to health and offensive to the senses; a trespass inter- feres with the comfortable enjoyment of property ; a libel worketh hurt, inconvenience and damage, but these are not nuisances. Only such wrongs falling within the definition as do not fall under other dis- tinct heads are to be treated as nuisances. A thing may be a nuisance ( 1 ) causing personal discomfort, as by interfering, with one's quiet, or personal freedom, or affecting in an injurious way the senses, nerves or health; (2) causing material injury to property, as by loss of trade, deterioration of values, complete or partial destruction of prop- erty. In determining whether or not a given thing is a nuisance, there will be found to be some differ- ence, when viewed as to its effect upon the person or upon property. Whether an act causing mere personal discomfort is or is not a nuisance, generally depends upon the question whether, under the circumstances, it is rea- sonable; for, it is obvious that the carrying on of daily business operations necessarily involves some discomfort to neighbors. If one resides in a manu- facturing district he must be content to endure more annoyance than would be permissible in a district used for residence purposes only. The discomforts are supposed to be outweighed by the advantage of having business conducted in such place. To be un- lawful, the act must be one causing or threatening some sensible physical annoyance; if only mental disquietude is involved, there will be no nuisance. The annoyance can not, however, be allowed to ex- ceed what is reasonable; whenever it does so it will §380 nuisance. 247 be a nuisance. Whether the annoyance does exceed what is reasonable is not to be determined by the standard of the people specially affected. It is not a question of the notions of any particular persons, whether they be over fastidious or over stupid. The standard to be taken is that of average persons of the community. When the question is whether a thing is a nui- sance by causing injury to property, the test to be generally applied is whether the injury is visible or sensible. If the injury is of the visible character, even though slight, the thing will be a nuisance, and it will be no defense to show that the business is being conducted in as reasonable a manner as possi- ble. It is unlawful for one to use his property so as to injure his neighbors. §386. "Coming to a nuisance." — As has been stated, the locality of a business very largely deter- mines the question as to whether it is a nuisance or not. What would be a nuisance in a thickly popu- lated place may be none at all in a place sparsely settled, as, in the outskirts of a town. There may, however, be a change in the surroundings. The town by gradual and natural increase may spread so that the locality of the business in question becomes thickly populated. The question arises, what is the effect upon the business ? The argument would be that there has been no change in the business, and that the act of strangers in coming to the place ought not to make that a nuisance which was not a nui- sance before. Formerly this argument prevailed in the courts, and it was held there was no right of action. Now, however, the law is settled the 248 ELEMENTARY LAW. § 387 other way. It is uniformly held that the author of a nuisance is not protected by the fact that he was on the ground first, and that the injured person "came to the nuisance." The reason for the rule as now established is that the owner of the vacant land is also entitled to protection, and if his vendees must take subject to the nuisance, the value of his land is im- paired. § 387. The intent or motive immaterial. — Inas- much as the test for nuisance is whether the thing done is lawful or unlawful, it is generally immate- rial what was the motive. If the act be one that it is lawful to do, it can not be deemed a nuisance merely because it was done from bad motives. For example, every man has a right to keep surface water on his own land, and even though his doing so necessarily injures lower lying land that formerly depended on it for irrigation, there can be no action for the injury. The converse also holds good. If the act be one that does in fact create a nuisance, it is actionable even though done with the best motives, and even though it is highly beneficial or necessary to the public. The motive is, however, considered to some degree where the act in question is one which merely affects personal comfort, so that a noise that is necessary to a proper business may be held to be no nuisance, when if the same noise were wantonly made for the express purpose of annoying it would be a nuisance. And while malice is not an essential of the cause of action for nuisance, it may always be involved upon the question of exemplary damages. § 388. Care or negligence in nuisance. — In nui- §389 NUISANCE. 240 sance, the question of care or negligence in doing the act is not necessarily involved. If the act be of such a character that it amounts to a nuisance, it is actionable even though the highest degree of car!.' has been exercised. For instance, where a factory emits poisonous gas, it is no answer to show that the business can not be otherwise conducted and that the highest degree of care is used to prevent the escape of the gas. Where, however, the question is of a nuisance affecting only the physical comfort, it is sometimes of controlling importance whether due care has been exercised. Care is in such cases involved in the same way that intent or motive may be involved. For example, the smoke from a mill may be declared to be a nuisance where it ap- pears that by the exercise of ordinary care it could be rendered almost inoffensive. AY here any state of affairs is lawful and inoffen- sive, and becomes offensive only by reason of its not being maintained in proper condition, the question of care or negligence is important. In such cases the unlawfulness of the nuisance would consist in the negligence of its origin, and if there was no neg- ligence there would be no liability for nuisance. For it would be a highly inconvenient rule that would hold a man culpable where in spite of care and dili- gence his property suddenly becomes injurious. §389. What may be nuisances. — Reasonable noises are not nuisances. In order to become unlaw- ful, they must be unreasonable in their character, or be made at unreasonable hours. The ringing of church bells if in the day-time has been held to be not a nui- sance, but if in the night-time has been held to be a 250 ELEMENTARY LAW. § S8d nuisance. The noises of a drinking-saloon were held to be a nuisance by day or night. The blowing of a trumpet at night or the barking of a dog at night have been held to be nuisances. Smoke, dust, smells and noxious gases, causing sensible and physical discomfort, are nuisances. It is not necessary to show that health is being im- paired thereby, the discomfort is sufficient to fix the character of the act as a nuisance. Fumes from burning old clothes, smoke from brick kilns, dead animals left unburied, cattle yards and pig-pens, cess-pools, vaults, livery stables, gas works, pools of stagnant water, excessive heat maintained to the dis- comfort of neighbors, collecting crowds in the streets by means of exhibitions, may be nuisances. Things dangerous may be nuisances, even before any actual injury has occurred, as thepesthouse in a populous district, the keeping of explosives or in- flammable things in such a way as to be dangerous, fires negligently kept, blasting rocks, setting spring guns and traps, whether on one's own land or not, provided they are so placed as to menace the safety of other persons. Polluting the water of springs or streams, so as to render it unfit for use or offensive to the senses, is a nuisance. The same is true of underground streams and percolating water. Interfering with the natural flow of water in reg- ular channels, whether by unduly increasing or di- minishing it, may be a nuisance. One may not dam up a stream so as to throw the water back upon his neighbor. As to surface water, not in regular chan- nels, it is generally the law that one may keep it § 390 NUISANCE. 251 all upon his own land if he wish, but whether he can cause overflows by building embankments on his own land to prevent the surface water coming from his neighbor's land, is a disputed question. In some states it is held to be a nuisance, in others to be lawful Obstructing travel upon highways, whether streets or waterways, is a nuisance. § 390. Kinds of nuisance. — Considered with ref- erence to the persons affected by the unlawful act, a nuisance may be cither : 1st. Public or common. 2d. Private. 3d. Both public and private. Whether the nuisance be one or the other depends not on the character of the act, but upon the cir- cumstances under which it is done and the effect produced. § 391. Public nuisance. — A public or common nuisance is punishable by the state and not by civil suit of individuals. It may be committed (1) upon the public premises, or (2) upon private premises in such manner as to interfere with the public. Its distinctive feature is that it affects the community in general, and that individuals affected do not sustain any peculiar or especial injury. An example of nuisance which is public only would be an indecent exhibition in a public park. § 392. Private nuisance. — A private nuisance is one that affects certain individuals only, or certain individuals in a peculiar or especial way. A purely private nuisance must generally be committed or maintained upon private premises. It is redressed 252 ELEMENTARY LAW. § 393 by civil suit of the person injured, and not by indict- ment. An example of purely private nuisance would be the injury of a neighbor's shade trees by noxious gases from a factory. § 393. Nuisances both public and private. — The unlawful act may be at one and the same time a public and a private nuisance, according as it is complained of by the state or by the individuals in- jured. The state may punish by indictment, and the individual injured may also recover in a civil suit. Neither remedy is exclusive of the other. As an example of nuisance having this double character, may be given the pollution of a public drinking place ; the public would be prevented from enjoying the water, and there would be a public nuisance ; if any individual should inadvertently drink of the polluted water and be thereby made sick, he would have a right of action as for a private nuisance. § 394. Authorized nuisances. — The right to main- tain a strictly private nuisance may be acquired by twenty years uninterrupted continuance of the nuisance. No shorter time will be sufficient to give any rights. But, when the full time has elapsed, the right to maintain the nuisance is complete, and it can not then be lost by any discontinuance short of twenty years. If the nuisance be public, no right to maintain it can be acquired by lapse of time, and this is true, even though it be also a private nui- sance. What would otherwise be nuisances may sometimes be authorized and made lawful by the act of the state. As to nuisances strictly public, no one has the right to complain except the state, and the legis- § 395 NUISANCE. 253 lature may surrender this right by declaring the act in question to he lawful or hy commanding such act to he done. Any act done under authority of an act of the legislature can not he a public nuisance. In case of private nuisances the power of the legis- lature does not extend so far. The legislature can not make lawful any act the effect of which would be to take away or impair the rights of property without compensation therefor. Subject to this lim- itation, it may, however, declare what shall or shall not be private nuisances, and the enactments will be valid. §395. Obstruction of highways. — Nuisance by obstructing and interfering with highways may be either public or private in effect, or may be both. Whether it is punishable criminally as a public nui- sance is generally a matter of statutory enactment. In so far as the question of private nuisance by ob- struction of highways is concerned, the well settled rule is, that whoever, without special authority, materially obstructs a highway or renders its use hazardous is liable to one who sustains a special in- jury thereby. The rule raises the following ques- tions, to be considered in order: 1. What is a highway ? 2. What is obstructing or rendering hazardous? 3. What is without special authority? 4. What is special injury? § 396. What is a highway? — It is the general name for all kinds of public ways, whether carriage ways, bridle ways, foot ways, navigable streams. It also includes bridges, turnpikes, railroads, canals and ferries, but the public rights in these cases are 254 ELEMENTARY LAW. § 397 complicated with the rights of the persons or corpo- rations controlling the ways, so that many other principles are involved in their obstruction. The public highways belong to the public for use from side to side and from end to end. They are entitled not only to free passage along the high- way, but over any portion of it not in actual use of some other traveler. § 397. Purprestures. — As already intimated, any- thing that prevents or interferes with the free passage by travelers is an obstruction. If the obstruction consist in enclosing a part or all of the public prem- ises and excluding travelers, it is called a purpres- ture. A purpresture is something more than a mere nuisance in that it involves not merely an annoyance to the public, but also a taking of public property. Hence although to constitute a mere nuisance it is necessary to show that some one or more have suf- fered actual injury or annoyance, the wrong of purpres- ture may be complete without putting the public or any person to any inconvenience whatever. All the other elements of a nuisance must be shown. Following may be given as examples of purpresture: Fencing in a part of the highway, building a house in the street, constructing a stairway to overhang an alley. § 398. What is an obstruction? — An obstruction need not involve taking possession of the highway. It is anything beyond a reasonable use of the high- way for purpose of passage, that interferes with travel. A railroad track in the street, posts or rail- ings along sidewalks may be nuisances. It is not essential that there shall be a physical obstruction of the surface of the highway. Any- §399 NUISANCE. 255 thing above or below or on the surface that interferes with the free use of the surface may be a nuisance. Cornices overhanging a sidewalk and bay-windows projecting high above the sidewalk have been held to be obstructions. § 399. Duration of the obstruction. — The obstruc- tion need not be permanent in character in order to constitute a nuisance. It is sufficient if the highway be used for an improper purpose or for an unreason- able time. Placing logs in the street over night, blocking the way by loading and unloading goods, if unreasonably prolonged ; a temporary ditch dug, or a rope temporarily stretched across a street, using the highway for pasturing cattle, may be nuisances. § 400. Objects near the highway. — The obstruction need not be within the bounds of the highway. If the object be so near as to interfere with and en- danger travel, it is an obstruction. The ruinous wall of a burned building, standing on private prem- ises, but menacing travelers on the highway, is a nuisance, and the same is true of objects near a high- way calculated to frighten horses. § 401. Authorized obstructions. — As has been shown, the state by its legislature may legitimate what would otherwise be a nuisance. And so the state may for the public benefit legitimate ob- structions in highways. But even when so author- ized by the state, if the obstruction amounts to a taking of private property, or imposing additional servitudes thereon, the property-owner is entitled to full compensation therefor. If the authority is strictly followed, the obstruction will not be a nuisance. For instance, an unauthorized railroad track would be 256 ELEMENTARY LAW. § 402 a nuisance in a street. If the track were built properly and under authority of the statute, it would be no nuisance, but the adjacent owners could recover for the added servitude. If, instead of being built prop- erly, the railroad track should contrary to authority be constructed many feet higher than the grade of the street, it would be a nuisance. If an individual who has the right to complain of an obstruction sanctions it, he can not afterwards object to it. As, if a property-owner consents to a railroad in a street, he can not afterwards have it abated as a nui- sance, and sometimes he is precluded from recover- ing damages therefor. If an authorized obstruction is suffered to become ruinous or out of repair, it may be called a nuisance, but the wrong is primarily one of negligence. § 402. The special injury. — In order to give a pri- vate right of action on account of an obstruction, there must be an injury that is special to the indi- vidual injured. If the injury is the same as is suf- fered by every one of the public, there can be no private right of action. In order to be special in the present sense, it is not enough that the injury be greater in degree than that suffered by the public, but it must be different in kind. So, for mere delay in a journey, or being compelled to take a more circuitous route on account of an obstruction, the weight of authority is that no action can be main- tained. For any member of the public would suffer the same inconvenience. But if through the delay the traveler sustains a peculiar loss, as the loss of a market, deterioration of perishable goods and the like, he may recover. If one's access to his property §403 NUISANCE. 257 is cut off, it is a special injury. And so are injuries to person or property received from collision with the obstruction. § 403. Remedies for nuisance. — Public or common nuisances are redressed by acriminal action, and it is often provided that judgment may be given to abate the nuisance. The remedies for private nuisance are three : 1st. Abatement by the act of the person injured. If he avails himself of this summary remedy he takes the risk of its being a nuisance, and will be liable for his mistake if it is not, and he is hi mud to act moderately and can not commit a breach of the peace. A private person is not justi- fied in abating a public nuisance, unless it is also a private nuisance as to him. 2d. Damages. The person injured may recover his actual damages from the wrong-doer, and if the nuisance be malicious or wanton he may also recover exemplary damages. The remedy by action for dam- ages is not barred by the person having abated the nuisance by his own act. Both remedies may be pursued. 3d. Injunction. It often happens that a judg- ment in damages will be an inadequate remedy, and in such cases a court of equity will grant an injunc- tion against the maintenance of the nuisance. This remedy will be given, however, only where the in- jury is of a serious and permanent character, and will usually be withheld where the nuisance is a busi- ness lawfully conducted, and the complainant will be left to his action for damages. 17 258 ELEMENTARY LAW. § 404 § 404. Evidence of nuisance. — Ordinarily the bur- den is upon the plaintiff to show the existence of the nuisance and also what the injurious effect is. Some things, however, are so uniformly and under all cir- cumstances offensive that the courts take notice without evidence that they are nuisances. These are called nuisances per se. Formerly, many things were regarded as nuisances per se, as things prejudi- cial to public morals, disreputable houses, saloons, things dangerous to life, powder magazines, nitro- glycerine works, and all material obstructions in highways. The tendency of the courts now is to re- strict rather than extend the limits of the phrase nuisance per se. And in many states some things that were formerly nuisances per se are not now so considered. But wherever the restriction has taken place, such nuisances are now regarded as prima facie nuisances, i. e., instead of requiring the plaintiff to show that they are injurious, the courts presume them to be and require the defendant to bear the burden of showing that they are not injurious. CHAPTER XXXI. NEGLIGENCE. § 405. Actionable negligence. — The word negli- gence as commonly used covers all cases of omission to do that which ought to be done, but in the legal sense the meaning must be narrowed. The law does not give a remedy for every case of omission. It is only as to such as the law redresses by way of action or defense that the term negligence should be ap- plied. § 406. Contract or tort. — Negligence may exist, 1st, as a pure tort, i. e. , a wrong not arising out of con- tract ; 2d, as a tort connected with a contract, but which may be treated as a wrong independent of contract ; and 3d, as a mere unintended breach of a contract involving no tort. Cases of the latter class, so far as legal redress is concerned, will amount to the same as any other breach of contract, and will therefore be considered in the chapter on contracts. In the second class the person injured usually has the right to choose whether he will treat the wrong as a mere breach of contract or as a tort, and if he chooses the former, the principles of contract con- trol, if the latter the principles of negligence. Under the head of negligence, therefore, will be here considered only wrongs of the first class, and (259) 260 ELEMENTARY LAW. § 407 such wrongs in the second class as are treated as torts. § 407. Elements of actionable negligence. — In or- der to constitute negligence there must be : 1. A legal duty to use care. 2. A breach of that duty. 3. Absence of distinct intention to produce the precise damage. To make it actionable there must be also : 4. Damage to the plaintiff. 5. The damage must be the proximate result. § 408. Definition. — Actionable negligence is the inadvertent failure of a legally responsible person to use ordinary care under the circumstances in observ- ing or performing a non-contractual duty implied by law, which failure is the proximate cause of injury to a person to whom the duty is due. The elements of the definition must be considered in detail. §409. The inadvertence. — A conscious failure to use ordinary care is a willful act, from which the law presumes an intent to injure. The willful doing of a wrongful act implies malice. When such a wrong occurs, the guilty person is liable for all the damages that result, even for what would be deemed too re- mote if the act had not been willful. Such a wrong is not one of negligence. The phrase, " willful negligence," though it has been much used, is by the best authorities regarded to be a contradiction in terms. It is true, however, that many wrongs are very close upon the line dividing willfulness and negligence, and whenever there has been willful- ness the plaintiff has the option to treat it as neg- ligence. He may understate his case and it §410 NEGLIGENCE. 261 would not be for the defendant to escape by showing his act to have been malicious. The uniform rule is that in an action for negligence there can be no ma- licious intent, or willfulness involved. §410. Inevitable accident. — Inadvertence does not, however, mean that the injury could not have been foreseen. It is not equivalent to inevitable accident. The latter occurs when the cause of the injury is so unusual that human foresight could not have foreseen nor guarded against it. To be guilty of negligence, the person must have been in some way in fault, otherwise the accident is as to him in- evitable. For instance, unknowingly carrying an explosive and handling it on the theory that it is innocent would not be negligence in the carrier. But if inevitable accident combine with any negligence in the person charged he will be liable. § 411. Ordinary care under the circumstances. — There can be no negligence unless there has been an absence of that degree of care which a person of or- dinary prudence is presumed to use under the partic- ular circumstances to avoid injury. Such care must be in proportion to the danger to be avoided and the consequences involved in its neglect. What is and what is not the requisite care must be determined from all the facts in each case, and from the nature of the duty owing. The same facts may at the same time amount to ordinary care as to one person and not as to another. For instance, if a land-owner has an unguarded pit on his land, and two persons fall into it, one of whom is a trespasser and the other an in- vited guest, as to the former there would be no neg- ligence, while as to the latter there would be. 262 ELEMENTARY LAW. §412 §412. No degrees in negligence. — The test is always whether ordinary care under the circum- stances has been exercised. The classification into gross, ordinary and slight negligence or care is confusing, and is of no substantial benefit to the inquiry in any special case. It is practically im- possible to draw a line between the classes and the classification, though formerly made by the courts, is now almost universally abandoned. It is true the duty owing may be greater in one case than an- other, and the same act may be sufficient to discharge the duty in one case which would be insufficient in another. Hence, the inquiry must always first be as to what is the duty owing. That settled, the only question is, was ordinary care exercised in the per- formance of that duty ? § 413. Acts or omissions. — Negligence may con- sist in either an act or an omission to act. In other words, ordinary care under the circumstances may require one to do an act, or to refrain from doing an act. The question is, what is the duty, positive or negative, and whichever it is, has the duty been violated ? In a wider sense every negligence is an omission, i. e., a. failure to discharge a duty owing. 414. Legally responsible person. — If a person is wholly incapable of exercising care in its legal sense, he can not be held guilty of negligence, and upon principle ought never to be held liable in damages for his act. There is an apparent exception in case of infants and lunatics, who, according to the state- ment of some writers, are liable for all their torts, including negligence. In most of the decided cases the infant or insane had capacity for some degree of J415 NEGLIGENCE. 263 care, and should have been held liable for failing to exercise such prudence as was possessed. In the re- maining cases, where the infant or insane was wholly incapacitated, the recovery of damages can be sus- tained, not on the ground of negligence in the afflicted one, but in his parents or guardians. The true rule is believed to be that a person incapable of exercising care is not liable for a failure to do so, but if there is any capacity at all, he must exercise such care as he is capable of. Consistent with the rule are the cases of uncon- scious agents, e. g., persons who without fault do not and can not know the danger, and act with only such care as their knowledge dictates. Persons un- der duress are not free to exercise any care, hence not guilty of negligence, but this must be confined to cases where free will is wholly taken away. Per- sons acting under sudden alarm from any cause that robs them of possession of their senses are not legally responsible. § 415. Intoxication. — Voluntary intoxication does not relieve one from exercising all the care he should have exercised if sober. His negligence begins with his becoming intoxicated, and he is responsible for the consequences. Instead of being an excuse, in- toxication has been held to be evidence tending to prove negligence. § 416. Physical infirmity.— Adults of sound mind are, so far as negligence is concerned, presumed to be equally capable of exercising ordinary care. A man of dull mind is charged with the same kind and de- gree of care as is a man of brilliant intellect. Phys- ical infirmities, however, must be taken into consider- 264 ELEMENTARY LAW. § 417 ation. No one is bound for a failure to exercise a sense that he has not. But he is bound to make up for his defect as best he can by his other senses. While it can not be stated as a rule that less care is required of a woman than of a man, it very often happens, especially in cases involving physical or nervous power, that sex is of importance, in de- termining what is ordinary care under the circum- stances. § 417. The person to whom the duty is owing. — In order to constitute actionable negligence there must have been a duty owing to the party complain- ing. The fact that there has been a violation of a duty owing to one person does not give another person a right of action therefor, even though the latter receive injury. For instance, a land-owner owes the duty to his invited guests to guard them against the danger of a pit on his land, but he owes no such duty to a trespasser, and will not be liable if the latter falls into the pit. § 418. The duty. — Of course, if the act in ques- tion does not violate any duty, there can be no ac- tion. For example, a traveler on a highway, for his own convenience makes a temporary bridge over a ditch ; he owes no duty to any one to build the bridge in any particular way, or to build it at all. Hence he is not liable to another traveler who after- wards tries to cross and is irjured. § 419. The duty implied by law. — In order to be actionable as negligence, the duty that is violated must be one implied by law, independent of con- tract. Though there may be a contract involved, yet the wrong done must be so far separable from § 420 NEGLIGENCE. 265 the contract as to give an independent right of ac- tion. For example, a man makes a contract with a railroad company to cany him and his servant. There is no contract with the servant. But there is the duty implied by law from the relation of passen- ger and carrier. For any injury the servant may recover, because this duty implied by law has been violated. And the master, if injured, may recover damages on the same ground. Though there was a contract with the master, there was also the duty implied by law from the relation of passenger and carrier. Hence the master could recover for the negligence as a tort, or he could recover for the breach of contract. § 420. The damage. — Unless some substantial in- jury was done there can be no action for negligence. Damage is an essential element; and it is obvious that the damage must have been to the plaintiff spe- cially. If from any careless act the plaintiff is in- jured only in the same kind and degree as the whole public there will be no cause of action. § 421. Cause and effect. — The connection of cause and effect between the breach of duty and the injury must be established, otherwise the negligence is not actionable. It must be shown that but for the breach of duty the injury would not have happened. But while this is necessary to be shown, it is not enough. The plaintiff must go further and show that the breach of duty was an efficient cause. For example, if a passenger carrier is guilty of delay so that he arrives at a place on the road where a sudden storm injures the passenger, it might be evident that the injury would not have happened but for the negli- 266 ELEMENTARY LAW. § 422 gent delay; and yet it is also clear that such an injury might equally well happen where the carrier is unusu- ally diligent. The storm and not the carrier's delay is the efficient cause of the injury. It is a uniform rule, however, that if the defendant's act was an efficient cause, he is not relieved by the concurrence of other causes, whether they be called the negligence of others, inevitable accident, or the act of God. § 422. The legal connection. — Difficulty lies not only in tracing a causal connection, but also in determining whether the connection is sufficiently close to be cognizable by the law. Theoretically there is no end to the effect of an act, and no cause back of which another cause may not be found. The law, however, is practical and draws lines beyond which the search for cause or effect shall not be pros- ecuted. It requires that the act shall be shown to be the proximate, not the remote cause of the injury. § 423. Definition of proximate cause. — Proximate cause is that which in a natural and continuous se- quence, unbroken by any new cause, produces the event and without which the event would not have occurred. A remote cause is one which has so far expended itself that its influence in producing the injury is too minute for the law's notice; or a cause which some independent force merely took advantage of to ac- complish something not the probable or natural effect thereof. § 424. Plaintiff's own conduct. — In the search for the causes of an injury, it usually happens that some conduct of the person injured must be considered as § 425 NEGLIGENCE. 267 an agency. The question arises, how far does this affect the liability of others? It is obvious there is but one way in which plaintiff's conduct can have any effect in relieving other causes of injury, and that is by being itself a cause. In determining whether it is or is not a cause, the plaintiff's conduct is to be considered and weighed as a fact, in the same way with all the other facts in the case. And the same rules governing causal connect inn apply. If no relation of cause and effect can be shown between plaintiff's conduct and the injury, the right of action against others is un- affected, it matters not what may be plaintiff's fault or innocence in such conduct. If, on the other hand, plaintiff's conduct, whether wrongful or not, is shown to be an ellicient and superseding cause, it will be deemed the sole cause. Between these two are the cases in which plaintiff's conduct is an efficient, but not a superseding cause, and these embrace the subject of plaintiff's contrib- utory fault. It should be noted at the outset that no question can arise as to plaintiff's fault, except upon the assumption that there has been fault in the de- fendant ; for if the defendant is innocent, the case is at an end. It is a general rule, founded on the maxim, " no man shall take advantage of his own wrong," that if one is injured by the negligence of another, he can not recover damages unless he is himself free from fault proximately contributing to the injury. This fault in plaintiff may consist (1st) in an act un- lawful in itself, (2d) in negligence only. § 425. Plaintiff's unlawful act. — If an unlawful 268 ELEMENTARY LAW. § 426 act of the plaintiff be an efficient proximate cause of the injury to him, he can not recover against an- other person whose negligent act was also an efficient cause. For example, if two thieves break into a house with drawn pistols, and one by negligence shoot the other, no action could be maintained. It is essential," however, that the plaintiff's unlawful act be proximate in causation ; for if the unlawful act amount only to a condition or remote cause, it will not bar his action. For instance, though trav- eling on Sunday be made unlawful by statute, it would not bar an action against one who should neg- ligently frighten plaintiff's horse on Sunday. For it is not a natural sequence of Sunday travel that such injury should happen. §426. Contributory negligence. — The common law rule was that there could be no recovery for negligence of another if the injured person by his negligence proximately contributed to the injury. This rule has been adopted as the law in the federal courts and in the courts of nearly all of the states. Modifications exist in Illinois, Georgia, Kansas and Tennessee, under which there may be a recovery if the defendant was grossly negligent and the plaintiff negligent only to a slight degree. Wherever the com- mon law rule prevails any negligence of the plaintiff that proximately contributes as a cause of the injury will defeat a recovery. In some states plaintiff's negligence is for the defense to prove, in others the plaintiff must show its absence. § 427. Tests of contributory negligence. — In as- certaining whether negligence exists, the plaintiff's conduct must be viewed in the light of all other §428 NEGLIGENCE. 2G9 facts in the case, and in general is subject to the same tests as is the defendant's conduct. There must have been a failure by plaintiff to use ordinary care, or the accident is, so far as his responsibility goes, inevitable. There must have been a want of such ordinary care as was required under the partic- ular circumstances. The classification into slight, ordinary and gross is generally abandoned here, as it is where defendant's negligence is the question. The kind and degree of care depends on the facts in each case. The plaintiff's negligence may have been an act or omission. Subject to the exceptions made under the doctrine of imputable negligence, which will be hereafter considered, the plaintiff must have been legally responsible for his conduct. Voluntary intoxication does not relieve the plaintiff from exer- cising all the care he should have exercised if sober. Physical infirmities are taken into account, and while plaintiff is not expected to use powers that he does not possess, he is bound so far as possible to make up for defective powers by the use of those he has, and it is essential that the plaintiff's conduct be a proximate cause of the injury. § 428. Plaintiff's knowledge of danger. — The fact that plaintiff knew there was danger is not conclu- sive that he was guilty of contributory negligence. A man may be fully conscious of danger, and yet be in the exercise of ordinary care under the circum- stances. Some risks must always be taken; the question is, what risks will a prudent man take? § 420. Danger incurred to save life or in dis- charge of duty. — One who is saving the life of an- other in peril from the defendant's negligence is not 270 ELEMENTARY LAW. § 430 guilty of contributory negligence, unless the attempt to save is so rash as to be practically certain to result in injury, or, as is sometimes held, unless the person to be saved was himself in the wrong. A son who tried to save the life of his father, who was negli- gently on a railroad track, was not allowed to recover against the railroad company for its negligence. One charged with the duty of caring for others is not guilty of contributory negligence even though he discharge that duty in the face of certain danger, provided, of course, that he could not have done his duty in any safer way. But a person so injured must himself have been free from any fault in creating the danger. So, an engineer who stays at his post to save passengers from a collision is not to be deemed guilty of contributory negligence, unless, for in- stance, he violated orders in starting and thereby brought on the collision. § 430. Persons of defective powers. — As has been shown, persons of defective powers are not guilty of negligence for failing to exercise more care than they are capable of exercising. This is equally true where the question is upon contributory negligence of such persons. It naturally follows that a correspondingly higher degree of care is required from all who deal with such persons. An act that would be ordinarily careful, if done toward a grown person, might be negligent if done toward a child. It is always pre- supposed, however, that the defective condition of the person was or ought to have been known. So that, an engineer would not be negligent for expect- ing a man to step off the track when he sounded the §431 NEGLIGENCE. 271 whistle, without checking speed, whereas, if lie had notice that the man was deaf, it would be negligence. §431. Misleading conduct. — A plaintiff is not chargeable with contributory negligence, whose er- roneous act was caused or induced by the misleading conduct of the defendant. If he has a right to rely and does rely upon defendant's verbal directions or conduct, assuring him of safety, he is blameless, pro- vided the danger is not obvious ; and where by the defendant's negligence a sudden danger confronts the plaintiff, he is not in fault if in the haste and alarm he does not choose the safest course, or even if he chooses the only dangerous course. § 432. Imputable negligence. — The principle on which the doctrine of imputable negligence rests is that the innocent person and the guilty per- son are identified as in a joint enterprise, by agency or by having the right to control. The case of saver and saved has been alluded to; the negli- gence of the one saved being imputed to the saver. The negligence of a servant is imputed to the master, for he has the right to control. Partners, whose goods are injured by negligence of another, can not recover if the negligence of one partner contributed, for his negligence is imputable to all. The cases of carrier and passenger, and of children, require a few words more. § 433. Passenger and carrier — Imputed negli- gence. — The old English rule, established by the case of Thorogood v. Bryan, was that in an action by a passenger against a third person for a negligent injury, the contributory negligence of the carrier will be imputed to the passenger. It was assumed 272 ELEMENTARY LAW. § 434 that a carrier is a passenger's servant in all cases. The rule has been overthrown in England, and is not in force in the United States courts, nor in most of the states. § 434. Children — Imputed negligence. — The ques- tion is only concerning children too young to be capable of exercising any care whatever ; for if they have any capacity at all they will be negligent for failing to exercise it, and at the same time will be responsible only for their own negligence. Whether the negligence of parents or custodians shall be im- puted to children who are themselves incapable of exercising care and hence incapable of negligence, is a question upon which the authorities are divided. The better reason is against imputing negligence in such case. § 435. Presumptions as to negligence. — As a rule negligence is not presumed, but must be proven. The mere fact that some one has been injured does not usually make it probable that any particular person has been negligent. But the circumstances under which an injury occurred may be such as to create a presumption of negligence, and throw the burden upon a certain person to prove himself without fault. If, judged by common human experience, a fact could not exist except by some negligence, the court will, in the absence of other evidence, de- clare that there was negligence. For instance, if a passenger is thrown down by the jerk of a street car, the presumption is that the jerk was by neg- ligence of the street car company ; if a boiler on a vessel explodes, it is presumed to have exploded by negligence of those in control. The presumption can §435 NEGLIGENCE. 273 always bo overcome by the defendant showing that in fact he exercised ordinary care under the circum- stances. Whether the presumption shall be made depends somewhat upon the nature of the duty owing and the degree of care required in its discharge. Where there is an obligation for especial care, the presumption of negligence will be made, when it would not under ordinary circumstances. For example, if a railroad train runs off the track and injures a passenger and a bystander, as to the passenger the presumption of negligence in the railroad company would arise, but not as to the bystander. 18 CHAPTER XXXII. ANIMALS. § 436. Injuries by animals. — The subject of in- jury by animals is in some respects peculiar, partak- ing as it does of the nature both of nuisance and negligence. In this place, injuries caused by the Voluntary act or purpose of the owner of the ani- mals, will not be considered, for such injuries would usually be deemed an assault and battery by the owner himself. In considering the law, a distinction must be kept in mind from the outset, between acts that are a trespass on land and acts that are not. § 437. Trespass upon land by animals. — Every unwarrantable entry by one's animals upon the land of another is a trespass, whether the land be en- closed or not. If any part of the animal cross the line the trespass is complete. § 438. Duty of owner at common law. — At com- mon law every owner of animals was bound at his peril to keep his animals from straying upon an- other's land. The duty was absolute, and was not discharged by the exercise of the highest degree of care. Hence, no question of negligence was in- volved. The absolute obligation attached, however, only as to such animals as, from their nature, were capable of damaging land or crops. And an excep- (274) §439 ANIMALS. 275 tion was made in favor of the owners driving cattle along a highway, and in such cases the liability was not absolute, but the owner was relieved if he exer- cised ordinary care to prevent the trespass. § 439. The law in the United States.— The com- mon law rule of absolute liability for injuries done by trespassing animals is generally in force in the United States. In some the wrong is not treated as negligence; in others it is called negligence, but the negligence is conclusively presumed from the fact of trespass. Statutes in the various states have modi- fied the English rule to some extent by requiring land-owners to maintain sufficient fences. § 440. Remedies. — In addition to the usual rem- edy by an action for damages, the land-owner was entitled to take possession of the trespassing animal and keep it until the damage was paid. Or he could drive the animal from his premises to the highway, using no more force than needful. For any excess he would in turn become liable himself. § 441. Animals not trespassing. — It was formerly held at common law that the owner of a wild beast, or a domestic animal known to be dangerous, was bound at his peril to keep it confined, and that it would be no defense that the owner exercised care to prevent injury. The dangerous animal was deemed a nuisance and the keeping it was an unlawful act. The present rule is that for injuries done by an animal, other than by trespass, the owner is not ab- solutely liable, but liable only for a failure to use ordinary care. Whether the animal be dangerous or tame, the owner is liable only for negligence. The care required must, of course, be proportioned 276 ELEMENTARY LAW. § 442 to the danger to be apprehended. In order to charge an owner or keeper for injuries by animals, it is nec- essary to show that he had knowledge of the dangerous propensity and failed to take proper precautions. § 442. Owner's knowledge of danger. — Distinc- tion is made, so far as the evidence of negligence in the owner is concerned, between (1) animals natu- rally vicious and ( 2 ) tame animals that have become vicious. As to naturally wild and vicious animals, the pre- sumption is conclusive that the owner knew them to be dangerous. As to animals that have broken through the tame- ness of their nature and become vicious, there is no presumption that the owner knew of the dangerous propensity, but proof of a single breach brought home to the owner's notice is sufficient. Thencefor- ward they are to be treated the same as naturally wild animals. As to tame domestic animals, the owner is bound only for a negligent failure to keep them confined, and then only for such injuries as from their nature they are likely to commit. CHAPTER XXXIII. HUSBAND AND WIFE. § 443. Right to marry. — A refusal to perform a promise of marriage is only a breach of contract, the remedy for which is in general the same as for breach of any other contract. It sometimes happens that a fraud becomes mingled in the making or breaking of the promise, and in such case the whole becomes a tort. For example, if a man of negro blood, pre- tending to be white, should induce a white woman to enter into an engagement for marriage with him, such marriage being illegal, there would be a wrong whether the marriage ceremony were performed or not. The same would be true if one of the parties were already married. If third persons wrongfully interfere with mutual promises of marriage and break the engagement an action lies in favor of the one injured. But, gener- ally, such a wrong will be one that is actionable upon some other ground. § 444. Marriage. — Under this head there are to be considered, first, the formation of the relation ; second, the rights, duties and liabilities that arise out of marriage, and third, its dissolution. Marriage is defined to be the lawful union of one man with one woman, to the exclusion of all others, by a bond that can not be dissolved by the act of either .(277) 278 ELEMENTARY LAW. §445 or both, and can only be dissolved b} r the authority of the state. If the union be made as a temporary arrangement, to be ended at the pleasure of either party, it is not a marriage. § 445. Illegal marriage. — In order to be a valid marriage, the union must be lawful. Some persons are by law incompetent to marry and marriage be- tween certain classes is prohibited. The subject is controlled by statute of the various states, and the legislation has not been harmonious. Some of the principal grounds upon which marriages are pro- hibited will be stated. The marriage of near relations is forbidden, the degrees varying in the several states. Marriage be- tween a black and a white person is in many states void, in some others is punishable criminally. If either party is physically incapable of marriage, it is null and void. If either party have a wife or hus- band living, the second marriage is void. A mar- riage procured by force or fraud is voidable at the option of the party wronged. § 446. Marriage ceremony. — The law contemplates that the marriage ceremony shall be attended with some degree of publicity. Usually, only a judicial officer or minister of the gospel is by law allowed to solemnize marriage. A license by the state must usually be obtained. Violation of such provisions does not generally invalidate the marriage. Any marriage may be valid, if the parties in the presence of witnesses declare that they then and there take each other as husband and wife. § 447. Foreign marriages. — It is a well settled principle that a marriage valid where it is cele- §448 HUSBAND AND WIFE. 279 brated will be deemed valid everywhere, and one in- valid where celebrated will be deemed invalid every- where. This, however, is subject to the exception that if the marriage be deemed immoral or incestu- ous in the domicile of the parties, and they go into another country merely to evade the law of their own, the marriage will be void. § 448. Duties and rights of husband and wife. — The duty of the husband is to love and protect the wife, and to provide for her according to his means and condition. The duty of the wife is to love, honor and obey the husband. The husband ha.s the right to select the domicile, and it is the wife's duty to follow him. The husband has not now any right to chastise or restrain the wife, whatever may be her fault, and neither can be compelled to live with the other. It is the duty of the husband to provide for the offspring of the marriage, according to his station. By reason of the fiction of legal unity of husband and wife, and also upon grounds of public policy, husband and wife can not be compelled to, and will not be permitted to, testify as to communications made between them. And formerly they were not allowed to be witnesses for or against each other. At common law a husband was liable for his wife's antenuptial debts, and the wife could make no con- tract that bound her. In most of the states legisla- tion has greatly enlarged the powers and liabilities of married women, so that now ability seems to be the rule and disability the exception. A wife may be the agent of her husband, or the husband may be agent for the wife. A wife may always bind her husband for necessaries furnished her, and what 280 ELEMENTARY LAW. § 449 these are depends largely upon the condition of the parties. Formerly, a husband was liable for all wrongs done by his wife ; now, however, keeping pace with the enlargement of her rights and powers, a married woman is liable for her own wrongs, and the husbandis notliable except for such as he was party to. The law now is in nearly all states that a mar- ried woman may own property the same as if un- married, and but few limitations are placed upon her power to dispose of her property. § 449. Divorce. — Many of the duties owing from a husband or wife to the other are of imperfect legal obligation, in that performance of them can not be enforced, but for some of the grosser violations of the marriage contract, the law gives a remedy by divorc- ing the parties. What shall be cause for divorce is the subject of diverse statutes in the various states. Generally the causes are adultery, abandonment, fail- ure to provide, or cruelty. The suit to put an end to the marriage contract differs from the ordinary suit upon contract, in that the plaintiff's domicile, and not the defendant's, fixes the place for begin- ning suit. The reason for this is that there is more than a contract involved, namely, the legal status of the party complaining. On account of the interest the state has in the marriage, the parties have no legal right to agree upon a decree of divorce, but the court may, and usually does, hear some evidence. If cause for divorce exists, the court usually allows alimony to the wife, if she is the innocent one. It is usual in estimating alimony to base it upon the value of the wife's interest in her husband's property. §450 HUSBAND AND WIFE. 281 § 450. Injuries between husband and wife. — At common law the legal existence of the wife merged in her husband. No suit in her name could be main- tained unless he joined. There was scant redress by civil suit for any injury done by one to the other, and but few injuries were punished criminally. As has been said, the tendency of legislation has been to detroy the legal fiction that husband and wife are one person, and to treat them as separate individu- als, especially in their property rights. In some states statutes have placed the wife on such a footing that she can sue her husband for any civil wrong, the same as if unmarried. In others the courts have been conservative, and have restrained what was ap- parently the liberal intention of the legislature, and the wife is not allowed to sue her husband for many civil wrongs. § 451. Injuries by third person. — The right to re- cover for injuries done by a third person to husband or wife depended originally on the right each had to services of the other, and the damage consisted in the loss of such services. From the fact that at common law a wife was the inferior person, it followed that she suffered no legal damage by the lo??s of her husband's society and services, and hence she was not permitted to recover damages for any personal injuries to him, nor for his being enticed away whereby she was deprived of support. With the statutory enlargements of the wife's rights the courts have gradually enlarge:! her rights as to her husband's societv, until now it is generally 282 ELEMENTARY LAW § 451 held that the right to society and not the right to services is the true basis of recovery, and that a woman as well as a man may maintain an action for deprivation of the right. At common law a husband had a legal right in the services of his wife, and could recover damages for any injury to his right. The basis of recovery for the husband has been gradually changed, as in the wife's case, and now rests principally upon the right to the wife's society. So that now a husband may recover against one who, by artifice and fraud, alien- ates the affections of his wife, even though she con- tinue to reside with him and serve him. If one brings about the alienation of affection of another's wife, or a separation, it matters not how far the wife was blameworthy. The wrong to the husband is the same whether the wife consented or not. Mere giv- ing shelter to a wife who has left her husband will not raise a liability. But if any influence is used over the wife to continue the separation, or if access is denied to the husband, he may have an action. If, however, the husband has given cause for divorce, he can not be heard to complain. And if the hus- band in any manner connived at the seduction of his wife he can not recover damages therefor. Where a wife receives personal injuries which in- capacitate her for her duties, there are two kinds of damage, 1st, that suffered directly by the wife, 2d, that consequentially suffered by the husband. At common law, for the former, being her pain and suffering, humiliation and the like, the suit was in the name of both ; and for the latter, being §451 HUSBAND AND WIFE. 283 the loss of society and services, the husband sued alone. In either case the amount recovered belonged to the husband. Now, however, it is generally the law that the damages in the former case inure to the wife, and only in the latter case to the husband. CHAPTER XXXIV. PARENT AND CHILD. § 452. Legitimacy. — Children may be either le- gitimate or illegitimate, according as their parents are or are not lawful husband and wife ; or they may be adopted. Every child born to a wife during the continuance of the marriage relation is presumed to be the child of her husband. The presumption is not conclusive, however, and illegitimacy of the child may be established by proof, but only by clear and convincing proof. Illegitimate children born before marriage become legitimate upon marriage of their parents, but in England and a few states this is not the law. At common law, the children born of a void marriage were illegitimate, but it is generally provided by statute that if the marriage was entered into in good faith, the children shall be deemed legitimate. The common law did not recog- nize the adoption of children. Statutes in nearly all the states make no provision therefor. And gener- ally upon the adoption of a child, the adopting parent and the child have all the rights, duties and liabilities that exist between natural parent and child. § 453. Rights and duties of parent and child. — The mother of a bastard has the right to custody and control, and she is under obligation to support it ; (284) §454 PARENT AND CHILD. 285 its supposed father is not liable for its support, ex- cept under special proceedings provided by statute. At common law a bastard could not inherit either from his father or mother, but by statute the bastard now in most states inherits from the mother, and in some inherits from the father in the absence of other heirs. As to legitimate children, theduty of the parent, first the father, or if he be dead the mother, is to protect, edu- cate and maintain the child during minority. This duty resting upon the parent is legally a privilege rather than a duty, for the law only permits, but does not compel, the parent to perform it. No action is per- mitted by a child against a parent for any failure in these duties, even though the failure may be crimi- nally punishable. By way of compensation for. and in aid of the parent's duties, the law gives to the parent the custody, control and services of his minor chil- dren. He may moderately and reasonably correct or restrain the child. So long as he is a fit person, he is entitled to the custody of the child. All rights and duties as between parent and child end with the ma- jority of the child or emancipation, i. e., the agree- ment, express or implied, of the parent and child that the child may be treated as an adult. A parent is not liable for wrongs done by the child to other persons, unless done by the parent's direction, or in his service. Of course, a child can not be held liable for wrongs done by its parent. §454. Wrongs as between parent and child. — Whether a parent will be civilly liable for personal wrongs done to a child is not wholly settled. By ccme text-writers it is stated that there is no civil lia- 286 ELEMENTARY LAW. § 455 bility, so far as assault and battery or imprisonment is concerned, it being deemed safer to rely upon the natural affection of a parent. For any wrongs done by a parent to the property of his child, he is answerable the same as he would be to any other person. For any injury done by a child to its parent, whether to the person or property, the child will be civilly responsible to the same extent as it would be to any other person. § 455. Wrongs by third persons. — Whenever a third person does an injury to a parent or a child, there is a double loss, direct to the one, and conse- quential to the other. And the question is how are such wrongs done, and for what loss is the wrong- doer held responsible. These will be considered separately. § 456. Child's interest in the parent. — In the re- lation of parent and child, the general rule applies that the inferior has no rights in the superior, hence a child has no such interest in the parent as will support a suit by the child to recover for injuries to the parent. The only exception is in cases of inju- ries causing death, when the statute gives a right of recovery to the personal representative for the bene- fit of wife or child. This has been considered else- where. § 457. Parent's interest in the child. — The parent is entitled to the services of his child, and all the profits to be derived therefrom until majority. Who- ever incapacitates the child from rendering the serv- ice, causes legal damage to the parent, and is subject to an action. The right to recover is based on the §458 PARENT AND CHILD. 287 right to services and the duty to protect. At com- moil law the parent recovered only to the same extent that a master would recover for loss of services of his servant. Damage to the parent may arise by injuries that diminish the child's ability to serve, or by wholly depriving the parent of its services; and the latter may occur by enticing the child away or by causing its death. The last named wrong has been treated in a former section. § 458. Physical injuries to the child. — Any one who by a wrongful act injures the child so as to de- prive the parent of its services, or to cause loss through care and attendance upon it, is liable to the parent therefor. If the injury is of a continuing nature, the parent recovers not only the value of the services actually lost, but for the deprivation or im- pairment of services up to the age of twenty-one. In estimating the value of services the expense of supporting the child must be considered. It is only for loss of services that the parent recovers; for mere loss of happiness, comfort and society of the child, except so far as they can be viewed as services, there can be no recovery. The parent's anxiety, grief and sympathy for the child's injury are not elements of damage in a legal sense. For the child's suffering, mental anxiety and permanent injury or disfigure- ment, the parent has no right of action for his own benefit, the action for all such damage being in the name of the child itself and the recovery being for its own benefit. § 459. Enticing away the child. — The parent is entitled to the custody as well as the services of the 288 ELEMENTARY LAW. § 460 child ; and if a wrong-doer get possession of it, the parent may by legal proceedings have it restored to him. Whoever by force or artifice takes a child away from its parent is liable to the parent for the loss of its services. The recovery in such case is based upon the relation of master and servant, rather than upon the parental relation. For if the parent has emanci- pated the child, that is, given, to it the right to enjoy all the profits of its services, so that there is no longer the relation of master and servant, there is no right of recovery in favor of the parent. § 460. Seduction. — The wrong by seduction of a female child has some elements that distinguish it from other wrongs. The law has labored under some difficulties from which it has emerged but slowly. Under the common law the right of action was based purely upon the parent's right as a master to the services of his daughter as a servant. It fol- lowed from this, that while he could recover against a seducer, if his daughter resided at home, or was not actually in the service of some one else, he could not recover if another person were lawfully entitled to her services by contract. The law permitted the father to recover for the shame and humiliation con- sequent upon the seduction, but only in cases where he was entitled to recover on account of loss of serv- ices. Consequently, when she was in the service of another, the only damages recoverable were the loss of her time and the expenses, and these were re- coverable by the person who was entitled to the serv- ice or who paid the expenses. The anomaly was that the action was made to depend upon loss of services, §4G0 PARENT AND CHILD. 289 which generally were merely nominal, whereas the real injury for which the substantial damages were given was the shame and disgrace. To remedy this inconsistency statutes have been passed in most of the states giving the parent a right of action for the seduction of the daughter, whether or not the daughter be living with the parent, or the parent be entitled to her services. A further right of action is given to the woman seduced to sue for her own seduction. 19 CHAPTER XXXV. GUARDIAN AND WARD. § 461. Kinds of guardianship. — A guardian is one who has the care and management of either the per- son or property, or both, of a child during minority. At common law there were many kinds of guardian- ship, which have become obsolete. In the United States at present the law relating to guardianship is much the same for all the states. The following are to be considered : 1st. Natural guardians. 2d. Testamentary guardians. 3d. Legal guardians. 4th. Guardians ad litem. 5th. Prochein ami or next friend. § 462. Natural guardian. — By this is meant the father, or, on his death, the mother. None other can be natural guardian. The natural guardian has control of the person of the child, but not of its property. The title is, in fact, nothing more than another name for the natural right of a parent to the custody and control of the child. It adds noth- ing to the legal right. There is no action that may be brought for an infant by natural guardian, and whenever a parent sues as such on account of any injury to the child the recovery is for the benefit of the parent only. § 463. Testamentary guardian. — By this is meant the person named in a parent's will to be the guard- (290) §464 GUARDIAN AND WARD. 291 ian of a child. Such person simply has a prefer to be appointed the legal guardian, if all other things are equal. He has no powers unless appointed by the court, and when legally appointed his status is that of an ordinary legal guardian. § 4G4. Legal guardian. — By this is meant the per- son appointed to be guardian by the court having jurisdiction. Generally the father has the prefer- ence, then the mother, then the next of kin in order. The legal guardian always has exclusive control of the ward's property and sometimes of the ward's person. So long as the parent claims the custody of the child's person, the legal guardian has no right to it. But if the parents are dead, or unfit, the legal guardian is entitled to custody. The guardian's duty is to see that the ward is cared for and properly educated. As to the ward's estate, the guardian is bound to exercise care and diligence in managing it; must account from time to time to the court appointing him, and upon maturity of the ward must pay over and deliver to the ward the en- tire estate. The guardian is held to strict account- ability. Unauthorized acts of the guardian may be adopted if beneficial, or rejected if detrimental to the estate; and a guardian is not permitted to reap any personal benefit whatever out of the manage- ment of the estate, except what is allowed by the court as compensation for his services. Frauds of the guardian have been treated in a previous chapter. Among the guardian's duties are the collection of debts and the defense of all suits against the ward. What suits must and what may be brought in the name of the guardian for the infant, is regulated by 292 ELEMENTARY LAW. § 465 statute in the several states. In cases where the law does not permit the guardian to litigate for the infant or where though entitled he refuses to do so, it is generally provided that the action or defense may be made for the infant by guardian ad litem or next friend. § 465. Guardian ad litem. — After a suit is begun against an infant, and the infancy is disclosed to the court, the court will see to it that he is represented by a guardian. Whenever the legal guardian ap- pears for the infant a guardian ad litem is usuall} 7- not necessary. But in absence of the legal guardian the court appoints a guardian for the purposes of that suit only — a guardian ad litem. He is an officer of the court, may be removed at pleasure, has no power over the infant's person or propeiiy, has no power to admit or waive anything ; his functions be- ing only to see that the infant's case is fully pre- sented to the court for decision. The guardian ad litem is always for the defense. § 466. Next friend. — An infant is not permitted to maintain an action in his own name solely, if his disability is brought to the attention of the court. Wherever the legal guardian can not or will not bring suit for the infant, the infant must be repre- sented by his next friend. The infant may select, if he wishes, or, if suit is brought before the in- fant has selected, the court may appoint the next friend. Any one may act as next friend ; it is not confined to kin. The next friend is subject to control of the court, and may at any time be re- moved by the court and another appointed. One purpose in requiring a next friend for an infant §467 GUARDIAN AND WARD. 293 is that there may be some one responsible for the costs of the suit. The next friend is liable for costs while the infant is not. It is usually provided that there need be no next friend, where an infant is a joint plaintiff with adults. § 467. Rights of guardian and ward in each other. — A guardian has no right to the services of a ward, and unless the relation of master and servant exists, can not recover for his own benefit any damages on account of injuries to the ward. A ward has no interest in the guardian's services that will sustain an action by the ward against one who injures the guardian. § 468. Wrongs between guardian and ward. — As between each other, guardian and ward are answer- able for injuries done, to the same extent as if the relation did not exist. Except, however, that where the guardian has custody of the ward's person, he stands in loco parentis and has a larger right to re- strain and correct the ward. And also, where the influence of the guardian is misused, the relation enters as a factor into the duty owing and the wrong done. This is shown in the chapter on frauds. § 469. Guardian of the insane. — Analogous to the guardianship of infants is the guardianship of the insane. It is generally provided by statute that upon a ju- dicial determination of the insanity of a person, the court may appoint a guardian to take charge of the person and property of the insane. The duties of such guardians are the same in general as those of guardians of infants, and they are held to like ac- 294 ELEMENTARY LAW. I § 469 countability. It is their duty to appear for and de- fend suits against their insane wards. The guardianship may be terminated upon the restoration to sanity of the ward, which fact must be judicially determined in the same way that in- sanity was determined. CHAPTER XXXVI. MASTER AND SERVANT. § 470. Growth of the relation. — The relation of master and servant may exist between father and ehild, guardian and ward, husband and wife, or in fact between any persons capable of contracting. The relation arises out of contract made between them, by which the master acquires a legal authority and control over the servant. Originally, it was only a family right of no great importance, the servant always being a member of the master's household. But with the vast development of business enter- prises, the relation has been expanded to enormous dimensions, and is now one of the most important in the business world. It applies to every form of occupation in which one person's work is subject to the control and direction of another to whom he is responsible. § 471. Apprentices. — An apprentice is one who is bound out to a master to learn some trade, business or profession, the master being also bound to instruct and initiate him in the occupation. An apprentice may be either an adult or a minor. So far as an adult is concerned, he is bound by whatever contract he makes, and his rights and liabilities must be de- termined therefrom. So far as infants are concerned, (295) 296 ELEMENTARY LAW. § 472 the matter is regulated by statute in the several states which must be exactly followed. It is usual to require the articles of apprenticeship to be re- corded, and they must be signed by the parent or guardian, or in their absence they must be approved by the probate court. If the infant is over fourteen years of age, his assent and signature are generally required. The master acquires some of the rights of a parent over the infant apprentice, such as the right of moderate restraint and punishment, and being in loco parentis the master must care for the training, health and safety of the apprentice. In other re- spects, the rights and liabilities are the same as for ordinary masters and servants. § 472. Who is a master or servant? — It is not necessary that there be a definite term of service, nor that any wages be paid or due. And the relation may exist even where the services were volunteered, if they were of such nature that a contract can be implied. The test in all cases is the sort of control that is exercised over the work. The relation of master and servant exists when one has the right to control and direct the work of another who is em- ployed to render personal service otherwise than in pursuit of a separate calling. The emplo}^er may contract that the employe shall undertake to bring about a certain result and shall assume all responsi- bility for the means and method of the work. In such case the employe is not a servant, but an inde- pendent contractor. § 473. Independent contractor. — A person is not a servant, but an independent contractor, who is em- ployed, but is not subject to the order or control of the §474 MASTER AND SERVANT. 297 employer as to the method or means to be taken in doing the work. The general rule is that an em- ployer is not responsible for the acts of an independ- ent contractor. If, however, the employer dictates the method, or retains any direction or control over the contractor, he will to that extent be answerable for any injuries traceable to him. And if the work is unlawful in itself, or must necessarily cause the damage, the employer may be held liable jointly with the contractor. An independent contractor's liability to the employer for wrongs is no different from that of any stranger, except that he is bound to perform his contract. § 474. The contract between master and servant. — A general hiring without limitation is at common law a hiring by the year. From custom, or from the times of payment, the period may be held to be month- ly, weekly, or daily. If the time is expressly fixed, it controls, and both master and servant are bound to the performance of the contract. If the contract is for doing what is illegal it is void; so, also, if the hiring is for an immoral purpose; and if any essen- tial part of the consideration is illegal the whole contract is void. Contracts for personal services can not be specifically enforced, nor can they be as- signed or transferred without consent of both parties. Such contracts are always subject to the implied con- dition that the person shall be able to perform the service, and if he is disabled without his fault he is excused from further performance. In the ab- sence of stipulation or statute to the contrary, wages are payable at the end of each term of service. § 475. Termination of the relation. — In addition 298 ELEMENTARY LAW. § 475 to the termination by expiration of the time of service, or the death or disablement of either party, the contract of service may be put to an end, (1) by the master's discharging the servant, or (2) by the servant's abandoning the service. § 476. Discharge by the master. — The master may discharge the servant for sufficient cause. Just what is sufficient cause must depend upon the facts in each case. Generally, however, it is sufficient cause for discharge that the servant is guilty of dis- obedience, immoral conduct, incompetency, habitual negligence, drunkenness, fraudulent conduct and the like. In case of discharge for cause the general rule is that the servant is entitled to payment for what he has done up to the time of discharge, but is not entitled to any damages for the unexpired term. If the discharge be without good cause, the serv- ant is entitled not only to payment for the work actually done, but to damages for the loss of his wages during the unexpired term. He is bound, how- ever, to seek other employment. The measure of damages therefore is the unpaid balance of wages for the entire period, less what he might have earned elsewhere. § 477. Abandonment by the servant. — The servant is justified in abandoning the service, if he suffers ill usage at the hands of the master, or if the master refuses to allow him to work. These faults of the master are equivalent to a discharge, and the liability is measured accordingly. Sickness or inevitable accident disabling the serv- ant will justify an abandonment by the servant, but §478 MASTER AND SERVANT. 299 will entitle him to payment only fur what he has actually done. For an unjustifiable abandonment of servici the servant during a term of service, it was formerly the rule that as the price was entire and to be paid for the whole service, there could be no recovery for a part. The rule now in many states is that the servant may recover a proportionate part of the wages, less whatever damages the abandonment caused to the master. § 478. Wrongs independent of contract. — We pass now to the consideration of the tortious wrongs that involve the relation of master and servant. Such wrongs may create liability in the following ways, which will be considered in order : 1. Liability of third persons to the master. 2. Liability of third persons to the servant. 3. Master's liability for injury to others. 4. Servant's liability for injury to others. 5. Master's liability to servant for injuries (a) by master, (b) by persons for whom the master is an- swerable. 6. Servant's liability to master for injuries (a) to the master, (b) to others. § 479. Liability of third persons to the master. — A master has an action against one who wrongfully entices away his servant or prevents the performance of the servant's duty to the master; and this even though the relation of master and servant be deter- minable at will. One who harbors another's servant, intending thereby to wrongfully deprive the master of the service of the servant, may be liable. Where the wrong is one causing direct loss to the servant and consequential loss to the master, as in the case 300 ELEMENTARY LAW. § 4S0 of personal injury to the servant, each ma} r recover for his own damages. § 480. Liability of third persons to the servant. — A servant being the inferior has no such interest in the master as will sustain an action by the serv- ant for consequential damages from an injury to the master. The servant has a right of action against any one who by wrongful acts procures his discharge provided he can show damages. § 481. Master's liability for injury to others. — The question here is, for what acts and omissions of the servant is the master liable to other persons ? That the master is liable at all is upon the maxim, "He who acts through another acts himself." The wrongs done may have been either intended or un- intended by master or servant, and the servant may have acted in violation of or obedience to the master's orders. The persons injured may be strangers, to whom no special duty was owing, or persons to whom the master was under special obligation, such as passengers or guests at inns. Upon the nature of the wrong and the kind of duty owing depends the liability of the master. § 482. Intentional and unintentional injuries. — The general rule is that where the servant's acts are within the real or apparent scope of his employment, the master is responsible; otherwise not. Hence for willful and malicious acts of the servant the master is not generally liable, for such acts can not be sup- posed to be authorized. The rule for liability be- comes more stringent, however, if the master is under some special duty to the injured person, as in case of a passenger, and has delegated the performance of §483 MASTER AND SERVANT. 301 that duty to the servant. In such case the master is responsible for all injuries done by the servant, during the time of the service; hence the master may be liable even for malicious acts done in express violation of orders. § 483. Servant's liability for injuries to others. — For any negligence or unlawful act of a servant he is liable to the person injured whether the master is liable or not, and no matter what is the relation of the injured person to the master. There are cases in which the servant and master are both held liable, but in which, as between themselves, the master is liable over to the servant for any loss suffered by the servant. In such cases the servant must have acted in good faith and in obedience to the master's orders. § 484. Master's liability to the servant. — First, as to injuries by the master himself. While it is a privilege of the master to give a "character " for the servant, the servant suffers no legal damage if the certificate is refused, even though the refusal be arbitrary and unjust. For any injury resulting to a servant from the direct personal act of the master, the master is liable to the servant the same as though no such relation existed. For any failure of the master to perform the duty he owes to his servant, he is liable to the servant if injury results therefrom. § 485. Duties of master to servant. — The master owes the duty to his servant to exercise ordinary care in the following respects : In providing and maintaining a safe place to work and safe appliances to work with, in taking due precautions to prevent accidents, in guarding the servant against dangers unknown to him, in refraining from exposing the 302 ELEMENTARY LAW. J § 43(3 servant to unnecessary or unknown dangers, in em- ploying as his fellow-servants only competent per- sons, and in employing these in sufficient number. These are the principal duties, though others might be named. If the master exercise ordinary care in discharging his duties, he is not liable, though the servant be injured. § 486. Risks assumed by servant. — The servant as- sumes all risks that he ought to know are incident to the discharge of his duties, all risks from negli- gence and wrongs of his fellow-servants, and he is bound to use care himself. To some extent the serv- ant will be excused for incurring a danger under order of the master, but not if the danger be glaring, nor if it is fully known to the servant and voluntarily assumed. As a general rule, where the opportuni- ties of the servant for discovering danger are equal to the master's, the master is not liable. § 487. Fellow-servants. — If the master has exer- cised due care in selecting and retaining servants, he has done his duty. If, nevertheless, injury re- sults to one servant by the wrongful act or omission of another servant, the master is not liable. It is essential, however, that the servants shall have been within the same general employment, for if two serv- ants are engaged in occupations wholly independent of each other, they are not fellow-servants. And it is to be further noted that the fellow-servant rule ap- plies only to the servants personally ; so that if the wife or child of a servant be injured by another servant, the master is held liable for both the direct and consequential injury. § 488. Vice-principal. — If, however, the person §489 MASTER AND SERVANT. 303 causing injury to the servant be discharging a duty which was owing from the master himself to the servant, he is regarded to that extent as the master. The name usually given is vice-principal. For any failure to discharge the duties he owes to his servant the master is liable, whether the act or omission which causes the injury be his own or his vice- principal's. A person may at the same time be a vice-principal and fellow-servant; the character of the act done determines in what capacity he acts. § 489. Servant's liability to master. — For any wrongful act, neglect or incompetency of a servant, which causes injury to the master's person or prop- erty, the servant is liable to the master, provided the master is not also in fault. If a servant exceed- the authority conferred upon him by the master, and so involves the master in loss the servant is liable. And a servant is liable to the master for any dam- ages which the master has been compelled to pay to a third person on account of the wrongful act or de- fault of the servant, provided the master is himself free from fault. CHAPTER XXXVII. WRONGS TO INCORPOREAL PROPERTY. §490. Incorporeal hereditaments. — Incorporeal hereditaments, or inheritable rights issuing out of corporeal property, have been described in a former chapter. These rights partake of the nature of the things out of which they issue, but, since the rights themselves can not be seen or handled, it is evident that they are incapable of direct injury. Whatever injury is done must be consequential. Hence the remedies for direct wrongs are not applicable to in- corporeal hereditaments. If one has a right of way across another's land, and it is interfered with so that he is deprived of its use, his remedy is not by ejectment, but by an action for the consequential damages or by an injunction. But where the conse- quence of a wrong to an incorporeal right is also an injury to corporeal property, the remedies as for a direct wrong may be had. For instance, every land- owner having an easement for lateral support, if his neighbor willfully and maliciously takes away the support and causes the land to fall, the owner may treat it as a direct wrong done by force to his land. § 491. Other incorporeal rights. — There is an im- portant class of incorporeal rights which do not issue out of property in the sense that incorporeal heredi- taments do, but on the contrary are the source out of (304) §492 WRONGS To INCORPOREAL PROPERTY. 305 which the tangible property arises. This class em- braces the subjects of copyrights, patents and trade- marks. Public policy and the sense of justice dictate that one who creates anything should be permitted to enjoy the fruits of his labors. It is evident that in case of copyrights, patents and trade-marks, the sub- stantial benefit to be derived by the creator of the thing in question lies in his having the exclusive right to reproduce or use it. § 492. Statutory provisions. — The constitution of the United States gives power to congress to secure to authors and inventors the benefit from their crea- tions, for a limited time ; and congress has passed acts for the purpose. [Just what the provisions are as to the steps to be taken, it is not now material to inquire. Whenever the formalities prescribed are observed the writer or inventor has a monopoly for the period provided, and may have his remedy against one who infringes his right. He may procure an injunction, recover damages he has suffered, and recover profits made by others. § 493. Patents. — Without entering into the de- tails of patent law, a few general principles may be stated. A patent is given for an invention, namely something created by man. Natural processes and principles can not be patented. The thing must be new and useful. A new method of combining things to produce results may be patented. Infringement of patents may consist in making, using or selling the thing that is substantially cov- ered by the patent. The person infringing may he held liable, whether he knew or did not know the 20 306 ELEMENTARY LAW. § 494 article was patented. An exception is made in favor of persons making or using the article for purposes of experiment only. § 494. Copyrights.— The copyright laws apply to printing of any kind, pictures, music and statuary, and confer upon the author the exclusive right to make, use or sell copies or the originals. The ex- clusive right extends to the whole as well as every substantial part of the thing copyrighted. So that, if there is a copy or imitation of any substantial part, it will be an infringement. As to what is a substantial part, the facts in each case must deter- mine. The size of the part taken is not a decisive test, for the true value may be in the small part taken. For purposes of criticism, parts may be quoted, but if the review is a pretense for publishing a substantial copy, it is an infringement. Whoever infringes the copyright of another is liable, whether it is done innocently or not. The intent is in general immaterial. § 495. Rights independent of statutes.— The mo- nopoly granted under the copyright statute is en- joyed by the author after publication. Before publi- cation, however, an author has legal rights in the product of his intellect, and these rights were recog- nized before the copyright statutes. At common law, so long as an author did not pub- lish his work to the world or abandon it to the pub- lic, he retained the right as property to make such use of it as he saw fit. He might, without losing his right, permit others to make a limited use of it. Whoever without the author's consent used his work §496 WRONGS TO INCORPOREAL PROPERTY. 307 in whole or part was liable to the author in damaged and could be enjoined. § 496. Private letters. — Where letters have a lit- erary value the writer has the sole right to publish them, even though the legal title to the paper is in the recipient. If it is apparent that they were in- tended for publication, the recipient may also pub- lish them. Any attempt by others to publish them maybe restrained by injunction, or damages may be recovered for the publication. So far as a letter has value for historic purposes the recipient may use it. And all papers of every kind may be used by any one as evidence in any suit, no matter what may be their value. § 497. Trade-marks and trade names. — A trade- mark is a name, symbol or device used by a person to designate that certain goods or property are made by or used by him only, or that a particular business is conducted by him. The essential quality of a trademark is that it is arbitrary in form. If the mark is descriptive of any quality of the goods it is not valid as a trade-mark. It is intended as a sim- ple and convenient guide to customers. Whoever imitates the trade-mark and so palms off goods un- der false colors, commits a fraud upon the purchaser, and at the same time causes damage to the owner of the trade-mark, both by the profits he has lost and it may be by the injury to the reputation of his goods. This the law recognizes as a substantial damage, and the trade-mark is regarded as incorporeal property. The law of trade-marks is of comparatively recent origin, although the principles upon which it rests have been long settled as a part of the common law . 308 ELEMENTARY LAW. § 497 The remedy for infringement of trade-marks is practically the same as for infringement of patents, viz., damages for loss of profits, injunction, and re- covery of the profits made by the infringer. In the United States recent statutes have been passed authorizing the registry of trade-marks in some cases, and giving them greater value as evi- dence when registered than when not. The statutes are generally only declaratory of the common law, and all the remedies that formerly existed are pre- served. Though not a trade-mark technically, a trade name or sign will receive protection from the courts if it is not merely descriptive and contains no deceptive words or meaning, and a rival may be enjoined from using such name or sign so as to cause injury to the owner. By means of such trade names what is called the good will of a business is preserved and becomes a valuable property right. CHAPTER XXXVIII. WRONGS TO PERSONAL PROPERTY. § 498. Kinds of injuries.— Wrongs that may be done to the owner of personal property through fraud, negligence and nuisance have been consid- ered ; as have also the wrongs that may be done by mere breach of contract. There remain to be con- sidered wrongs : (1) By direct force injuring or disturbing the owner in his possession. (2) By conversion or depriving the owner of his property. ( 3 ) By neglect to restore to the owner upon de- mand property to which he is entitled. § 499. Trespass by force. — The first class of the wrongs named is known as a trespass by force or vi et ariii is. By this is intended only a direct injury by the unlawful forcible disturbance of another in his posses- sion of the property. This may amount to a partial or complete destruction of the property. The wrong going only to the possession, it follows that one who has'an interest in the property, but has not actual or constructive possession, is not entitled to com- plain of an injury as a trespass vi et armis, but the injury as to him should he redressed in some other form, as will be seen. (309) 310 ELEMENTARY LAW. § 500 500. Possession. — The possession referred to may be (1) that of the general owner, (2) that of one having a special property, as a bailee, mortgagee, etc., or (3) that of one having no title beyond mere peaceable possession. The possession of a servant or agent is in law the possession of the master or principal, and need not be considered as a distinct possession. Possession need not be actual. If one has the immediate right to possession, he has the general property and is said to have constructive possession. He may maintain an action for trespass against any wrong-doer, except the person who has the special property and actual possession. Where there is a special property in goods, either the general or special owner may sue a third person for injury to the goods. One who has mere peaceable possession has suffi- cient possession to warrant a suit for trespass against any wrong-doer except the owner. § 501. The force. — The force used may be by the wrong-doer personally, by his servants, or by his animals. It may be either express force, as in rob- bery, or implied force, as in the act of placing poison before animals. The degree of force is immaterial. To cut a rope tying a cow would be a trespass. It must moreover appear that the injury was proximate. § 502. Conversion. — Any distinct act of dominion wrongfully exerted by one person over another's property, in denial of his right, or inconsistent with it, is known as a conversion. It is the denial of the owner's right that distinguishes conversion from trespass, for trespass may sometimes be committed §503 WRONGS TO PERSONAL PROPERTY. 31 1 even though the owner's right to property and pos- session he fully conceded. Whether the act he for the benefit of the wrong-doer or a third person, and whether it be fur a temporary purpose or otherwise, it is a conversion, if the dominion of the owner be intentionally interfered with. It follows from this that many wrongs that are trespasses may, at plaint- iff's option, lie treated as conversions. Anything that is personal property, even though it have no value except to the owner, may be the subject of a conversion. Whoever has the mere possession of goods, provided the possession was not gained by force or fraud, is entitled to maintain an action for conversion against any one except the owner. And any one who has not the actual possession, but who has the right to immediate possession, may main- tain the action. § 503. Conversion by persons rightfully in posses- sion. — When a person who has a special property in goods, as a bailee, mortgagee, etc., does any act in excess of his authority, and inconsistent with the rights of the general owner, his acts may be treated as a conversion. If a mortgagee should sell the mortgaged property, as his own, and in denial of the mortgage it would be a conversion; if sold subject to the terms of the mortgage, however, it would not be. Whoever buys the property must ascertain the title. and if he takes possession and denies the owner's right, he is liable for conversion. The question of good faith is not involved. All who participate in the conversion, as seller or buyer, principal or agent, maybe held liable. But if one is innocently in pos- session of goods belonging to another, and, before 312 ELEMENTARY LAW. § 504 notice of the true owner, surrenders them to the per- son from whom he received them, he will not be liable for conversion. And if, after notice of the true ownership, he surrenders possession upon de- mand to the owner, he will not be held liable either to the owner or the person from whom he received them. § 504. Demand for possession. — It is a general rule that where one has obtained possession of goods by force or fraud, it is not necessary to demand pos- session from the wrong-doer before bringing suit ; and when the possession was originally rightful, but there has been such abuse or excess of authority that the whole becomes wrongful from the first, no de- mand need be made. If, however, one has rightful possession and does not deny the owner's title, it is essential in order to maintain the action that a de- mand shall have been made for possession, and a refusal to deliver. Such demand and refusal need not be express ; they may be implied from conduct. An attempt to take the property is usually a suffi- cient demand, and opposing the attempt is a suffi- cient refusal. § 505. Conversion by tenant in common. — As each tenant in common has a right to possession of the thing held in common, there can not be a con- version by one who merely withholds possession from the other. But anything that amounts to a loss or destruction of the property by fault of the one in possession may be a conversion. So it is generally held that a sale would be. In some states it is held that if the property be in its nature divisible, a de- §506 WRONGS TO PERSONAL PROPERTY. 313 mand by one owner for his share refused by the other would be enough to establish a conversion. § 50G. Legal process.— Whenever property is in- terfered with under color of legal process, the person interfering must confine himself within his lawful powers, and for any excess he may be held liable as for a conversion of the property. An officer of the law may without process take a thief together with the stolen property, or when he arrests a felon may take his weapons. But generally, in order to take property he must have process. When acting under legal process he can not be held liable as for conversion, if the process be issued by a court having jurisdiction, and be on its face with- out suspicious earmarks, and if he substantially fol- lows the command of the writ. If he exceeds or violates the command of the writ, as for instance by selling without notice or injuring the goods, he may be held liable for the conversion. A magistrate is liable for issuing process if he acts knowingly without jurisdiction, and a party who knowingly sets a magistrate or officer in motion to act without authority is liable. If property is sold at a judicial sale upon a void judgment or void pro- cess, the purchaser may be liable for conversion. § 507. Remedies. — The remedies permitted bylaw for injuries done to personal property are the follow- ing : 1. Recaption, i. e., the act of the owner in retaking possession without suit. This he is permitted to do provided he does not commit a breach of the peace, or trespass upon the lands of one who is not the wromi-doer. 314 ELEMENTARY LAW. § 507 2. By an action at law. The forms of action un- der which redress was given at common law were : Trespass, to recover damages for direct injuries to property ; trover, to recover damages for the wrongful taking or detention of property ; detinue, to recover the possession of the property itself ; replevin, to re- cover the possession as well as damages for taking property. Where the injury was indirect or conse- quential, the action was in "trespass on the case." 3. In some cases a court of equity granted an in- junction to prevent the doing or continuance of in- jury. The remedies named substantially exist in all the states ; the forms of the common law action have, however, been more or less modified and simplified by statutes. As a rule, the action being personal re- dress may be had wherever jurisdiction can be ac- quired over the wrong-doer, regardless of the place where the property is or the wrong was committed. CHAPTER XXXIX. WRONGS TO REAL PROPERTY. § 508. Ownership. — The owner of real estate is en- titled to dominion as against all the world; the person in possession is entitled to dominion as against all but the one havinga better right. Whoever interferes with his dominion may be treated as a wrong-doer. The injuries that may be done to an owner as to his real estate may be 1st, by putting or keeping him out of possession ; 2d, by injuring his land while in his possession. § 509. Dispossession. — Under the common law a classification of the wrongs of dispossession included some which, by reason of changes in the law, are now of little importance. Abatement, l. e., where on the death of a person a stranger entered before the heir, and intrusion, i. e., where a stranger en- tered before a remainderman or reversioner, were wrongs that now do not differ in legal effect from any other unlawful taking possession of land in ab- / sence of the owner. The reason for the former classification as distinct wrongs lies in the fact that formerly no ownership was full and complete without an entry; now, however, there is no interval and the title and complete ownership vest immediately. The wrong of disseizin, i. e., entering upon land and de- priving the owner of his possession, is the equivalent (315) 316 ELEMENTARY LAW. §510 of all wrongs wherein the entry was wrongful from the beginning, and continued to be so. The wrong may be committed by one who gains possession for a limited purpose and wrongfully exceeds the author- ity granted, whereby the entire possession is held to be wrongful from the beginning. § 510. Unlawful detention. — Where the original taking possession was not unlawful, but the wrong consists in detaining the possession, this is likewise a dispossession of the owner. This may happen, in case of a lease for a definite term or during the life of another person, by the expiration of the term or by the death of the person; the tenant then holding over without right. It may also happen in case of an estate upon condition where the non-performance of the condition forfeits the estate, and the tenant nevertheless holds the land. § 511. Remedies. — An owner's remedy for being deprived of possession of real estate may be by his own act or by legal process. He may by his own act enter upon and take possession of the land, provided he does not thereby commit a breach of the peace. He is not allowed the remedy by his own act, if the holder of the land has an apparent right to hold it, but in such cases the owner must resort to his rem- edy by action at law. Under the common law various forms of action were used for the recovery of real estate, but by judi- cial decision and legislative enactment, these forms have been gradually displaced and most of the law rela- tive to them is obsolete. Under modern law the almost universal remedy for trying the title to lands is the action for possession, and this has been so simplified §512 WRONGS TO REAL PROPERTY. 317 that it does not correspond to the cumbersome forms that prevailed under the old law. Where the title to the land is not in question, but only the right to pos- sess it, a simple and prompt remedy is generally provided in an action before a justice of peace for possession. An owner who has been deprived of possession is entitled by an action for damages to re- cover the profits of the land during the time the wrong-doer held possession, and it is usual to com- bine the claim fur damages with the suit for possession. § 512. Injuries to land without dispossession. — The wrongs to real estate that have been enumerated have been by depriving the owner of possession; it remains to consider how the owner's land may be damaged without affecting his title or possession. These wrongs may be done (1) by the tenant in pos- session to the damage of another who has an interest; or (2) by a stranger. Wrongs of the former class are called waste; of the latter class, may be either nuisance or trespass by breaking the close. These will be discussed in order. § 513. Waste. — Waste is the doing or permitting lasting damage to the property by the person in pos- session, to the injury of some other person who has an interest therein. It may be committed, for exam- ple, by a life tenant as against a remainderman. The interest which qualifies one to complain of waste must be a vested interest. § 514. Kinds of waste. — Waste may be voluntary or permissive. Instances of voluntary waste are: Pulling down houses in whole or part, cutting valu- able timber, removing a material part of the soil. In general a tenant is answerable for waste, even 318 ELEMENTARY LAW. §515 though the act be done by a stranger, but he has his remedy over against the stranger. Permissive waste arises by negligence. Where the tenant is under ob- ligation to keep the premises in repair, but negli- gently suffers the premises to became ruinous, it is waste. § 515. Remedies. — At common law waste worked the forfeiture of the estate of the tenant ; and such is still the law in some states. The most usual forms of remedy are the action for damages and injunction to prevent threatened or continued waste. § 516. Nuisance affecting land. — The nature of nuisance has been shown in the chapter treating of that subject. So far as relates to its effect upon real es- tate, a nuisance must cause some material and sensible injury to the property or its value. Anything done upon neighboring property, or upon highways so as to injuriously affect the property, may be deemed a nuisance. To unreasonably occupy the street in front of one's place of business and block the path, to carry on offensive business so that the property be- comes uninhabitable, or to do anything whereby the crops or trees on land are blighted is a nuisance. § 517. Remedies. — The redress for nuisances caus- ing damage to land is not different from that for other nuisances. The land-owner may abate the nui- sance, if he acts reasonably and without breach of the peace. He may recover damages and judgment abating the nuisance, or he may have injunction. § 518. Trespass upon land. — In the wrongs of nuisance the wrong-doer causes indirect or conse- quential injury without going upon the property itself. Where the injury results from the wrong- §519 WRONGS TO REAL PROPERTY. 319 doer going upon the land, the wrong is called a tres- pass by breaking the close. The owner, or the person in possession who is re- garded as the owner, is entitled to exclusive domin- ion over the land. He may repel any one who at- tempts to infringe his right. For his protection the law supposes that every man's land is inclosed, whether there actually be a fence or not; and when- ever the boundary line is crossed it is assumed that the close is broken and that damage has resulted. It may be generally stated, that every one who crosses the land-owner's boundary line is a trespasser by breaking the close unless he does so by lawful au- thority. § 519. The boundary line. — The boundary of land extends perpendicularly to the center of the earth and to the sky. Technically, an aeronaut would be a trespasser. Where the land is adjacent to a high- way, the rule is generally that the line extends to the center of the highway. The land-owner owns the soil underlying the highway, subject only to the public easement. Consequently, he may treat as a trespasser one who violates the easement, and he may recover against the public itself if additional servitude is imposed. If the land is adjacent to a stream, the line extends to the center of the stream, or, if a fresh water navigable stream or lake, to low- water mark only. Any one who takes trees or herbage from the high- way, or its soil, or who deposits material in the high- way, or who cuts ice from a stream, maybe liable as a trespasser to the adjacent land-owner. § 520. Who may be a trespasser. — It is not es- sential in order to make a man a trespasser that the 320 ELEMENTARY LAW. § 521 whole of his person shall cross the line. If any part of his person or anything physically under his con- trol pass the line it is sufficient. So, too, a man is answerable for the trespasses of his cattle, and for the trespasses of persons acting under his authority. 521. Lawful authority. — An enumeration of the cases where one has no right to cross a land-owner's line would be too large ; the law can be more easily ascertained by examining the cases where one is justified in entering. The right to enter is in law known as a license. License may be given (1st) im- pliedly by the owner, (2d) expressly by the owner, or (3d) by the law. These will be considered in the order stated. § 522. License impliedly given by the owner. — A dealer who exposes goods for sale impliedly author- izes the public to enter his store ; artisans, physi- cians, lawyers, who hold themselves out as ready to serve others, impliedly invite the public to enter. The owner of an easement has implied license to en- ter and repair it. And where a land-owner sells goods or is in wrongful possession of another's goods, there is an implied license to enter. Whoever holds him- self out in any way to naturally attract others to enter impliedly invites them to do so. Every land- owner impliedly licenses his neighbors and strangers to enter for any proper occasion, as business, social visits, to make inquiries and the like. The nature and extent of this implied license is controlled and measured by the kind of premises, the purpose of the entry and the general custom of the community. § 523. Express license by the owner. — A mere li- cense exists wherever the owner grants to another a § 524 WRONGS TO REAL PROPERTY. 321 right to enter, without giving him an interest in the land. Such a license is personal to the licensee and it is subject to revocation by the land-owner at any- time before it is acted on. But when acted on by the licensee, it is irrevocable to. the extent it has been acted on, though it may be revoked as to the part not acted on If the license is " coupled with an interest," as it is called, it can not be revoked. For instance, if a land-owner sell cattle on his land, giving the right to the owner to leave them for a certain time, visit them daily and take them away, the land-owner can not revoke the license. § 524. Effect of statute of frauds. — The rule that a license acted upon becomes irrevocable has been carried to the extent of practically overriding the statute of frauds in one respect. The statute of frauds provides that no conveyance of land <f time, with the double view of reforming the prisoner and deterring others from committing like offenses, and in cases of murder, high treason and other crimes of a heinous character, capital punishment is in- flicted. In many states the jury pass upon the ques- tion of the prisoner's guilt, and the court fixes the measure of punishment within the limits prescribed by the statute. In other states the jury have this power. In the federal courts the jury pass only 380 ELEMENTARY LAW. § 622 upon the question of the prisoner's guilt. Some- times, in addition to the penalties of fine and im- prisonment, the offender is disfranchised and is made incompetent to testify as a witness. § 622. Jurisdiction of crimes. — The jurisdiction to try and punish offenders against state laws is lodged in the courts of the state within whose borders the offenses are committed. Offenses against the laws of the United States, are within the exclusive jurisdiction of the federal courts within their respec- tive districts. This is what may be called geograph- ical jurisdiction. Jurisdiction may depend also on the class of crimes the court may take cognizance of. Petty offenses are tried by magistrates without the formality of indictment or information, while graver charges are only cognizable by superior courts, in which the indictment is preferred by the grand jury and the trial is by a petit jury. As to crimes com- mitted on the high seas, the jurisdiction of nations is determined by treaties and the law of nations. § 623. Territorial jurisdiction of crimes. — Ordi- narily, criminal laws have no force beyond the boun- daries of the state enacting the law. But cases arise where crimes are committed partly in one state or county and partly in another. If one enters into a conspiracy with others to commit a crime in another state, and the crime is committed, he may be tried and punished in the state where the crime is committed, though before the trial he may never have been person- ally within the limits of that state. So if one stands near a boundary line and shoots across it, and the shot takes effect upon a person in another state or county he mav be tried in the jurisdiction where the shot §624 ORIGINAL LAW. 381 took effect. If a fatal blow is given in one state and the victim removes to another before death ensues, he must be tried in the jurisdiction where the blow was given, though some courts hold that jurisdiction rests concurrently in the courts of both localities. Offenses committed on board ships are generally punishable in tne country to which ships belong. The federal courts punish offenses committed by citi- zens of the United States in foreign lands, but whether the courts of the several states have this power is a mixed question. The power is claimed by the courts of Virginia and Wisconsin, and it is denied in New York and Michigan. Crimes committed on private ships in foreign ports are punishable in for- eign courts, and piracy may be punished in the courts of any country. If there is a conflict between the municipal law of a country and the law of na- tions, the latter will prevail. § 624. Jurisdiction over sovereigns, ambassadors, etc. — A sovereign traveling in a foreign country is not subject to its laws, and this immunity extends to foreign ambassadors, their households, secretaries and domestic servants. If any of these offend against the laws of the country where they may be residing temporarily, the only redress is to send them home and make demand upon the country they represent for reparation. This rule does not ap- ply to consuls who are mere commercial agents. Persons belonging to an army or navy within foreign territory are free from arrest. The rights of subjects of one country traveling or residing in another are generally regulated by treaty stipulations. In the ab- sence of such stipulations the rules as above stated 382 ELEMENTARY LAW. § 624 will prevail. By the statutes of some states, where a theft is committed in one state and the goods are carried to another, the state in which the offense originated has exclusive jurisdiction, while a differ- ent rule prevails in other states. CHAPTER XLVI. CRIMINAL OFFENSES. Every state in the Union has its own way of defin- ing crimes and declaring what punishment shall be inflicted upon offenders. We shall not undertake to give a compilation of the various statutory enact- ments, but shall content ourselves by giving in brief the essential ingredients of such crimes as are recog- nized and punished in most of the states. § 625. Abortion. — Abortion is to cause the mis- carriage or premature delivery of a woman. The statutes of some of the states require that the child shall have quickened in the womb at the time of the commission of the crime. The laws of other states declare that the offense may be complete at any time after gestation has begun. The consent of the mother is no defense. §626. Adultery. — Adultery is voluntary sexual intercourse with another man's wife. The woman must be married; she must be another man's wife. and whoever, married or single, has illicit intercourse with her becomes guilty of adultery. Such arc the essentials of adultery at common law. In some states the offender who is married is alone held guilty; in other states, where the intercourse is between a mar- ried woman and a single man, the woman alone is guilty. (3S3) 384 ELEMENTARY LAW. § 627 § 627. Abduction and kidnaping:. — Abduction, though not a common law crime, is made a crime by the statutes of most of the states. It is the act of taking away or detaining a woman against her will, or, in the case of minors, against the will of their parents or other person having lawful charge of them. In a more restricted sense it is the unlawful seizure or detention of a female for the purpose of marriage, concubinage or prostitution. Kidnaping is the unlawful seizure of any person with the in- tent to remove him to another place. It is a false imprisonment aggravated by the intent to carry the person imprisoned to another place. By the com- mon law kidnaping was the forcible abduction or stealing away of a man, woman or child from their own country and sending them into another. § 628. Affray. — An affray is the fighting together of two or more persons, either by mutual consent or otherwise, in some public place, to the terror of the people. There must be some stroke given or offered; mere quarreling and the use of threatening words are not sufficient. If the righting is in private it is not an affray. Prize righting as it is now practiced is not an affray, but it is made a misdemeanor by the laws of most of the states of the Union. In Indi- ana, Kentucky, and some other states, the fighting must be by mutual agreement to constitute an affray; elsewhere it is held that the mere fighting in a pub- lic place, with or without mutual consent, constitutes the offense. § 629. Arson. — Arson, as defined by Coke, is the malicious and voluntary burning of the house of an- other by night or by day. There must be an actual §030 CRIMINAL OFFENSES burning of some part of the building, though it is not necessary that any pari should be win illy con- sumed. The burning is sufficient to constitute the offense when any part of the building is charred, but a mere scorching or discoloration is not enough. Formerly the crime of arson was limited to the burn- ing of dwelling-houses, but it now has a wider scope, under the legislation of the various states, so that stables, mills, churches, warehouses, school-houses and other structures may be the subjects of arson. The burning must be malicious and willful, and not merely negligent. The intent to injure is an essen- tial ingredient of the crime, but this intent will be generally presumed. § 630. Assault. — A simple assault as defined by Bishop is an unlawful physical force partly or fully put in motion, creating a reasonable apprehen- sion of immediate physical injury to a human be- ing. It is essential that the force intended to be applied should be put in motion. Mere preparation or threats are not an assault. There must be some act which if not stopped may apparently, or, as some courts hold, actually, produce injury. Striking at another within striking distance though the blow comes short, throwing a missile at another, aiming a gun within gunshot, pointing a pitch-fork at a person within reach, such act coupled with a pres- ent intention to do violence would be an assault. § 631. Assault and battery. — A battery is the un- lawful touching of another in a rude, insolent or angry manner. To spit upon one, to set a >\n^ upon him which touches or bites him, to touch or lav hold of the clothes of another, is sufficient. There must 25 386 ELEMENTARY LAW. § 632 be intentional physical contact. If this is lacking it can amount to no more than a simple assault. § 632. Assault with intent. — An assault with in- tent is where an intent to commit a specific crime ac- companies the assault, as an assault with intent to kill, to rob, to rape or to inflict some serious bodily injury. In order to convict in such cases the spe- cific intent charged against the accused must be proved, and this intent may be inferred from his acts, words and the circumstances surrounding the transaction. The apparent consent of persons who are legally incapable of giving consent is no defense to a charge of assault with intent. In case of assault with intent to commit a crime, there must be accord- ing to the rule established in some courts a present ability in the assailant to inflict the injury, but the better opinion is that it is sufficient, if there is a rea- sonably apparent present ability, so as to create an apprehension that the injury may be inflicted, and cause the person threatened to resort to measures of self-defense. § 633. Justification for assault. — No one can be held to be guilty of an unlawful assault who has a sufficient justification or excuse for his act, as where it is in the necessary defense of his person, his prop- erty, or the persons to whom he owes the duty of protection, as wife, child or servant. As we have seen, a person who shoots at one, believing him to be another person whom he intends to kill, is guilty of shooting with intent to kill, and shooting or throwing a missile into a crowd is an assault with intent to kill or injure any one who may be in reach of the gun or the missile thrown. §634 CRIMINAL OFFENS] 387 § 634. Barratry, champerty and maintenance. — These offenses wore all punishable at common law. Barratry is the offense of frequently stirring up quar- rels and suits, either at law or otherwise. The in- dictment should charge the offender with being a common barrator, and there must be proof of at least three instances of offending. Champerty is a bargain with a party to a suit for a portion of the land or other matters sued for, in case of a successful termination of the suit which the champertor under- takes to carry on at his own expense. Contracts by attorneys for purely contingent fees, to be paid out of the damages recovered, were formerly considered champertous and void, but they are looked upon with more indulgence now and the practice of mak- ing such contracts is common, though it must be admitted that they have a pernicious influence on the character and standing of attorneys who make them. Where such contracts exist the attorney becomes, in effect, one of the real parties to the action. In some states it is held that the purchase and sale of land in litigation, or in the adverse possession of another, is a champertous contract and will not be enforced. Maintenance is a malicious, or at least officious, in- terference in a suit in which the offender lias no in- terest, to assist one of the parties to it against the other with money or advice to prosecute or d< the action, or, as it is Otherwise defined, it is the in- termeddling of a stranger in a suit for the purpose of stirring up strife and continuing the litigation. §635. Bestiality — Sodomy. — The first is the cop* ulation of man or woman with a beast, the second the unnatural copulation of man with man or man witli 388 ELEMENTARY LAW. § 636 woman. Both parties are guilty of sodomy and the consent of the parties is no defense. These crimes are generally spoken of as the abominable and detest- able crimes against nature, and as crimes not to be named among Christians. § 636. Bigamy or polygamy. — One already mar- ried and having husband or wife living, who marries a second time, is guilty of bigamy. These are statu- tory and not common law crimes. If the first mar- riage has been annulled by a court of competent jurisdiction, the parties are free to contract a second marriage, and if a person whose husband or wife has been absent for a certain number of years with- out being known by such person to be living, the person whose husband or wife is thus absent may in- nocently contract a second marriage. Where there has been no valid divorce from the first husband or wife and a second marriage is contracted on the ad- vice of counsel and in the honest belief that the di- vorce is valid, it is generally no defense, though the supreme court of Indiana has held that where the be- lief was on reasonable grounds after due inquiry, it is a defense to a criminal prosecution. § 637. Bribery. — Bribery at common law was lim- ited to the giving to a judge or other officer connected with the administration of justice any undue reward to influence his behavior in office. A better defini- tion is the giving or receiving of a reward to influ- ence any official act, whether of a judicial officer or not. The statutes of the states have extended the scope of the crime until it now includes judges, jurors, election officers, voters, legislators and all §G38 CRIMINAL OFFENSES. public officials who are placed in responsible stations to perform public service. § 638. Burglary. — Burglar}' at common law is the breaking and entering of the dwelling-hou.se of an- other in the night-time with the intent to commit a felony therein. There must be some breaking, and if the entry is made through an open door or window the offense is not complete. The raising of a el window or the turning of the knob or lifting the latch of a closed door is sufficient. So if there is an entry through an open door, but a breaking of an inner door, it is sufficient. There must be a break- ing of some part of the house ; forcing the door of an area wall or breaking open a chest or trunk in the house will not constitute a breaking. If one with intent to commit a felony knocks at a door, and an inmate opens it and he thus gets in, it is a construct- ive unlawful breaking. So where one gains admit- tance upon a false pretense of having business with an inmate, or by collusion with the servants of the household. An entry is essential, but the slightest entry is sufficient. If any part of the bi »<1 y or a weapon . a stick or anything in the offender's hands is thrust into the house through a door or window which has been broken, it will constitute an entry. The entry need not be at the same time as the break- ing, but both must be in the night. Night for the purposes of this crime begins when daylight enda and when countenances can not be easily discerned, and ends when there is sufficient daylight to dis them. The building broken into must by the com- mon law be a dwelling. The statutes of many states have included stores and many structures not used 390 ELEMENTARY LAW. § g39 as dwellings. In some states a breaking and enter- ing in the day-time with intent to commit a crime is declared to be burglary. The intent to commit a crime must exist. Ordinarily the intent of the burglar is to steal, but it may be to commit any other crime. Whatever the intent is it must exist at the time of the breaking and entering. § 639. Cheating — False pretenses. — Cheating by false pretenses is where any person by a false and fraudulent representation or statement of an existing or past fact, made with a knowledge of its falsity and with intent to deceive and defraud, induces an- other to part with money or property of value. It is not larceny because that implies that the owner's goods were taken from him without his consent. No mere expressions of opinion nor promise for future conduct, however fraudulent and false, will amount to a false pretense. The fraudulent representation must be of such a character as would mislead a per- son of ordinary intelligence. The injured party must be deceived, the representations must be false and must be believed to be true by the party de- frauded. The offender must fraudulently intend to obtain the property and to deprive the owner of the use of it, and the offense is not complete until the owner has parted with his property. It is no de- fense to show that other motives influenced the owner in part. It is sufficient if the fraudulent and false pretense charged were a part of the moving cause without which the owner would not have parted with his property. § 640. Conspiracy. — A conspiracy is a combina- tion of two or more persons, by some concerted action, §041 CRIMINAL OFFENSES. 391 to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful, by criminal or unlawful means. In many states conspiracy is indictable as a common law offense, in others there is no common law juris- diction of the offense. § 641. The agreement.— The agreement, whirl] is an essential ingredient of the crime, may be exp or implied, and its existence may be proved by cir- cumstantial evidence. Anyone who enters a con- spiracy adopts all the previous acts of his co-con- spirators in forming and carrying out the criminal purpose, and is bound by all that is done by them afterwards unless he withdraws and renounces his connection with it. If the conspiracy is to commit a felony, the conspiracy is merged in the consum- mated act. The mere unlawful agreement constitutes the crime, whether the unlawful purpose is accom- plished or not. All parties to a conspiracy are liable, in a civil suit for damages, to the injured person. § 642. Dueling. — Dueling is made a crime by the statutes of all the states. If death ensues all the parties, principals and seconds are guilty of murder. The sending or carrying of a challenge to fight a duel is an indictable offense in most of the states. §643. Embezzlement.— Embezzlement is nol a common law offense, but is made a crime by state stat- utes. It is like larceny in its effects upon the owner. and in the intent of the offender, but it differs in the important particular that the offender comes lawfully into possession of the money or thing embezzled, the criminal act being the fraudulent and unlawful appropriation of it to his own use. Bail., b, cashiers 392 ELEMENTARY LAW. § 644 or tellers of banks, clerks, public officers, agents and officers of corporations, book-keepers, in short all persons entrusted with the care of money or property belonging to others, who unlawfully and with fraudulent intent convert it to their own use, are embezzlers. If it appears that the money or thing taken was in the actual or constructive posses- sion of the owner, the offense would be larceny and not embezzlement. § 644. Extortion. — Extortion signifies in an en- larged sense any oppression under color of right, but in a stricter and more accurate sense it is the de- manding and receiving of money by an officer by color of his office, either where none is due or where the sum demanded and received is in excess of the amount due. It is an offense which can be com- mitted only by officers, whether federal or state, ministerial or judicial. One who acts as an officer can not plead in defense to a charge of extortion that he did not hold the office rightfully. The most com- mon form of the offense is the demanding and re- ceiving fees for official services in excess of the amounts fixed by law. § 645. False imprisonment. — False imprisonment is the unlawful restraint of a person contrary to his will, either with or without process of law. There must be a forcible detention of the person, and the detention must be unlawful. An officer who arrests and holds one in obedience to a writ directed to him from a court of competent jurisdiction is not guilty of the offense unless there was something on the face of the writ itself showing that it was not properly issued. 3 §646 CRIMINAL OFFENSES. § 640. Forgery. — Forgery at common law is the falsely making or materially altering or uttering with intent to defraud, any instrument in writing which if genuine would impose a legal liability. The false making must be with the intent that it shall appear to be the act of another, and with the intent to defraud. One who honestly believes that he has the authority to sign the name of another, or to make a material alteration in a written instrument, is not guilty of forgery though no such authority existed in fact. While the intent to defraud is necessary, it is not essential that the party intended to be defrauded should be injured thereby. It is no defense for the forger to say that his work was done so blunderingly that it would deceive only stupid and careless per- sons. An alteration of an instrument which though intended to do so does not in fact ami law alter the rights or obligations of the parties to it is nol a forgery, though the party making it did so with a fraudulent intent. The uttering of the forged in- strument is complete when the forger by words or actions declares that the forget] instrument is gen- uine with a knowledge that it is false. By the stat- utes of most states the possession of forged or count- erfeit bank notes with intent to utter or pass them is punishable as forgery. § 647. Fornication. — Fornication is voluntary il- licit sexual intercourse under circumstances doI con- stituting adultery. Single aets of fornication have been made criminal in some states, while in others it is punished only when it is habitual and no- torious. § 648. Homicide. — Homicide is the killing of a 394 ELEMENTARY LAW. § 649 human being, and it may be a lawful and an inno- cent act or a criminal act. Where it is criminal it is designated as murder or manslaughter. In most of the states there are grades of murder, as murder in the first degree, murder in the second degree. The highest grade of murder, that is, murder in the first degree, is the unlawful and felonious killing of another human being with malice aforethought. Murder in the second degree is like murder in the first degree, except that it lacks the premeditated design which is essential to the first, it being the in- tentional unlawful killing with malice, but without premeditation. § 649. Voluntary manslaughter. — Manslaughter is the unlawful killing of another human being with- out malice, and is either voluntary or involuntary. Voluntary manslaughter is where the act causing death is committed in the heat of sudden passion caused by provocation. There must be a purpose to kill or to inflict serious bodily harm. It is not nec- essary that the passion should be such as to dethrone the reason, but it must be sufficient in degree to neg- ative the idea of malice in the slayer. Whether in the particular case the provocation was adequate, or the passion excited sufficient to rebut the idea of malice, is for the jury to determine. The provocation may consist of abusive language, or an unlawful assault. And where two engage in a combat with or without weapons and one is killed, it is voluntary man- slaughter, unless the combat was sought by one merely as a pretext for killing the other. § 650. Involuntary manslaughter. — Involuntary manslaughter is the unlawful killing of a human be- §051 CRIMINAI/OFFENSES. 395 ing without malice, and without intent to kill inflict the injury causing death, committed acci- dentally in doing an unlawful but not felonious- act, or in the improper or negligent doing of a lawful act. The following are instances of involuntary man- slaughter when death results: The reckless handling and discharge of fireai gross carelessness on the part of a locomotive engi- neer 01 the master of a vessel, the grossly negligent use of defective material in building a house, reckless riding of a horse or driving a vehicle, cruel and im- moderate punishment of a child or pupil. §651. Justifiable homicide. — Homicide is justi- fiable where life is taken by the proper officer in pursuance of the lawful sentence of a court adjudging the execution of a convict ; where the killing is in the necessary self-defense of the person of the slaver, or of a husband or wife, parent or child, master or servant, or a man's habitation ; where it is neces- sary for the preservation of the peace, or to arrest or prevent the escape of a felon, or to prevent the com- mission of a felony. So also is the slaying of ene- mies in time of war, or the execution of persons guilty of certain breaches of the rules of military law. In cases of necessity where an alternative ex- ists between two or more lives having equal rights, and it is apparent or extremely probable that one or more must be sacrificed in order to save the others, it is justifiable to take such life or lives. In the case of an overloaded boat, where the sailors threw some passengers overboard to lighten the vessel, the court ♦ held that they were guilty of manslaughter, and that 396 ELEMENTARY LAW. § 652 in such an extremity the victims should have been se- lected by lot. To justify homicide on the ground of self-defense the accused must show that he was in apparent dan- ger of losing his own life, or of suffering grievous bodily harm at the hands of his assailant. It may turn out that the danger was not real, but if the con- duct of the assailant was such as to create in the mind of the person assaulted a reasonable apprehension of danger at the time, it is sufficient. The same rule applies where the plea is urged by one who takes life in the defense of those to whom he owes the duty of protection. § 652 . Malice. — Malice and the intent to kill are es- sential ingredients of murder, but this malice does not necessarily involve the notion of ill will toward the person slain. Where by one's conduct it is shown that he has a heart regardless of social duty and fatally bent on mischief, malice is sufficiently proved. Proof of a formed purpose to take the life of the vic- tim is sufficient to establish the existence of what is called malice aforethought, and it is enough if the intent to kill exists at the moment of killing, if it is deliberate. The jury may infer malice from the act and manner of killing where it is unlawful, and it is for them to determine from all the circumstances whether malice in fact existed. § 653. Incest. — Incest is sexual intercourse by per- sons who are related to each other in degrees within which marriage is prohibited by law. It is a crime unknown to the common law, and the statutes of the different states must be consulted to ascertain what constitutes the offense in any given locality. §654 CRIMINAL OFFENSES. 397 § 654. Larceny. — Larceny is the unlawful taking and carrying away of the personal property of an- other with the intent to deprive the owner thereof. Grand larceny and petit larceny are distinguished arbitrarily by the value of the property taken, as declared by the statutes of the various states. What is grand larceny in one state may be only petit lar- ceny in another. § 655. The taking must be secret and fraudulent, and it is not necessary that it should be by the thief in person. If the thief with felonious intent induces an innocent person to take the personal property of another and deliver it to him it is an unlawful tak- ing. The slightest intentional removal of the article from the place where it was before is a carrying away. § 656. It is not necessary that the person from whom the property is taken should be its absolute owner. Any rightful possession as that of a bailee having a qualified right of property would be owner- ship sufficient to support a charge of larceny. Goods in the possession of an agent or servant of another are constructively in the possession of the owner or master, though he may be personally ignorant of their existence or whereabouts. If possession is ob- tained lawfully the subsequent carrying away with the unlawful intent will not make it larceny. The unlawful intent to carry away and convert the prop- erty must exist at the time of taking. If by a fraud- ulent trick the owner is induced to part with the possession of his property temporarily, the thief in- tending to appropriate it unlawfully, it is larceny. § 657. Libel. — Libel is made criminal by the laws 398 ELEMENTARY LAW. §658 of some states, and it may be defined to be the willful and malicious publication of any false and scandalous matter tending to injure the reputation of another, or to hold him up to public ridicule and contempt. In most states the injured person is left to his rem- edy at law by means of a civil action for damages. § 658. Malicious trespass or malicious mischief. — The offense is ordinarily limited to injuries to prop- erty, as the maiming of cattle or other beasts, girdling trees, disfiguring houses. Malice is an essential ingredient of the offense ; but where the injury is willful, malice will be presumed. It is es- sential that damage shall have resulted to the prop- erty. § 659. Mayhem. — Mayheni at common law was the act of unlawfully and violently depriving an- other of the use of some member of his body where- by he was rendered less able to fight. A mere dis- figuring, such as cutting off an ear or a nose, was not mayhem at common law. By statutes in England and America, the definition has been extended so as to include all malicious injuries which disable or disfigure the injured person. It must be intentional, and an injury resulting from a random blow or thrust during a fight will not constitute mayhem, although it may result in maiming or disfiguring the injured party. There must be the specific intent to do the act which results in the crippling or dis- figuring. § 660. Nuisance. — Nuisance is a common law of- fense and consists in the unlawful doing of an act, or permitting a condition of things to exist which is prejudicial to the health, comfort, safety, property, §001 CRIMINAL OFFENSES. 399 sense of decency or morals of the citizens at la and it may be an act unauthorized by law, or from neglect of a duty imposed by law. To carry on an offensive trade in a populous community ; to keep a pig sty in a city ; to allow a stable in a city to be- come filthy ; to disturb the public rest by useless and unlawful noise ; to pollute streams or lakes which supply drinking water to the public ; to keep a disorderly house, and other such acts, constitute the offense. § 661. Perjury. — The crime of perjury as de- scribed in the common law is committed where a lawful oath is administered in some judicial proceed- ings or due course of justice to a person who swears willfully and absolutely and falsely in a matter ma- terial to the issue or point in question. By various statutes the offense is extended to false swearing in matters not connected with judicial proceedings. The crime may be committed by a witness on oral examination, in the course of a trial, or by a deposi- tion taken before an officer duly authorized to take it, or by an oath to an affidavit to be used at any stage of the judicial proceedings to which it relates. The form of the oath is immaterial, if it be admin- istered in such a way as to bind the conscience of him who takes it and to accord with his religious belief. An affirmation taken by one who has conscientious scruples as to the taking of an oath is the same as an oath, and one who falsely affirms is as much a per- jurer as if he falsely swears. The false statement must be of a matter material to the subject under consideration. A guilty intent is necessary to per- 400 ELEMENTARY LAW. § 6G2 jury, but a reckless statement under oath of the ex- istence of a fact of which the person taking the oath had no knowledge is perjury, although the state- ment sworn to may be true. § 662. Piracy. — Piracy is robbery on the high seas, being a forcible depredation on the high seas without lawful authority and done in the spirit and intention of universal hostility. Indictments and trials for piracy are within the exclusive jurisdiction of the federal courts, and it is the exclusive province of congress to say what acts constitute piracy. § 663. Rape. — Rape is the having carnal knowl- edge of a woman forcibly and against her will. Sex- ual intercourse with a child under the age of consent fixed by law, with an insane woman, or a woman in a condition in which she can not consciously consent, or when consent is extorted by fear, is rape, though no actual force be used. The crime is not complete unless there is some penetration by the male organ. It is no defense to a charge of rape that the injured woman is a prostitute, though her evidence would be regarded with suspicion. It may be said of the crime, generally, that it is a charge easily made and hard to disprove. If the woman be of good repute and make seasonable outcry, and show signs of in- jury, and the place where the crime was perpetrated be remote from observation, and if the offender flee to avoid arrest, her testimony is of great weight. A male under the age of fourteen is, in many states, conclusively presumed to be incapable of com- mitting the offense ; in other jurisdictions his ability to commit the crime is matter for proof. § 664. Riot. — Riot is a tumultuous disturbance of § GU5 CRI M I X A L F ■•■ E N S ES . 401 the peace by three or more persons assembling to- gether on their own authority with an intent, mutu- ally, to assist one another against any one who shall oppose them, in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act accom- plished was of itself lawful or unlawful. The act is not criminal because it is unlawful, but on account of the violent and turbulent manner of doing it. There must be three or more guilty parties, and if three only are charged and two are acquitted, the third can not be held guilty. An agreement to par- ticipate in the enterprise may be implied from the circumstances and conduct of the parties. 1 § 665. Robbery. — Robbery is the taking with fe- lonious intent of any money or goods of any value belonging to another from the person of another, or in his presence against his will by force or violence or by putting him in fear. The robber must take and remove the property taken, the thing taken must be the subject of larceny, the force used must be before or at the time of the taking and of such character as to make it evident that it was intended to overpower the party robbed or to prevent resist- ance on his part and not merely to get possession of the property. The mere taking the property from another by the false pretense that the taker is an officer, or the quiet and unobserved picking a pocket, or the snatching of an article from another's hands when there is no struggle or resistance, is not robbery. The fear must be such as would intimidate "26 402 ELEMENTARY LAW. § 666 and create a reasonable apprehension of danger. The person robbed need not be the owner of the property, possession is enough. If the accused acted in good faith, under the impression that the property was his own, there is no robbery. § 666. Seduction.— Seduction is the enticing by a man of an unmarried woman of previous chaste character, by means of persuasions and promises, to have sexual intercourse with him. Some statutes require the promise to be a promise of marriage. Others make it a crime to debauch and seduce an unmarried female of previous chaste character with- out regard to the means employed. Where the con- sent is given merely from carnal lust and the inter- course is from mutual desire, there is no seduction. If the woman knew the man to be married she will not be heard to say that she consented to the intercourse because of a promise of marriage. § 667. Treason and misprision of treason. — Trea- son against the United States is where a person owing allegiance levies war against them, or adheres to their enemies, giving them aid and comfort. The different states define treason in substantially the same way. Under the federal constitution no person can be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confes- sion in open court. If a body of men be actually assembled for the purpose of effecting by force a treasonable design, all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered traitors. §667 CRIMINAL OFFENSES. 403 It is the duty of a citizen who has knowledge of the commission of treason against the United States to disclose the same to the president or a judge of the United States, or to the governor or some judge or justice of a state, and the failure to make such disclosure is misprision of treason. CHAPTER XLVII. CRIMINAL PROCEDURE. § 668. Arrest. — The criminal law having been violated, the question arises, how shall the offender he brought to punishment? And first, of arrest, which is the taking into custody an alleged of- fender, in order that he may be tried. The arrest may be made by an officer or any citizen with a warrant, by an officer or citizen without warrant, by any person upon hue and cry. § 669. Warrant for arrest. — A warrant is a writ directed to a sheriff, constable or officer, or other person named, requiring him to apprehend and bring before the magistrate or court, from which the writ issues, the person named in the writ as the of- fender. The warrant, when issued by a magistrate, is based upon an oath made by some citizen charging the person named therein with the violation of some criminal law. When issued by a court, it is based upon an indictment found by the grand jury, or upon an information filed by the public prosecutor. It is the duty of the officer, or person charged with the duty of serving the warrant, to make the arrest without delay, and this is done by notifying the al- leged offender named in the warrant that he is arrested. It is proper and usual to lay hands on the accused. A mere touching with the finger is (404) §670 CRIMINAL PROCEDURE, 405 enough, and even this may be waived by the de- fendant if he submits to arrest. If a question is raised as to the authority of the officer or person making the arrest, it is customary for him to show the warrant, though this is not necessary, if he state the substance of the writ. If the offender knows the person to be an officer, no further notice is required, and so if the officer exhibits his badge of office. § G70. When warrant void and when valid.— A warrant issued by a magistrate or court which has no jurisdiction of the offense charged gives no au- thority to the officer or person named to make the arrest. It must appear to be based upon some formal accusation made before a competent magis- trate or tribunal, and to charge the person named therein with the commission of a specific offense ; and it must bear the seal or signature of the court or magistrate who issued it. Mere clerical or formal errors are immaterial and will not destroy the va- lidity of the writ. If an officer makes an arrest upon a void and illegal writ, he does so at his peril, and if the person apprehended is innocent, the officer may be liable in damages for false imprison- ment. § 671. Arrest by officer without warrant. — An officer is in duty bound to arrest for felony without warrant whore there is reasonable ground for sus- pecting the party to be guilty. If a crime or misde- meanor is committed in his presence, he has no dis- cretion but must arrest the offender. If he is in- • formed by others that a crime has been committed he must act with discretion and prudence and upon 406 ELEMENTARY LAW. § 672 reasonable grounds. It is the safer course always, when time will permit, to delay making arrest upon information without warrant and require those making the complaint or charge to make oath to it before a proper magistrate. The question in all such cases for the officer is, has he good grounds to be- lieve that a crime has been or is about to be com- mitted? § 672. Arrest by private person.— Private persons who are called upon by a proper officer to assist in making an arrest for felony must obey, and it is an offense against the law to refuse. Incases of felonies, if a private person without warrant has reasonable ground to suspect an other of being the guilty party, he may, if acting without malice and in good faith, make the arrest, and for doing so he is not liable civilly or criminally if the arrested person proves to be innocent. To protect a private person who makes an arrest for felony without warrant, it is necessary that a felony should have been committed, and that the person had good ground to believe that the per- son arrested was the guilty party. An officer is pro- tected in such case if he have reasonable ground to believe that the party is guilty, whether a felony has been committed or not. § 673. Arrest upon hue and cry.— If a crime has been committed and an officer or people are in pur- suit of a suspected offender, any citizen acting in good faith may apprehend the person pursued and keep him in custody until he has opportunity to de- liver him to the officers of the law. § 674. What an officer may do in serving: warrant and making arrest. — An officer with a warrant for §075 CRIMINAL PROCEDURE. 407 the arrest of a person may pursue him to his home, ami if necessary he may break down the doors. A private person without a warrant, who has good rea- sons for believing that one has committed a felony, may use the same force in making the arrest, though if the party arrested prove to be innocent an action for damages would lie against the persons so break- ing open doors without warrant. Mere suspicion of guilt will not justify such a course on the part of a private person. If an offender secretes himself in the house of another, the right to arrest him and to use force is the same as if he were in his own house. Upon proper affidavits magistrates issue search- warrants for stolen goods, and an officer having such a warrant may break open doors, trunks, etc., in prosecuting his search. Before resorting to such violence, however, he should make a demand for peaceful entrance and for the keys of trunks or chests in which the stolen goods are suspected to be. § 675. Extradition. — Where one who has com- mitted a crime in one state flees to another, his arrest may be accomplished by means of a writ of extra- dition. This writ is issued by authority of the state where the fugitive may be in hiding, upon a formal application of the governor of the state in which the crime was committed. The extradition of fugitives from justice is in obedience to a require- ment of the constitution of the United States, which provides that a person charged in any state with treason, felony, or other crimes, who shall flee from justice and be found in another state, shall, on de- mand of the executive authority of the state from which he fled, be delivered up, and be removed to 408 ELEMENTARY LAW. § 676 the state having jurisdiction. This provision in- cludes every crime punishable in the state making the requisition. The person who takes custody of the fugitive for the purpose of bringing him to the state from which he fled is not necessarily an offi- cer. He is the agent of the state making the de- mand and is named in the requisition. When he has custody of the fugitive it is his duty to trans- port him without delay to the state and county where the crime was committed and to deliver him over to the proper officer, to be dealt with according to law. Fugitives from justice who seek refuge in a foreign country are delivered up according to the stipulations of the treaties made upon that subject. The crimes for which such fugitives will be surrendered to the country claiming them are enumerated in the treaties. No civilized country, however, will deliver up a fu- gitive who is charged with a political offense. § 676. Examinations, bail, etc. — The accused be- ing in custody and before the officer or court having jurisdiction of the case, he is entitled to have an examination and trial in due course of law. If the offense is trivial, the magistrate, mayor, justice of the peace, or police judge, proceeds promptly to hear the case and assess the penalty. In such cases the judgment is final unless by statute an appeal to a hfgher court is allowed. If the offense is of a higher grade and one of which the magistrate who issued the writ has not jurisdiction to try, he pro- ceeds in a summary way to hear the evidence, and if a case of probable guilt is made out, he requires the accused to give bail, if the offense be bailable, for his appearance before the court having final §077 CRIMINAL PROCEDURE. jurisdiction, to answer the charge ; and if bail is not given, the accused is imprisoned until the charge against him is disposed of by that court. If on the preliminary examination the magistrate should decide that the evidence did not establish a case of probable guilt, the accused would be dis- charged. Such a discharge, not being a final judg- ment, would be no bar to subsequent arrests and trials for the same offense. § 677. Right to speedy trial — Presence of accused ill court. — Where bail is given, or the accused is imprisoned by the examining magistrate for want of bail, he is entitled to have the charge against him investigated at the next term of the court having jurisdiction. If no indictment is found against him and no formal charge made in that court, he will be discharged. When the indictment is found by the grand jury, or an information is filed by the prosecutor, the defendant is entitled to be arraigned and have the charge read to him in open court. He can waive this right and appear and plead by attor- ney if he pleases. When a prisoner is in custody, he has a right to be present in court at every stage of the proceedings. If he is on bail and voluntarily absents himself during a part of the proceedings, such absence will not affect the validity of his trial and conviction. § 678. Right of prisoner to have counsel. — The right of the prisoner to be represented by counsel is guaranteed by the constitution of the United States and by the constitutions of most of the states. If he is not able, or refuses to employ counsel, the court will assign some attorney to appear for the pris- 410 ELEMENTARY LAW. § 679 oner and conduct his defense. An attorney who is so designated by the court is bound to perform the duty assigned him. In some jurisdictions the attorney receives no compensation, in others the court makes him an allowance which is paid out of the public treasury, as other court expenses are paid. § 679. Change of venue. — The defendant has a right to be tried by an impartial court and an un- ju-ejudiced jury. If it is shown to the satisfaction of the court by proper affidavits that the local prejudice in the place where the prisoner is arraigned for trial is so great that it would be impossible to give him a fair trial, the place of trial will be changed to another jurisdiction. In some states the judge has no discretion, but must award the change when ap- plied for in the form required by law. In other states the judge may allow or refuse the application at his discretion. The same rules apply where the prisoner impeaches the partiality of the judge and demands a trial before an unprejudiced judge. § 680. Application for continuance. — If the pros- ecutor or defendant is not read}'- to proceed with the trial on account of the sickness or absence of im- portant witnesses, the court will grant a continu- ance. A mere statement of the prosecutor that he is not prepared to proceed is usually enough to procure a continuance. A stricter rule is applied to the de- fendant who in order to procure a continuance must show to the court by affidavits that a material wit- ness or witnesses are absent, that it was impossible by the exercise of reasonable diligence to procure their attendance, that he has reasonable grounds for believing that their attendance may be procured if §031 CRIMINAL PROCEDURE. 411 time is given, that the farts he expects to prove by the testimony of the absent witness can not be es- tablished so well by any other available wit:. In extreme cases continuances will be granted on ac- count of the sickness of the defendant or his counsel or where on account of some temporary local excite- ment it would be prejudicial to the defendant to be forced to trial. An improper refusal to grant a con- tinuance is an error which will reverse a case in the appellate court if the defendant should be tried and convicted. Where proper affidavits are filed, a con- tinuance may be avoided by the admission of the prosecutor that the absent witness if present would testify to the facts set forth in the affidavits. § 681 . Indictment — Information. — The indict- ment is a written accusation charging the persons named therein with the commission of a crime, pre- sented on oath by the grand jury. An information is a similar charge not presented by the grand jury but signed by the prosecuting officer. In substance they are the same. Each must charge the defendant named with a specific offense, giving time, place, person and every circumstance so as to inform the accused of the exact nature of the charge he is to an- swer. In the caption the state and county in which the offense was committed and the name of the court should appear. The indictment must be signed by the prosecuting attorney and indorsed, "A true bill," by the foreman of the grand jury. If a single count in an indictment charges two distinct crimes, it will be bad for duplicity, as where the same count contains a charge of murder and robbery. Where an 412 ELEMENTARY LAW. § 682 indictment in describing the offense follows sub- stantially the language of the statute, it is sufficient. § 682. Pleas to indictment. — Before entering his plea to the charge against him, the defendant may move to quash the indictment or information for some defect apparent upon the face of it, as if it does not charge the offense properly or is not signed by the prosecutor or indorsed by the foreman of the grand jury, or if the names of the principal witnesses for the prosecution do not appear upon it, or if the date of the offense as charged is subsequent to the finding of the indictment or the filing of the infor- mation, or if the date named is beyond the period prescribed by the statute of limitations. What are and what are not sufficient grounds for a motion to quash is ordinarily determined by the statutes of the states. The motion to quash should precede the plea, though the court will allow a plea already en- tered to be withdrawn and give the defendant leave to move to quash the indictment or information. § 683. Arraignment. — The arraignment consists of calling the prisoner to the bar by name, reading the indictment to him, and asking him whether he is guilty or not guilty of the offense charged. When thus arraigned he may demur to the indictment, plead either to the jurisdiction, in abatement, a former conviction or acquittal of the same offense, a pardon, or not guilty. If he stands mute and refuses to plead, the court will order a plea of not guilty to be entered. If the defendant pleads guilty, nothing remains for the court to do but to pass sentence. The plea of guilty can be made only by the defend- ant in person, and in open court. The plea of not §G84 CRIMINAL PROCEDURE. .j 1 3 guilty puts in issue all the material averments in the indictment and information. § G84. Jury impaneling. — The case being put at issue by the plea of not guilty, the impaneling of the jury comes next in order. Most of the states have special statutes directing how jurors are to be se- lected, and how and for what causes they may be challenged. There are three kinds of challenges, viz.: challenge to the array, which is an objection to the whole body of jurors returned by the sheriff for some irregularity or misconduct on the part of the sheriff ; the peremptory challenge, which is an objection to an individual juror without stating any reason, the number of such challenges being limited by law ; the challenge for cause, which is an objection to an individual juror on account of bias, partiality, or the existence in his mind of a prejudice against the defendant, or of a preconceived opinion of his guilt, there being no limit to the number of challenges of this kind. The jury is not complete until twelve impartial men are selected. When all challenges are exhausted or waived and the panel is full, th< jurors are sworn in open court to try the case. § 685. Opening statements of counsel. — When the jury are impaneled and sworn, the prosecuting at- torney opens the case by stating the substance of the evidence he proposes to submit to the jury. This statement should be full and candid, so as to notify counsel for defense of the case they are expected to meet. Then follows the statement for the defense, or, if counsel prefer, the statement for the defense is postponed until the evidence for the prosecution has been put in. The order of these opening addresses 414 ELEMENTARY LAW. § GSG is a matter within the discretion of the court, except in those states where the statutes prescribe it. § 686. Examination of witnesses. — The witnesses for the prosecution are then called and examined. It is usual for one counsel only to conduct the direct examination, and one to conduct the cross-examina- tion of each witness. This is a matter of usage however, regulated by the practice of each court. Upon request the presiding judge will allow other counsel in the case to interrogate the witness. Arbi- trary rules are not enforced, the object being to get all the material facts before the jury, and the judge is allowed a large discretion in determining the order in which the evidence is to be introduced. It some- times happens that important facts are within the knowledge of a witness who has been examined and discharged, and which was not elicited upon his ex- amination. Where this appears to be the case the court may allow such witness to be recalled by the prosecution or defense, even after it has been an- nounced that the evidence is all in. § 687. Rules of evidence. — The general rules of evidence as to its competency and relevancy are the same in criminal as in civil cases; as to the weight and effect of the evidence the rules are different. A bare preponderance of evidence is enough to estab- lish the plaintiff's right to recover in a civil case; in a criminal case every material allegation in the indict- ment must be proved beyond a reasonable doubt, and every fact necessary to establish guilt must be proved in like manner. In civil cases where one side or the other has produced evidence which prima facie establishes a given fact, the burden of proof shifts to the party §633 CRIMINAL PROCEDURE. 415 against whom the prima facie case is made; in criminal cases the burden never shifts, the presumption of the prisoner's innocence follows and shields him throughout the case until the measure of proof es- tablishes his guilt beyond a reasonable doubt. In some states even the presumption of the sanity of the accused does not require him to prove his insanity when that is urged as a defense. It is incumbent on the state to establish his sanity beyond a reason- able doubt, though the general rule in most of the states puts the burden of establishing the defense of insanity upon the defendant. So where the defense of self-defense is urged in behalf of one on trial for homicide or assault and battery, the burden of proof is upon the state to negative it, though in a few states a contrary rule prevails. The same may be said of the presumption of guilt arising against one accused of larceny from the possession of goods recently stolen. Where the state undertakes to es- tablish the guilt of the accused by circumstantial evidence consisting of a chain of facts, every fact es- sential to the continuity of the chain must be estab- lished beyond a reasonable doubt. The rule in such cases is that the facts proved must be absolutely in- consistent with the theory of the innocence of the ac- cused. § 688. Special rules of evidence in criminal cases. — There are some other special rules of criminal evidence which should be noted. The dying decla- rations of the victim of homicide, if made when death is imminent and expected by the victim, are compe- tent evidence to prove the circumstances attending the transaction, the name of the slayer, etc. The 416 ELEMENTARY LAW. § 689 voluntary confessions of the accused are evidence against him ; when made in open court they are called judicial confessions, and when made elsewhere they are called extra-judicial confessions. When an accomplice turns state's evidence and testifies against his confederates, his evidence is received, but is not enough to establish the guilt of the ac- cused unless it is corroborated by other witnesses or other facts in evidence. When two accomplices tes- tify, the evidence of one can not be considered as a corroboration of the evidence of the other. If the accused is not content with the presumption of inno- cence which the law allows in his favor, but desires to strengthen it, he may do so by introducing proof of his good character. When he does so, however, the state may meet it by contrary proof. § 689. Final arguments of counsel. — When the evidence is all in, counsel address the jury. They are required to confine themselves to a discussion of questions of fact, for the court is to charge the jury as to the law of the case. The jury are bound by their oaths to find the facts according to the evidence as given by the witnesses and the law as given to them by the court. In some states, however, the law makes the jury the judges of the law as well as the facts, and where this is the case, counsel have a larger liberty and may argue to the jury that the law is different from that which is given to them by the court. The cases are rare, however, in which counsel resort to this practice. It is common prac- tice in the English courts and in the federal courts for the presiding judge to comment upon and sum up the evidence in his charge, but this is sel- §G90 CRIMINAL PROCEDURE. 417 dom done in the state courts, where the statutes gen- erally require the judge, when so requested, to sub- mit his instructions to the jury in writing. § 690. Conduct of jury— Verdict.— The rules reg- ulating the conduct of the jury after they retire to deliberate upon their verdict and as to the manner of signing and returning the verdict into court are the same in criminal as in civil cases. The defendant has a right to demand that the jury be polled, which is done by calling each juror by name and asking him if the verdict signed by the foreman is his ver- dict. If any one of the twelve answers in the nega- tive the whole jury are sent to their room for further deliberation. When it is returned into court the ver- dict is recorded by the clerk. § 091. Motion for new trial — Arrest of judgment — Execution. — After verdict the defendant may move for a new trial: ( 1 ) For newly-discovered evidence, when it is made to appear that the defendant by the exercise of due diligence could not have produced it at the trial, that the newly-discovered evidence is material and not merely cumulative, that is, tending to make further proof of a fact upon which some evidence was produced at the trial ; (2) irregularity in summoning the jury ; (3) misconduct of jurors ; (4) tampering with jurors; (5) bias or hostility of jurors, which was unknown to defendant when they were accepted and sworn ; (6) that the verdict was contrary to evidence; (7) that the verdict was contrary to law. If the motion for a new trial is denied, the defendant may move in arrest of judg- ment, and to sustain this motion he must show that 418 ELEMENTARY LAW. §691 there are defects in the record of the proceedings which are not cured by the verdict. If these motions are denied sentence is pronounced and the judgirent of the court is executed, unless upon appeal or writ of error a higher court reverses the judgment. INDEX. [References are to sections."] A ABATEMENT, pleading in, 554. ABDUCTION, 627. ABORTION, 625. ABSOLUTE RIGHTS, 40. ABUSE OF PROCESS, 303. ACCEPTANCE OF BILL OF EXCHANGE, 232. ACCESSORIES, 618. ACCOMPLICE, evidence of, 687. ACCORD AND SATISFACTION, 600. ADEQUACY OF CONSIDERATION, 252. ADMINISTRATOR, how appointed, 180. rights and duties of, 180. de bonis non, 180. with the will annexed, 181. promise under statute of frauds, 262. sales of land by, 180, 181. ADMIRALTY, origin and history, 582. jurisdiction, 583. procedure, 584. ADMISSIONS, when evidence, 565. ADULTERY, 626. as ground for divorce, 449. ADVANCEMENT, 601. (419) 420 INDEX. [References are to sections."] ADVERSE POSSESSION, 147. deed of lands, so held, 160. ADVOWSON, 70. AFFRAY, 628. AGENT, contracts by, 206. who may be, 206. can not assume incompatible duties, 206. how appointed, 206. generally can not delegate authority, 206, 209. authority of, how ascertained, 207, 208. private instructions to, by principal, 208. ambiguous authority, 208. acts in excess of authority, 208. declarations of, as evidence, 208. when authority ceases, 209. liability of to principal, 209. promissory notes of, 238. frauds of, 358. AIDS UNDER FEUDAL SYSTEM, 88, 100. AIDING AND COUNSELING IN CRIMES, 610. ALIENS, rights of, 22. contracts of, 195. ALLODIAL ESTATES, 83, 109. ALLUVIAL DEPOSITS, 60. AMBASSADORS, crimes of, 624. privilege from arrest, 296, 297. AMPHICTYONIC COUNCIL, 13. ANIMALS, injury to, 436. trespass on lands, 437. duty of owner at common law, 438. duty of owner in United States, 439. remedies for trespasses, 440. injuries by, when not trespassing on land, 441. vicious and dangerous, 441. owner's knowledge of danger, 442. ANTENUPTIAL AGREEMENTS. 132. [NDEX. 421 [References are to *ections.] APPEAL, 573. APPORTIONMENT OF RENT, 124. APPRENTICES, 471. APPURTENANCES, defined, 68. ARBITRATION, 599. ARGUMENTS OF COUNSEL, privilege of, 324. in civil cases, 568. in criminal cases, 689. ARMS, right to bear, 335. ARRAIGNMENT, 683. ARREST, privilege from, 296. for crime, 290, 668. warrant for, 669. by officer without warrant, 292, 671. by private person, 292, 672. upon hue and cry, 673. what officer may do in serving warrant, 293, 674. ARREST OF JUDGMENT, 571. ARSON, 629. ASSAULT, 281, 630. ability and intent to injure, 282. ASSAULT AND BATTERY (and see Battery), 281-288, 631. justification for, 286, 633. ASSAULT WITH INTENT, 632. ASSIGNMENT OF DOWER, 133. ASSIGNOR OF NEGOTIABLE INSTRUMENT, 236. ATTACHMENT, 595. 596. ATTEMPTS TO COMMIT CRIME, 609. ATTORNEY, fraud of, 361 . at law and in fact, 206. in fact, deed by, 167. contingent fees of, 634. AUCTIONEER, 206. 422 INDEX. [References are to sections. 1 ] B BAIL, 676. BAILMENT, for benefit of bailor, bailee or both, 215. degree of care required, 215. common carrier, 215. innkeeper, 215. mechanic or artisan, 215. warehouseman, 215. pawnbroker, 215. BARRATRY, 634. BASE FEE, 127. BASE TENURE, 97. BATTERY, defined, 283, 631. intent of wrong-doer, 284. consent of injured, 285. justification for, 286, 633. self-defense, 287. remedies for, 288. BELLIGERENTS, rights and duties of, 16. BEQUEST, title by, 176. BESTIALITY, 635. BIGAMY, 636. BILL OF EXCHANGE, 227. foreign, 229. inland, 229. parties to, 230. acceptance of, 232. signatures, 234. BILL OF LADING, 242. BODIES OF DEAD, 177. BOUNDARY LINES, 66. along highways, 519. along streams, 60. BRIBERY, 637. BROKER, 206. IN DFX. 423 [References are to sections.'] BURDEN OF PROOF, 567. BURIAL RIGHTS, 177. BURGLARY, 638. C CAPACITY TO COMMIT CRIME, 604. CAPIAS, 598. CARELESSNESS, criminal, 612. CERTIORARI, 602. CHALLENGE TO JURY, 684. CHAMPERTY, 634. CHARACTER, evidence of in criminal cases, 687. CHEATING BY FALSE PRETENSES, 639. CIRCUIT COURTS OF APPEALS, jurisdiction, 538. CIRCUIT COURTS OF THE UNITED STATES, 539. CITIZENSHIP, denned, 20. two kinds in United States, 20. rights of, how guarded, 20. how acquired, 21. of corporations, 273. jurisdiction of United States courts, when dependent on, 534. CIVIL CODE IN LOUISIANA, 12. CIVIL PROCEDURE, civil actions, 548. officers of court, 548. actions, how commenced, 549. parties to actions, 549. process, 550. service and return of process, 551. matters of defense, 552. objections to jurisdiction, 553. answers and pleas in abatement, 554. issues of fact and of law. 555. jury, 556. trial, 557. 424 INDEX. [References are to sections.] CIVIL PROCEDURE— Continued. evidence, 558. functions of court and jury, 559. judicial notice, 560. presumptions, 560. written and oral evidence, 561. attendance of witnesses, 562. competency of witnesses, 563. hearsay evidence, 564. exceptions to rule excluding hearsay, 565. examination of witnesses, 566. burden of proof, 567. arguments and instructions, 568. deliberations of jury, 569. verdict, 569. motion to set aside verdict, 570. motion for new trial, 570. motion in arrest of judgment, 571. forms of judgments, 572. appeals and writs of error, 573. execution, 574. CLERGYMEN, frauds of, 363. CLERK OF COURT, 548. CODICIL, 154. COMMISSION MERCHANT, 206. COMMON RIGHT OF, 72. COMMON RECOVERIES, 129. COMMON, estates in, 144. COMMON CARRIER, duty as to care of goods, 215. duty as to passengers, 216. who is a common carrier, 215, 216. not insurers as to passengers, 216. may make and enforce rules, 216. I act of God, 216. COMMON LAW, of United States, 12, 36. yields to statutes, 29. defined, 32. INDEX. 425 [References are to sectioni."] COMMON LAW— Continued. where found, 32. sources of, 33. growth of, 34. law merchant, a part of, 34. COMPOUNDING CRIMES, 608. CONDITIONAL FEE, 128. CONDITION, estates upon, 134. implied, 135. expressed, 136. CONDITIONS PRECEDENT, 137. CONDITIONS SUBSEQUENT, 137. CONDITIONS, when equity will relieve against forfeiture for breach of, 137. CONFESSIONS, 687. CONFUSION, title by, 176. CONSENT, to abortion, no defense, 625. to assault and battery, 285. to taking life, 277. meeting of minds in contracts, 191. in rape, 663. CONSIDERATION, defined, 251. good and valuable, 251. moral obligation, 251. adequacy, 252. prior obligation, 253. part payment as, 253. mutual releases by creditors, 254. disputed claims, 255. impossible, 256. executed and executory, 257. past, 258. failure and want of, 259. legal and illegal, 256, 259. of promissory notes, 240. 426 INDEX. [References are to sections.] CONSPIRACY, criminal, 640, 641. to prevent labor, 349. civil remedies for, 350. CONSTITUTION OF UNITED STATES, power of supreme court, 9. CONSTITUTIONS, what they are, how made and amended, 23. CONSTRUCTION, effect of contemporaneous, 31. of criminal statutes, 605. CONTEMPT, 593, 594. CONTINGENT FEES OF ATTORNEYS, 634. CONTINGENT REMAINDER, 138. CONTINUANCE IN CRIMINAL CASES, 680. CONTRACTS, law of place of, fixes rights of parties, 18. contract and status, 182. law of place of suit determines mode of redress, 18. growth of right to contract, 182, 183 definition, 184. capacity of parties, 185. void and voidable, 186. executed and executory, 187. written, 188. parol, 189. express, 190. meeting of minds in, 19L. time of contract, 192. implied contract, 193. quasi contracts, 193. illegal in whole or part, 186. impossible, 186. of record, 194. parties to, 195. of infants, 195-200. of insane, 195. 202. of state, 195. of aliens, 195. for necessaries by infant, 197. executed, of infant, 199. INDEX. 427 [References are to sections.] CONTRACTS— Continued. frauds of infants, 199. disaffirmance of by infant, 200. ratification of, by infant, 200. duress, 201. of guardians, 202. drunkenness as affecting contracts, 203. of married woman, 204. of corporations, 205. by agents, 206. by ship's husband, 207. by ship's master, 207. authority of agent, 207, 208. acts in excess of authority, 208. private instructions to agent, 208. ambiguous authority of agent, 208. declarations of agents, 208. when authority ceases, 209. of sale and exchange, 210-213. warranty, 211. specific performance of, when not enforced, 211. transfer of title, 212. delivery, 213. interpretation of, 214. bailment, 215. of common carriers, 216. of partnership, 217-226. bills of exchange, 227-234. promissory notes, 227-241. bills of lading, 242. insurance, 243-250. consideration, 251-259. statute of frauds, 260-270. CONVENTIONAL LAW OF NATIONS, 14. COPYRIGHTS, 494. CORPOREAL PROPERTY DEFINED, 53. CORPORATIONS, defiintion, 271. public, 271. private, 271. quasi corporations, 271. joint stock companies. 271. 428 INDEX. [References are to sections."] CORPORATIONS— Continued. powers of, 272. organization of, 273. citizenship of, 273. charter of, 274. vested rights of, 275. dissolution of, 276. doing business in other states, 17. deeds by, 166. contracts of, 205. frauds of, 360. COUNSEL, prisoner's right to be heard by, 678. arguments of, 568, 689 opening statements, 685. COURTS, in England and United States, 3. functions of, 35. under feudal system, 85. modern, 529-574. jurisdiction denned, 530. federal, 531-544. senate as a court, 532. judicial circuits and districts, 533. judicial power of United States, 534. exclusive jurisdiction of, 535. concurrent with state courts, 536. jurisdiction of supreme court, 537. jurisdiction of circuit courts of appeals, 538. jurisdiction of circuit courts, 539. jurisdiction of district courts, 540. jurisdiction of court of claims, 541. jurisdiction of court of private land claims, 542. United States commissioner, 543. territorial courts, 544. courts of District of Columbia, 544. state courts, 545-547. jurisdiction of state courts, 546. officers of, 548. procedure of in civil cases, 548-574. procedure in criminal cases, 668 to 691. [NDEX. 429 [Reference* are to sections.] CREDITORS, rights under feudal law, 91. of decedent, 181. of partnership, 223. of individual partners, 223. CRIME, defined, 603. . CRIMINAL LAW, crimes in United States, 603. capacity to commit, 604. statutes, how construed, 605. infamous crimes, 606. classification of, 607. compounding, 608. attempts, 609. aiding, counseling, etc., 610. intent and overt act, 611. criminal carelessness, 612. ignorance and mistake of fact, 613. ignorance of law, 614. self-defense, 615. offenses by wives, 616. principal and agent, 617. principal and accessory, 618. drunkenness, 619. insanity, 620. punishment, 621. jurisdiction in, 622, 623. jurisdiction of sovereigns and ambassadors, 624. CRIMINAL OFFENSES, abortion, 625. adultery, 626. abduction and kidnaping, 627. affray, 628. arson, 629. assault, (530. assault and battery, 631. assault with intent, 632. barratry, 634. champerty, 634. maintenance, 634. 430 INDEX. {References are to sections.] CRIMINAL OFFENSES— Continued. bestiality, 635. sodomy, 635. bigamy, 636. polygamy, 636. bribery, 637. burglary, 638. cheating, 639. false pretenses, 639. conspiracy, 640. dueling, 642. embezzlement, 643. extortion, 644. false imprisonment, 645. forgery, 646. fornication, 647. homicide, 648. manslaughter, voluntary, 649. manslaughter, involuntary, 650. incest, 653. larceny, 654. libel, 657. malicious trespass, 658. malicious mischief, 658. mayhem, 659. nuisance, 660. perjury, 661. piracy, 662. rape, 663. riot. 664. robbery, 665. seduction, 666. treason, 667. misprision of treason, 667. CRIMINAL PROCEDURE, 668-691. CURTESY, tenant by, 131. CUSTOMS, as part of common law, 12-38. origin of, 38. INDEX. 431 [References are to sections.] CUSTOMS— Continued. definition and kinds of, 39. different from usage, 39. requisites of, 39. D DAMAGES, for injuries causing death, 280. for assault and battery, 288. for false imprisonment, 295. for malicious prosecution, 304. special, in defamation, 311, 331. for libel and slander, 331. contemptuous, 331. compensatory, 331. exemplary, 331. general, 331. aggravation of, 331. mitigation of, 331. for fraud, 382. for nuisance, 403. for negligence, 420. for infringing trade-marks, 497. for wrongs to personal property, 507. for wrongs to real property, 517. DAY, 122. DAYS OF GRACE, 122. DEATH, recovery for injuries causing, 280. DEBTS, effect of war upon, 16. law of place of contract, 18. DECEDENTS' ESTATES, 178-181. DEDICATION, of right of way, 73. statutory and common law, 73. DEED, capacity of parties, 163. quitclaim, 158. warranty, 158. 4 32 INDEX. [References are to sections."] DEED— Continued. special warranty, 158. how executed, 158, 163. delivery of, 158. title, bond for, 158-159. forms of, 161. by owners not in possession, 160. recording of, 162. of guardians, 164. of partners, 165. of corporations, 166. by officers, 168. by attorney in fact, 167. description of land in, 169. DEFAMATION, 305-331. DELIVERY, when essential to pass title, 213. of part, 213. to agent or carrier, 213. symbolical, 213. place of, 213. escrow, 158. DEPOSITIONS, 561. DESCENT, what law governs, 19. title by, 150. statutes of, 179. DESCRIPTION OF LAND IN DEED, 169. DEVISE, executory, 140. title by, 152. DEVISEE, right to enter, 181. DISTRESS, 123. DISTRICT COURTS OF UNITED STATES, 540. DIVORCE, 449. DOMESDAY BOOK, 89. DOMICILE OF INTESTATE, law of, fixes rule of distribution, 19. INDKX. 433 [References are to sections."] • DOWER, estate of, 132. at common law, 132. how barred, 132. assignment of, 133. in lands sold by husband, 163. DRAWEE OF BILL OF EXCHANGE, 230. DRAWER OF BILL OF EXCHANGE, 230. DRUNKENNESS, as affecting contracts, 203. in negligence, 415. in frauds, 362. in crimes, 619. DUELING, 642. DURESS, defined, 201. contracts under, 201. as affecting negligence, 414. DYING DECLARATIONS, 565, 687. E EASEMENTS, defined, 76. bow acquired, 76. how lost, 76. license is not, 76. EMBEZZLEMENT, 643. EMBLEMENTS, 117, 120. EMANCIPATION OF INFANT, 196, 453. EMINENT DOMAIN, title by, 170. basis of, 170. who may obtain, 170, 171. proceedings to acquire, 172. may be without jury, 172. compensation must be made to owner, 172. statute for acquiring must be followed strictly, 172. proceedings not suits at common law, 172. 28 434 INDEX. [References are to sections."] ENTIRETY, estate by, 143. EQUITY AND PROCEEDINGS IN EQUITY, equity jurisdiction, 575, 576. prohibitory injunction, 577. mandatory injunction, 577. general scope of equity jurisdiction, 578. full relief, 579. suit in equity — pleadings, 580. evidence in equity, 581. hearing in equity, 581. decree in equity, 581. bill of review, 581. ESCHEAT, denned, 106. title by, 173. ESCROW, 158. ESCUAGE, 90. ESTATES, allodial, 83. defined, 111. fee-simple, 112. fee in abeyance, 113. for life, 115-119. for years, 120. at will, 125. at sufferance, 126. base fee, 127. conditional fee, 128. in tail, 129-130. by curtesy, 131. in dower, 132, 133. upon condition, 134-137. implied, 135. expressed, 136. in remainder, 138. rule in Shelley's Case, 139. executory devises, 140. in reversion, 141. in severalty, 142. index. 435 [References are to sections.] ESTATES— Continued. in common, 144. in joint tenancy, 143. by the entirety, 143. of decedents, 178. ESTOPPEL, 382. EVIDENCE, conclusive, denned, 558. prima facie, denned, 558. tending to prove, denned, 558. competent, denned, 558. sufficient, denned, 558. corroborative, denned, 558. cumulative, defined, 558. relevant, defined, 558. admissible, defined, 558. proper, defined, 558. material, defined, 558. direct, defined, 558. circumstantial, defined, 558. preponderance of, defined, 567. functions of court and jury, 559. judicial notice, 560. presumptions, 560. written and oral, 561. attendance of witnesses, 562. competency of witnesses, 563. privileged communications, 563. hearsay, 564, 565. admissions, 565. examination of witnesses, 566. dying declarations, 565, 687. burden of proof, 567. in equity cases, 581. declarations of agents, 208. rules of, in criminal cases, 687. confessions, 687. special rules of, 687. accomplice, evidence of, 687. character, evidence of, 687. EXAMINATION, preliminary, 676. of witnesses, 686. 436 INDEX. [References are to sections."] EXECUTED CONTRACT OF INFANT, 199. EXECUTIVE, functions of, 7. duties of, 343. liability of, 343. EXECUTION, civil, 574. criminal, 691. EXECUTORS, appointment of, etc., 181. promises under statute of frauds, 262. EXECUTORY DEVISES, 140. EXECUTORY CONTRACTS, 187. EXPATRIATION, right of, 20. EXPRESS CONTRACT, 190. EXTORTION, 644. EXTRADITION, 675. EXTRAORDINARY REMEDIES AND SPECIAL PROCEED- INGS, mandamus, 585, 586. quo warranto, 587, 588. prohibition, 589. habeas corpus, 590-592. contempt, 593, 594. attachment, 595, 596. garnishment, 597. capias, 598. arbitration, 599. accord and satisfaction, 600. partition, 601. certiorari, 602. F FACTOR, 206. FALSE IMPRISONMENT, defined, 289. detention or restraint, 290. unlawfulness, 291. INDEX. 437 [References are to sections.] FALSE IMPEISONMENT— Continued. restraint without process, 292. restraint under legal process, 293. restraint by officers, 294. remedies, 295. privilege from arrest, 296, 297. criminal, 645. FALSE PRETENSES, cheating by, 639. FEDERAL COURTS, what laws judicially noticed by, 18. jurisdiction and procedure of, 531-544. FEE-SIMPLE, estate, 111, 112. in abeyance, 113. FEE, conditional, 123. base, 127. tail, 130. FELLOW-SERVANTS, ' defined, 487. FEUDAL SYSTEM, origin and nature, 82. fiefs and feuds, 82, 91. abolition of, 92. FINES, 105. FIXTURES, as between landlord and tenant, 63. ] as between vendor and vendee, 63. as between heir and executor, 64. requisites of, 64. FOREIGN BILLS OF EXCHANGE, 229. FORFEITURE, relief against, 137. FORGERY, 646. FORNICATION, 647. FRANCHISES, 78. FRANK TENEMENT, 98. 438 INDEX. [References are to sections.] FRAUD, statutes against, liberally construed, 29. of infant, 198. in insurance contracts, 246. in sales of personal property, 211. kinds of, 351. in confidential relations, 353. husband and wife, 353. parties engaged to marry, 354. illegal sexual relations, 355. parent and child, 356. by trustees, 357. principal and agent, 358. partners, 359. by corporations, 360. attorneys, 361. physicians, 361. clergymen, 361. persons of weak mind, 362. between equals, 363. fraud defined, 364. by silence, 365. equal opportunities, 366. elements of fraud, 367. representations and warranty, 368. clearness and certainty, 369. matters of law, 370. opinions, 371. matters of fact, 372. promises, 373. materiality, 374. falsity, 375. wrong-doer's knowledge, 376. wrong-doer's intent, 377. who entitled to rely, 378. representations must be acted upon, 379. injured person's belief, 380. damages, 381. remedies for fraud, 382. personal injuries through, 383. INDEX. 439 [References are to sections."] FRAUDS, STATUTE OF, 260-270. history of, 260. provisions of, 261. promises of executors and administrators, 262. debt, default and miscarriage defined, 263. collateral obligation, 264. agreements in consideration of marriage, 265. contracts for sales of lands, 266. agreements not to be performed within a year, 267. note or memorandum, 268. signature to memorandum, 269. sale of goods, 270. FREE SOCAGE, 98. FREE TENURE, 97. FREEDOM, of speech, 336. of press, 336. religious, 338. G GARNISHMENT, 597. GIFT, title by, 176. GOODS, sale under statute of frauds, 270. GOOD-WILL, 226, 497. GUARANTOR, defined, 236. GUARDIAN'S DEED, 164. GUARDIAN OF INSANE, 469. contract of, 202. GUARDIAN AND WARD, who is guardian, 461. different kinds of, 461. natural, 462. testamentary, 463. legal— rights and duties of, 464. guardian ad litem, 465. next friend, 466. 440 INDEX. [References are to sections."] GUARDIAN AND WARD— Continued. right of guardian and ward in each other, 467. wrongs between guardiaH and ward, 468. guardian of insane person, 469. deeds of, 164. H HABEAS CORPUS, 590-592. constitutional provisions, 45. HEALTH, right to, 46. HEARSAY EVIDENCE, 564, 565. dying declarations, 565, 687. HEIRS, use of word in deeds and wills, 114. . HEREDITAMENTS, incorporeal, 69. HIGHWAYS, lands bounded by, 59, 67. dedication of, 73. obstruction of, 395. what is a highway, 396. purprestures, 397. what is an obstruction, 398. duration of obstruction, 399. objects near highway, 400. authorized obstruction, 401. HOLDER OF BILL OR NOTE, 231. duty of, 232. HOLIDAY, legal, 122. HOMAGE, 86. HOMICIDE, murder in first degree, 648. murder in second degree, 648. voluntary manslaughter, 649. involuntary manslaughter, 650. justifiable, 651. malice, 652. dying declarations, 565, 687. INDEX. 441 [References are to sections.} HUSBAND AND WIFE, marriage, 444-447. duties and rights of, 448. divorce, 449. injuries between, 450. injuries by third persons, 451. antenuptial agreements, 132. dower, 132. assignment of dower, 133. frauds, 353. crimes, 616. polygamy, 636. I IGNORANCE, of fact, 372, 613. of law, 370, 614. ILLEGAL CONTRACT, 186. ILLEGITIMATE CHILDREN, inheritance by, 150. who are, 452. IMPANELING JURY, 684. IMPLICATION, repeal by, 30. IMPLIED CONTRACTS, 193. IMPLIED LICENSE, 522. IMPLIED REVOCATION OF WILLS, 153-157. IMPOSSIBLE CONTRACTS, 186. INADEQUACY OF CONSIDERATION, 252. INCEST, 653. INCORPOREAL PROPERTY, 69-81. definitions, 53, 69, 490, 491. kinds, 69. wrongs to, 490-497. statutory provisions, 492. patents, 493. copyrights, 494. rights independent of statute, 495. private letters, 496. trade-marks, 497. 442 INDEX. [References are to sections.} INCREASE, title by, 176. INDIANS, titles of, 57. injustice to, 58. INDICTMENT AND INFORMATION, 681. INDICTMENT, pleas to, 682. INDORSEMENT, 231. special, 233. in blank, 233. INDORSER, denned, 236. INFAMOUS CRIME, 606. INFANCY, a personal privilege, 199. INFANTS, contracts of, 195, 196. emancipation of, 196, 453. frauds of, 198, 356. frauds upon, 356. negligence of, 416, 434. parent and child, 452-460. guardian and ward, 461-469. suits by, 464-466. recovery for death of, 280. capacity to commit crime, 604. INJUNCTION, when granted, 577. prohibitory, 577. mandatory, 577. temporary, 577. perpetual, 577. against defamation, 330. against unlawful combinations, 350. frauds, 382. nuisance, 430. patents, 492. copyrights, 495. INDEX. 443 [References are to sections.'] INJUNCTION— Con tin ued. trade-marks and names, 497. personal property, 507. real property, 517. INLAND BILLS OF EXCHANGE, 229. INSANE, contracts of, 202. frauds against, 362. guardian of, 469. negligence of, 414, 430. crimes of, 620. INSURANCE, contract of, definition, 243. parties, 243. may be by parol, 243. what may be insured, 243. form of contract, 244. interpretation of, 245. warranty and representation distinguished, 246. fraud in, 246. premium, payment of, 247. waiver of payment of premium, 248. insurable interest, 249. increase of risk, 250. INSTRUCTIONS, 568. INTENT, in crimes, 611. in assault and battery, 282, 284. in malicious prosecution, 299. in defamation, 319. in fraud, 377. in nuisance, 387. in negligence, 409. INTERNATIONAL LAW, origin of, 13. how enforced, 13. conventional law of nations, 14. rights of neutrals, 15. rights of belligerents, 16. INTERPLEADER, 215, 578. 444 INDEX. [References are to sections."] INTERPRETATION, what is and office of, 28. rules of, 28. of penal statutes, 28. of remedial statutes, 28. of statutes in pari materia, 28. of statutes against frauds, 28. of statutes in derogation of common law, 28. technical words, 28. preamble and title, when considered, 31. effect of contemporaneous, 31. proviso, how regarded, 31. of contracts, 214. of insurance contracts, 245. of libel and slander, 317. INTERSTATE LAW, 17-19. INTESTATE AND TESTATOR, 178. domicile, law of, as to property, 19. ISLANDS, ownership of, 61. ISSUES OF FACT OR LAW, 555. JOINT TENANCY, 143. JUDGMENT, title by, 176. arrest of, 571. notwithstanding verdict, 571. forms of, 572. by confession, 572. by default, 572. upon nonsuit, 572. upon demurrer, 572. upon verdict, 572. interlocutory, 572. final, 572. in malicious prosecutions, 300, 301. JUDICIAL NOTICE, 560. JUDICIAL OFFICERS, liability and privilege of, 324, 344. JUDICIAL LEGISLATION, 35. INDEX. 445 [References are tv sections.'] JURISDICTION, defined, 344, 530. of United States supreme court, 537. of circuit courts of appeals, 538. of circuit courts of United States, 539. of district courts of United States, 540. of court of claims, 541. of court of private land claims, 542. of state courts, 546. concurrent of state courts and United States courts, 536. objections to, how and when made, 553. in equity, 575. of crimes, 622, 623. JURY, 556, 559, 569. empaneling, 684. conduct in criminal cases, 690. verdict of, 690. JUSTIFICATION, for assault and battery, 286, 633. in defamation, 320. K KIDNAPING, 627. KIN, next of, recovery for injuries causing death, 280. KIND, rents payable in, 79. KING, lord paramount, 95, 96. KNIGHT SERVICE, 99. L LAND, defined, 59. bounded by streams, 60. extent of, 65. boundary line of, 66. bounded by highways, 67. wrongs to, 508-528. contract for sale under statute of frauds, 266. deeds of lands held adversely, 560. 446 INDEX. [References are to sections.] LARCENY, 654-656. LAWS, in general, 1-12. necessity for, 1. human, 2. and morals, 4. of the United States, 3, 10-12. of England, 3. municipal, defined, 4. rules of law, object of, 6. duty to obey, 8. kinds of, in United States, 10. written and unwritten, 10-12, 23-39. international, 13-19. interstate, 17, 18. judicial notice of, 18. merchant, origin of, 34, 228. of place, 18, 237. of forum, fixes mode of redress, 18. misrepresentation of, 370. LEADING QUESTIONS, 566. LEGAL RIGHTS, 40. LEGATEE, 181. LEGISLATURE, functions of, 7. privilege of, 323. liability of, 342. LIBEL IN ADMIRALTY, 584. LIBEL AND SLANDER, 306, 331. slander defined, 307. slander imputing crime, 308. slander imputing disease, 309. slander affecting office, etc., 310. slander actionable by reason of special damages, 311. slander of title, 312. libel defined, 313, 314. rights of newspapers, 315. publication of words, 316. construction of words, 317. certainty in, 318. INDEX. 447 [References are to sections.] LIBEL AND SLANDER— Continued. malice in, 319. justification in, 320. privilege in, 321. absolute privilege, 322. legislative proceedings, 323. judicial proceedings, 324. naval and military matters, 325. qualified privilege, 326. matters of public interest, 327. communications under duty, 328. communications in self-defense, 329. remedies, 330. damages, 331. criminal, 657. LICENSE, not an easement, 76. to enter upon land, 522. LIEN, how created, 80, 81. statutory, 80. equitable, 80. by contract, 81. common law, 81. LIFE, right to, 43, 277. when may be taken, 278. civil remedies for unlawful taking, 279, 280. estates for, 115. rights of life tenant, 116. self-defense, 287, 611. insurance of, 243-250. LIMITED PARTNERSHIP, 225. LIMITATIONS, statute of, 17, 146, 147. LORD, paramount, 95. middle, 96. LUNATICS, contracts of, 195, 202. See Insanity. 448 INDEX. [References are to sections.] M MAINTENANCE, 634. MALICE, in libel and slander, 319. criminal, 652. MALICIOUS PROSECUTION, 298-304. elements of, 298. motive, 299. want of probable cause, 300. termination of, 301. of civil actions, 302. abuse of process, 303. remedies for, 304. MALICIOUS TRESPASS, 658. MANDAMUS, 585, 586. . MANDATORY INJUNCTION, 577. MANSLAUGHTER, « voluntary, 649. involuntary, 650. MARRIAGE, right of, under feudal system, 84, 104. title by, 149. agreements for, under statute of frauds, 265. defined, 444. illegal, 445. ceremony of, 446. foreign, 447. MARRIED WOMEN, contracts of, 204. crimes of, 616. torts of, 448. wrongs to, 450, 451. defense of, 287. MASTER AND SERVANT, 470-489. growth of relation, 470. apprentices, 471. who is master or servant, 472. independent contractor, 473. contract between master and servant, 474. [NDEX. 449 [References arc to MCt/ioni."] MASTER AND BERVANT— Continued. termination of relation, 475. discharge by master, 476. abandonment by servant, 477. wrongs growing out of relation independent of contract, 478. liability of third persons to master, 479. liability of third persons to servant, 480. liability of master for injury to others, 481. intentional and unintentional injuries, 482. liability of servant for injuries to others, 483. master's liability to servant, 484. duties of master to servant, 485. risks assumed by servant, 486. fellow-servants, 487. vice-principal, 488. servant's liability to master, 489. MAYHEM, 659. MEETING OF MINDS, 191. MEMORANDUM, under statute of frauds, 268. signature to, 269. MIDDLE LORDS, 96. MILITARY SERYICE, feudal system, 87. MISPRISION OF TREASON. 667. MIXED PROPERTY, 53. MORALS AND LAW, 4. MODERN TENURES 107. MONTH, 122. MORTGAGES, 137. MOTION FOR NEW TRIAL, 691. MUNICIPAL LAW, 4. rules of, 6. MURDER, 648. 29 450 INDEX. [References are to sections.} N NATIONS, law of, 13-19. NATURALIZATION, under laws of the United States, 21. under state laws, 21. NATURAL RIGHTS, 40, 41. NAVIGABLE STREAMS, jurisdiction over, 583. as boundaries, 60, 66. torts on, 583. NECESSARIES, what are, 197. NEGLIGENCE, 405-435. ! actionable, 405. in contract or tort, 406. elements of, 407. definition, 408. inadvertence, 409. inevitable accident, 410. ordinary care, 411. no degrees in, 412. acts or omissions, 413. acts of irresponsible persons, 414. intoxication, 415. of persons physically infirm, 416. the person to whom duty is owing, 417. the duty, 418. duty implied by law, 419. damages, 420. cause and effect, 421. legal connection of, cause and effect, 422. proximate cause, 423. plaintiff's own conduct, 424. plaintiff's unlawful act, 425. contributory negligence, 426. tests of contributory negligence, 427. plaintiff's knowledge of danger, 428. INDEX. 451 [References are to sections.] NEGLIGENCE— Continued. danger incurred to save life or discharge duty, 429. persons of defective powers, 430. misleading conduct, 431. imputable negligence, 432. passenger and carrier, imputed negligence of, 433. children, imputed negligence, 434. presumptions as to negligence, 435. criminal, 612. NEGOTIABLE INSTRUMENTS, 227-242. NEUTRALITY, 15. NEWSPAPERS, libels by, 315. liberty of press, 336. NEW TRIAL, civil cases, 570. criminal cases, 691. NEXT FRIEND OF INFANT, 466. NOTICE OF PROTEST, 232. NUISANCE, how related to negligence, 384. defined, 385. coming to a nuisance, 386. intent or motive in, 387. care or negligence in, 388. m what may be, 389. ,« kinds of, 390. public, 391. n private, 392. mixed, public and private, 393. ,- authorized, 394. obstructing highways, 395-402. special injury, 402. remedies, 403. evidence of, 404. to real property, 516. criminal, 660. NUNCUPATIVE WILLS, 154. 452 INDEX. [References are to sections."] OBSTRUCTION OF HIGHWAYS, 395-402. OCCUPANCY, title by, 146. title to personal property by, 176. OCCUPYING CLAIMANT, rights of, 148. OFFICERS, deeds by, 168. military, arrest by, 292. peace, arrest by, 292, 294. performance of duties of, 341. OFFICES AND DIGNITIES, 77. OPINIONS, when frauds, 371. OWNERSHIP, basis of, 50. private, 51. P PARAVAIL, tenant, 96. PARENT AND CHILD, 452-460, rules of descent, 150, 151, 453. defense of, 287. right to punish, 286. right to restrain, 292. legitimate and illegitimate child, 452. rights and duties of parent and child, 453. emancipation, 196, 453. wrongs between parent and child, 454. wrongs by third persons, 455. child's interest in parent, 456. parent's interest in child, 457. physical injuries to child, 458. enticing away child, 459. seduction of child, 460. frauds of, 356. INDEX. 453 [References are to sections.'] PAROL CONTRACT, 189. evidence, 561. PARTIES, to actions, 549. to contracts, 195-209. PARTITION, proceedings for, 601. PARTITION FENCES, 76. PARTNERS, deeds of, 165. as agents, 206. frauds of, 359. promissory notes of, 238. imputed negligence, 432. PARTNERSHIP, definition, 217. partners agents for one another, 217. how formed, 217, 218. silent partner, 217. nominal partner, 217. ostensible, 217. retiring partner, what notice necessary, 217. rights and powers of partners before dissolution, 218. rights and powers of partners after dissolution, 218, 224. how dissolved, 220. winding up of business of, 221. dissolution by death, 222. creditors of, 223. creditors of individual partner, 223. limited, 225. good will, 226. promissory note of, 238. PARTY WALLS, 76. PATENT RIGHTS, 493. PAYEE, 230. PENAL STATUTES, how construed, 28. PERJURY, 661. 454 INDEX. [References are to sections."] PERSON, security of, 42, 277. liberty of, 44. PHYSICIAN, frauds of, 361. privilege of, 563. PERSIANS, ancient custom on death of king, 1. PERSONAL PROPERTY, 53, 175-177. descent of, 19. title to, how acquired, 176. occupancy, 176. accession, 176. confusion, 176. gift, 176. bill of sale, 176. succession, 176. bequest, 176. operation of law, 176. sales by executors, administrators, etc., 176. judicial and execution sales, 176. burial rights, 177. wrongs to, 498-507. trespass by force, 499. possession, 500. the force, 501. conversion, 502. conversion by persons rightfully in possession, 503. demand for possession, 504. conversion by tenants in common, 505. taken by legal process, 506. remedies for wrongs to, 507. PIRACY, 662. PLACE, law of, fixes rights of parties to contract, 18, 237. PLEADINGS, complaint bill or declaration, 549. pleas and answers to jurisdiction, 552, 553. demurrers, 552. confession and avoidance, 552. INDEX. 455 [References are to sections.'} PLEADINGS— Continued. abatement, 553. in equity, 580. in admiralty, 584. mandamus, 586. quo warranto, 587, 588. prohibition, 589. habeas corpus, 591. partition, 601. POLICY OF INSURANCE, 243. POLYGAMY, 636. POSTHUMOUS CHILD, effect of birth to revoke will, 155. PRECEDENT, condition, 137. PRECEDENTS, importance of, 37. PREMIUM, in insurance contract, 247. waiver of payment of, 248. PRESUMPTIONS, 560. PRIMER SEIZIN, 102. PRINCIPAL AND AGENT. See Agent. frauds of, 358. crimes of, 617. PRINCIPAL AND ACCESSORY, 618. PRIVATE LETTERS, 496. PRIVATE OWNERSHIP, 51, 52. PRIVILEGE, from arrest, who may claim, 296. in libel and slander, 34. PRIVILEGED COMMUNICATIONS, 328, 361, 563. PRIZE FIGHTING, 628. PROCESS, 550, 551. abuse of, 303. PROHIBITION, writ of, 589. 456 INDEX. [References are to sections.] PROMISES, when frauds, 373. PROMISSORY NOTE, 227-241. definition of, 227. negotiability, 228. protest, 232. indorsement, 233, 236. signature to, 234. certainty, 235. surety, 236. guarantor, 236. assignor, 236. law of place, 237. of agents, 238. of partners, 238. capacity of parties, 239. consideration of, 240. innocent purchaser, 241. PROOF, kinds of, 558, PROPERTY, right to, 48, 49, 346. kinds of, 50-53. real, 53. personal, 53. mixed, 53. corporeal, 53. incorporeal, 53. right to protect, 287. wrongs to incorporeal property, 490-497. wrongs to personal property, 498-507. wrongs to real property, 508-528. PROTEST OF NEGOTIABLE INSTRUMENTS, 232. notice of, 232. PUBLIC DUTIES, of private persons, 345. of officers, 341-344. PUBLICATION, notice by, 122. PUBLICATION IN LIBEL AND SLANDER. 316. INDEX. 457 [Reference* are to sections.] PUNISHMENT OF CRIMES, 603, 621. PURCHASE, title by, 158. PURCHASER, innocent, 241. PURPRESTURE, 397. Q QUA SI CORPORATION, 271. QUASI CONTRACTS, 193. QUIT-CLAIM DEED, 158. QUO WARRANTO, 587, 588. R RAPE, 663. RATIFICATION. of agent's acts, 208. of contract by infant, 196-200. of contract procured by duress, 201. of contract made by intoxicated person, 203. REAL PROPERTY, 53-68, 111-181, 508-528. title to in United States, 54-57. defined, 53, 59. Indian titles, 57. boundaries by streams, 60. islands, 61, 62. fixtures, 63. boundary lines, 65, 519. highway as boundary, 67. appurtenances, 68. estates in, 111-144. fee-simple, 112. fee-simple in abeyance, 113. use of word heirs, 114, 139. life estate, 115. rights of life tenant, 116-119. estates for years, 120. emblements, 1 17, 120. rents, 121, 121. term of tenancy, 122. 458 INDEX - [References are to sections."] REAL PROPERTY— Continued. distress, 123. estate at will, 125. estate at sufferance, 126. base fee, 127. conditional fee, 128. estate tail, 129, 130. curtesy, 131. dower, 132, 133, 163. estates upon condition, 134-137. remainders, 138. rule in Shelley's Case, 139. executory devises, 140. reversions, 141. estates in severalty, 142. joint tenancy, 143. estate by entirety, 143. estates in common, 144. title, how acquired, 145-174. occupancy, 146. adverse possession, 147. occupying claimants, 148. descent, 19, 150, 151. devise and wills, 152-157. purchase, 158. title bond, 158, 159. warranty, covenants of, 158. deeds of conveyance, 158, 160-169. deeds of lalid held adversely, 160. forms of deeds, 161. recording deeds, 162. execution of deeds, 163. deeds of guardians, 164. deeds of partners, 165. deeds by corporations, 166. power of attorney, 167. deeds by officers, 168. description of in deed, 169. eminent domain, 170-172. escheat, 173. forfeiture, 174. administrator and executor — rights in real estate, 180, 181. index. 459 [References are to sections.'] REAL PROPERTY— Continued. contract for sale under statute of frauds, 266. owner, rights of, 508. dispossession. 509. unlawful detention, 510. remedies for injuries to, 511, 512. injuries to, 512. waste, 513-515. remedies for waste, 515. nuisances affecting land, 516, 517. remedies for, 517. boundaries of, 519. trespass upon, 518, 520. who may be trespasser, 520. license to enter upon, 521-528. implied license, 522. express license, 523. effect of statute of frauds on license, 524. license by law, 525-527. condemnation proceedings, 527. effect of exceeding license, 528. remedies for wrongs to, 511, 515, 517. RECOGNIZANCE, 194. RECORD, contracts of, 194. RECOVERIES, common, 129. REGISTRATION OF DEEDS, 162. RELEASE, part payment as consideration for, 253. mutual by creditors, 254. of disputed claims, 255. RELIEFS, 88, 101. REMAINDER, estate in, 138. vested and contingent, 138. REMEDIAL STATUTES, how construed, 28. REMEDIES, law of place, 17. 460 INDEX - [References are to sections, ,] RENTS, defined, 79, 121. ■when due, 121. how payable, 122. apportionment of, 124. distress for, 123. forfeiture for non-payment, 121. effect of destruction of premises, 121. REPEAL, by implication, 30. of repealing statute, effect of, 30. REPRESENTATION, in insurance contracts, 246. fraudulent, 368-380. false by infant, 198. distinguished from warranty, 246, 368. REPUTATION, right to, 47, 305. defamation, 305-330. BES GESTjE, 565. REVERSION, estates in, 141. REVOCATION, of will, 155. of agency, 209. of dedication of highway, 73. of license to enter on land, 523. RIGHT OF MARRIAGE, under feudal system, 84, 104. RIGHT OF WARDSHIP, under feudal system, 84, 103. RIGHT OF WAY, 73-75. by prescription, 73. by dedication, 73. by statutory proceedings, 73. private, 74. temporary, 75. implied, 74. by grant, 74. INDEX. 461 [References are to sections.'} RIGHTS, 5, 40-49. moral and legal, 5. definition, 40. absolute and relative, 40. natural, 40, 41. of personal security, 42, 277-288. to life, 43, 277. of personal liberty, 44, 289-296. to health, 46. to reputation, 47, 305. to property, 48, 49, 346. civil and political, 332-350. of suffrage, 333. to assemble, 334. to bear arms, 335. to freedom of speech and press, 336. to office, 337. to religious liberty, 338. to education, 339. against unlawful searches, 340. to performance of official duties, 341-344. to make contracts, 347. to employ labor and do business, 348. to marry, 443. RIOT, 664. RISK IN INSURANCE CONTRACTS, 250. ROBBERY, 665. RULE IN SHELLEY'S CASE, 139. s SALES OF PERSONAL PROPERTY, title by, 176. essentials of, 210. existence of thing sold, 211. stoppage in transitu, right of, 212. transfer of title, 212. delivt-ry and payment, 213. rescission of, for fraud, 211. warranty in, I'll. 462 INDEX. [References are to sections.'] SALES OF PERSONAL PROPERTY— Continued. fraudulent sales, 213. when seller retains possession, 213. how affected by statute of frauds, 270. memorandum under statute of frauds, 268-270. SALES OF LANDS, effect of statute of frauds on, 266. note or memorandum under, 268. by executors and administrators, 180, 181. judicial and execution sales, 176. in partition proceedings, 601. SATISFACTION, when good, 600. SEDUCTION, 460, 666. SELF-DEFENSE, 287, 615. SENATE AS A COURT, 532. SEVERALTY, estates in, 142. SHELLEY'S CASE, rule in, 139. SHERIFF, 548. SHIP'S HUSBAND, 207. SHIP'S MASTER, 207. SIGNATURE, under statute of frauds, 269. SILENCE, as fraud, 365. SLANDER, 306-331. See Libel and Slander. SOCAGE, free, 982. SODOMY, 635. SOVEREIGNS, crimes of, 624. SPECIAL PROCEEDINGS, 585-602. STATE, contracts of, 195. INDEX. 463 {References are to sections. 1 STATEMENT, opening, 685. STATUS AND CONTRACT, 182. STATUTES, 24-30. of United States and states, 24. when in force, 24. validity of, 25. must not violate constitution, 25. retroactive, 26. prospective, 26. public, 27. private, 27. ex post facto, 26. remedial, 26. interpretation of, 28. penal, 28. technical words in, 28. in derogation of common law, 28. judicial legislation, 29. repugnant, 30. STATUTE OF FRAUDS, 260-270. origin of, 260. provisions of, 261. promises of executors and administrators, 262. debt, default and miscarriage, 263. liability must be collateral, 264. agreements in consideration of marriage, 265. contract for sale of lands, 266. agreements not to be performed within one year, 267. note or memorandum, 268. signature to memorandum, 269. sale of goods, 270. STATUTE OF LIMITATIONS, 146, 147. STOPPAGE W TRANSITU, 212. STREAMS, land bounded by, 60. pollution of, 60. use of, 60. See Navigable Streams. STRIKES, 349. 464 INDEX. [References are to sections."] SUBINFEUDATION, 91. SUBPCENA, 562. SUBPCENA DUCES TECUM, 562. SUBSEQUENT CONDITION, 137. SUCCESSION TO PERSONAL PROPERTY, title by, 176. SUFFERANCE, estates at, 126. SUNDAY, 122. SUPREME COURT OF THE UNITED STATES, powers, 7, 9. jurisdiction of, 535. SUPREME POWER OF STATE, 7. SURETY DEFINED, 236. T TAIL, estates in, 129, 130. TENANT, by curtesy, 131. TENEMENT, denned, 59, 94. TENURES, 93-144. ancient, 93-106. modern, 107-144. in United States, how affected by feudal system, 107-108. TERRITORIAL COURTS, 544. TESTATE AND INTESTATE, 178. TIME, how computed, 122. TITHES, 71. TITLE, in real estate, how acquired, 145-174. sources of in United States, 55, 109, 110. by treaty, 56. derived from Indians, 57. by occupancy, 146. by adverse possession, 147. INDEX. 465 [References are to sections."] TITLE— Continued. of occupying claimant, 148. by marriage, 149. by descent, 150. by devise, 152. by purchase, 158. by partition, 601. bv eminent domain, 170-172. by escheat, 173. by forfeiture, 174. TITLE TO PERSONAL PROPERTY, how acquired, 176. by occupancy, 176. by increase, 17f>. by confusion, 176. by gift, 176. by sale, 176. by succession or descent, 176. by bequest, 176. by judicial decree, 176. • when it passes under contract of sale, 212. TITLE, slander of, 312. TITLE BOND, 158, 159. TRADE-MARKS AND TRADE NAMES, 497. TREASON AND MISPRISION OF TREASON, 667. TREATIES, by law, 14. lands acquired by, 56. TRESPASS, on land, 518. malicious, 658. TRIAL, in civil cases, 557. in criminal cases, 677. in equity, 581. in admiralty, 584. TRUSTEES, frauds of, 357. 466 INDEX. {References are to sections."] TRUTH, in libel and slander, 320. u UNDERWRITER, 243. UNITED STATES COURTS. See Courts, 531-544. UNITED STATES COMMISSIONERS, 543. UNWRITTEN LAWS, 32. USAGE, different from custom, 39. V VENDOR'S LIEN, 80. VENUE, change of, 679. VERDICT, in civil cases, 569, 570. criminal cases, 690. VESTED REMAINDER, 138. VICE-PRINCIPAL, denned, 488. VILLENAGE, 98. VOID AND VOIDABLE CONTRACTS, 186. w WARDSHIP, 84, 103. WARRANTY DEED, 158. WARRANTY, denned, 368. of thing sold, 211. of title, 211. of quality, 211. apparent defects not covered by, 211. in insurance contracts, 246. distinguished from representation, 246, 368. WARRANT FOR ARREST, 669. when void or valid, 670. WASTE, 119, 513. INDEX. 4G7 [References are to sections.] WATER, right to use, 76. WAY, right of, 73. WEEK, 122. WILL, estates at, 125. WILLS. antiquity and origin of, 153. modern, creature of Roman law, 153 [~ (j who may make, 154. 3 ^ nuncupative, 154. LO L) how made and attested, 154. (J how revoked. 155. > " of land, how executed, 156. 2 ZZ how set aside, 157. ^ — \ foreign wills, 156. pq ~j_ codicils to, 154. r~ ' WITNESS I :s. H > in civil cases, 562-566. Ifl < in criminal cases, 686. " H in equity cases, 581. D in admiralty cases, 584. J- privileged communications, 563. f~~ privilege from arrest, 296. WRIT OF CERTIORARI, 602. WRIT OF ERROR, 573. WRITTEN CONTRACTS, 188. WRITTEN LAWS, 10-12, 23-31. Y YEAR, how computed, 122. agreement not to be performed within, 267. YEARS, estates for, 120. ^^ '•'^t , - 'il^- W " l, ' 1/1 c m < c ~ • n z n * r